Supreme Court Expands Upon Software Fair Use in Google v. Oracle
Summary
Many had hoped for a definitive decision that developers are free to use third-party application programming interfaces (APIs) to ensure interoperability and for other purposes. “These and related facts convince us that the purpose and character of Google’s copying was transformative—to the point where this factor too weighs in favor of fair use.” The Court expressly rejected the Federal Circuit’s holding that a commercial purpose is effectively definitive in weighing whether a given use of copyrighted code can be considered a fair use under Section 107. See, e.g., Sony Computer Entertainment v. Connectix Corporation; Sega Enterprises v. Accolade (“An attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression”); Lexmark International v. Static Control Components; (noting that where a subsequent user copied a computer program to foster functionality, it was not exploiting the program’s “commercial value as a copyrighted work”). The Court concluded that the “uncertain nature of Sun’s ability to compete in Android’s marketplace, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince us that this fourth factor—market effects— also weighs in favor of fair use.” The Supreme Court’s fair use analysis is likely to be seen as a watershed moment, even though it does not expressly overturn established precedent or overtly assert new legal principles. As noted above, by declining to address whether the declaration code in APIs are subject to copyright protection in the first place, or if instead they constitute unprotected systems and methods of operation and are excluded from copyright under Section 102(b), the Court left to the discretion of judges in future cases to determine, on a case-by-case basis, whether a given unlicensed use of a third party’s APIs is a fair use protected under Section 107.
