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Supreme Court Expands Ability to Copy Underlying Software

The U.S. Supreme Court has expanded the ability for computer programmers to use software created by others as the basis of the programmers’ own work, without having to license or pay for the original they are taking from. In its April 5, 2021, decision, Google v. Oracle, the Court continued its trend of expanding the concept of copyright “fair use,” determining that Google could use various software programming building blocks created by Oracle — specifically Application Programming Interface (API) — as the foundation for Google’s further creation of particular programs for its Android smartphone. This decision increases the right of software developers to incorporate available API routines as a basis for their own applications without needing a license.

Justice Stephen Breyer explained that software is protectable under copyright law, but it is not given as broad protection as more artistically creative works, such as fiction writing and fine art. Thus, one who copies software may more readily avoid infringement by asserting the copyright fair use defense. In Google v. Oracle, the Court weighed all four fair use factors in favor of Google — the copier. In considering “the nature of the copyrighted work,” the Court found it important that Oracle encouraged others to use its API to create their own new works and broaden the market for its Android product, minimizing the strength of the copyright. As to “the purpose and character” of Google’s use of the API, Justice Breyer emphasized: “To repeat, Google, through Android, provided a new collection of tasks operating in a distinct and different computing environment.” This “reimplementation” of the API supported Google’s position. Weighing the factor of “the amount and substantiality of the portion used,” the Court considered the 11,500 lines of code copied as against more than 2 million lines in the entire API, and opined that “the ‘substantiality’ factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.” The Court reasoned that the fourth — and often most important — fair use factor of “market effect” also weighed in Google’s favor due to the public benefit of allowing others to use the API for promoting innovation and the uncertainty that the copying would even lead to a viable product.

As a result of this decision, software developers looking for a market edge due to their painstaking creation of new software should be nervous that it is now easier for others to use foundational software, which took great efforts to develop. Programmers looking to reimplement another’s API now have less risk in doing so.


Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com