Fair use is a statutory doctrine codified in 17 USC 107 in which activities that otherwise constitute copyright infringement are protected from copyright liability.¹ The doctrine is typically invoked on the grounds of free speech or education, such as “criticism, comment, news reporting, teaching, scholarship, or research.”² In the context of software, fair use has been successfully invoked in the interests of achieving interoperability.³

Oracle sued Google for copyright infringement because Google’s Android operating system included code copied verbatim from Oracle’s highly popular Java SE software. The 2021 decision by the U.S. Supreme Court in Google v. Oracle addressed whether such copying constituted fair use under 17 USC 107.⁴ In finding that Google’s copying constituted fair use, the Court relied on a technological distinction between two types of computer code, declaring code and implementing code. Only declaring code was copied by Google, so implementing code was “not at issue” in the dispute.⁵

DECLARING CODE VS. IMPLEMENTING CODE

As the Court saw fit to explain the distinction between declaring code and implementing code prior to engaging in a full legal analysis of 17 USC 107, this author will follow that example. Declaring code is the basic language of what tasks are called and how they are organized and is considered “an interface between human beings and a machine,”⁶ while implementing code defines the operations and outputs of the program.⁷ Oracle’s Java software “includes both the declaring code that links each part of the method call to the particular task-implementing program, and the implementing code that actually carries it out.”⁸

Declaring code “performs an organizational function” that the Court compared to the “Dewey Decimal System that categorizes books into an accessible system or a travel guide that arranges a city’s attractions into different categories.”⁹ Implementing code is the code that actually instructs the computer on how to perform the desired function.¹⁰ To expand the metaphor, declaring code titles the books and organizes them on the shelves of the library, while the implementing code instructs the computer to seek out a specific book, read its content, and bring that knowledge somewhere else to perform a set task.

The distinction between declaring and implementing code permeates the entire decision in Google v. Oracle, but that distinction is not directly or expressly communicated in the Copyright Act¹¹ or any preexisting doctrine in copyright law.

COPYRIGHT PROTECTION OF SOFTWARE

Copyright law is directed to the protection of creative expression stored or recorded in a tangible medium.¹² For copyright law purposes, computer programming code is a literary work because the creativity is “expressed in words, numbers, or other verbal or numerical symbols or indicia” in a manner resembling the authorship of a novel or screenplay.¹³

Copyright protection for software has historically been an unnatural fit as software is typically valued for what it does and not the creative elegance with which the code was authored. In 1980, the definition of “computer program” was added to 17 USC 101, and 17 USC 117 was amended to specifically address issues pertaining to the use and archiving of software.¹⁴

Copyright law covers a wide range of very different categories of creative expression. Poetry, novels, scripts, sculptures, paintings, movies, photographs, architectural blueprints, animations, sound recordings, sheet music, and computer programs are vastly different from one another, but each is subject to common principles of copyright law. The specific attributes of different fields of creativity do not alter otherwise generally applicable principles per se, but they can and do impact the practical application of those principles.

Even outside the context of highly technical subfields such as operating systems and programming languages, fair use in a copyright dispute is ultimately an all-or-nothing proposition. Distinctions based on highly nuanced categories and subcategories of copyrightable works can substantially increase risk and volatility. A party engaged in verbatim copying is particularly dependent upon a fair use defense. Such a defense will either succeed in avoiding any measure of liability for copyright infringement or fail, triggering liabilities and remedies that can include injunctions,¹⁵ actual damages,¹⁶ statutory damages,¹⁷ damage multiples for willful infringement,¹⁸ and the recovery of attorney fees.¹⁹ Few outcomes fall between success and failure and the advantages in being first to market with new product offerings created with the benefit of tried and true code components can be a powerful incentive in the highly competitive software industry.

As acknowledged in Google v. Oracle, Google’s Android operating system is highly successful, popular, and productive, resulting in more than $42 billion in revenue from the date of its launch through 2015.²⁰ Nobody can say for certain what would have happened had Google either licensed Java from Oracle or alternatively developed Android from scratch without copying 11,500 lines of Oracle’s declaring code.

Prior to Google v. Oracle, there were few examples of fair use in the context of verbatim software copying by a for-profit enterprise that had a dramatic impact on the market of copied copyrighted work. In Harper & Row v. Nation Enterprises, the U.S. Supreme Court held the “single most important element of fair use [is] the effect of the use upon the potential market for or value of the copyrighted work.”²¹ Prior to Android, “nearly every mobile phone on the market contained the Java platform” owned by Oracle.²² The impact of Android has been dramatic and substantial, as Android is now “the largest mobile operating system in the world.”²³

The outcome of Google v. Oracle reinforces what was always true, that copying for commercial gain does not per se preclude a successful fair use defense. While not a per se rule, not copying for commercial gain was a generalized rule of thumb — one which now has a very recent and highly publicized exception. Whether this is a relatively narrow tweaking of fair use doctrine or not depends largely on whether the holding is limited to declaring code,²⁴ leaving the fair use of implementing code unaffected. If that distinction is firmly and inexorably entrenched in the holding, then there may be little reason to expect significant changes in future fair use determinations. Conversely, if the holding is not limited to declaring code, the landscape of fair use doctrine and its practical implications in the competitive software marketplace may be significant.

JAVA APPLICATION PROGRAMMING INTERFACE

Oracle’s Java SE software is the copyrighted work at issue in the case. Java SE is an application programming interface (API).²⁵ The SE platform “allowed developers using the Java language to write programs that were able to run on any desktop or laptop computer, regardless of the underlying hardware (i.e., the programs were in large part ‘interoperable’).”²⁶ Oracle’s API allows developers to “draw upon a vast library of prewritten code to carry out complex tasks.”²⁷ The entirety of the Java API totaled 2.8 million lines of code, a number that includes both implementing code and declaring code.²⁸

One of the slogans that described the essence of the virtual machine approach of Java and why it was so popular with developers was its “write once, run everywhere” approach.²⁹ It was Oracle’s insistence that Java licensees make their code similarly interoperable in any device or computing environment that ultimately resulted in Google’s decision to build its own platform rather than license Java.³⁰ Google wanted Android to be a free and open platform that placed minimal restrictions on its users and, as such, Google was not interested in requiring the future Android development community to comply with Oracle’s interoperability requirement.

ANDROID OPERATING SYSTEM SOFTWARE

Google’s Android software is an operating system and while functioning as a “software platform for mobile devices like smartphones,”³¹ it is software in and of itself. As the Court explained:

A platform provides the necessary infrastructure for computer programmers to develop new programs and applications. One might think of a software platform as a kind of factory floor where computer programmers (analogous to autoworkers, designers, or manufacturers) might come, use sets of tools found there, and create new applications for use in, say, smartphones.³²

Google’s goal was an “Android platform that was free and open, such that software developers could use the tools found there free of charge.”³³ The “idea was that more developers using its Android platform would develop ever more Android-based applications, all of which would make Google’s Android-based smartphones more attractive” to consumers.³⁴ That vision for commercial success “required attracting a sizeable number of skilled programmers” to build applications on the platform.³⁵ Java programming language was very popular in the context of desktop and laptop computing; Google wanted that pool of developers to work on Android applications.³⁶

The development of Android required three years of work by “roughly 100 Google engineers.”³⁷ To make the platform attractive to millions of programmers familiar with Java, Google “copied roughly 11,500 lines of declaring code from the Java SE program” as part of a development effort that involved “millions of lines of new code.”³⁸

FOUR FACTORS OF FAIR USE

Fair use limits the scope of copyright protection for important purposes such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”³⁹ None of those purposes appears to be directly advanced by the creation of an operating system for mobile computing devices, but the four statutory elements nonetheless apply:

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, includ-ing whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.⁴⁰

The majority opinion in Google v. Oracle found that all four factors favored Google’s assertion of fair use. The basis of that determination, within each factor, distinguishes declaration code from implementing code.

Factor 1: Purpose and Character of the Use

This factor focuses on whether the copier’s work is “transformative” such that the “copier’s use ‘adds something new.’”⁴¹ The Court found that Google copied portions of the Java API “precisely,” and that it did so “for the same reason” that the API was created: “to enable programmers to call up implementing programs that would accomplish particular tasks.”⁴² The Court gave substantial weight to the transformative nature of bringing desktop and laptop computing to multiple devices.⁴³ The historical considerations of “commerciality and good faith” were also specifically addressed. The Court reasoned that there “is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use. But the inverse is not necessarily true.”⁴⁴

Factor 2: Nature of the Copyrighted Work

The Court characterized the Java API as a user interface for programmers.⁴⁵ That analogy has some merit, but one can question — as Supreme Court Justice Clarence Thomas did in the dissent — whether the Court would classify a measure of verbatim copying of a Broadway script as falling under fair use because it was a user interface for actors and directors.⁴⁶ The code components themselves were analyzed as being one of three categories: (1) implementing code; (2) method calls; and (3) declaring code.⁴⁷ The Court held that declaring code was inherently bound to uncopyrightable ideas:

But unlike many other programs, its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code). Unlike many other programs, its value in significant part derives from the value that those who do not hold copyrights, namely, computer programmers, invest of their own time and effort to learn the API’s system. And unlike many other programs, its value lies in its efforts to encourage programmers to learn and to use that system so that they will use (and continue to use) Sun-related implementing programs that Google did not copy.⁴⁸

Importantly, the Court specifically refrained from ruling on the copyrightability of declaring code to limit its holding to and narrowly resolve the present question of fair use.⁴⁹

Factor 3: Amount and Substantiality of Copying

This factor was held to favor Google based on copying only 11,500 lines of a total 2.86 million lines of code — 0.4% of Oracle’s copyrighted work. In creating Android, Google wrote millions of lines of new code.⁵⁰

Included in the analysis of this factor is a reference to the common use of Java API code by programmers.

Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.⁵¹

Factor 4: Effect on the Potential Market

In discussing this factor, the Court acknowledged the negative financial impact to Oracle but added that “a potential loss of revenue is not the whole story” and that “we must take into account the public benefits the copying will likely produce.”⁵² Google prevailed on this factor largely because of the transformational differences between mobile devices and non-mobile devices and evidence that Java’s presence in the mobile market was decreasing prior to the introduction of Android.⁵³

CONCLUSION

The successful invocation of fair use in the context of verbatim copying by a competitor in order to attract more interest in a product may entice more enterprises in the highly competitive software industry to engage in copying. Clients and their legal advisers would be well advised to discuss development practices with Google v. Oracle in mind. Different enterprises have different appetites and different tolerances for risk so even if a particular client is not looking to expand their use of copying, their competitors may be more willing to take on greater risk in the pursuit of greater rewards.

Google v. Oracle may end up having little or no impact on computer code outside the context of operating systems, development platforms, and programming languages, (i.e., computer programs designed for use by other computer programmers to develop software that businesses and consumers want to use.) Alternatively, Google v. Oracle may introduce a new legal strategy in software copyright cases encouraging creative lawyers to categorize code components in such a manner as to extend fair use protection in surprising ways.

The distinctions between declaring code and implementing code arose through technical innovations, and future innovations in technology may present opportunities to categorize software code in new and unexpected ways that will impact how copying code is treated under copyright laws. It would be prudent for lawyers and clients alike to try to anticipate how technological change can provide opportunities for legal innovations.