Googles win over Oracle unlicensed use of code considered fair use

What you need to know

• The United States Supreme Court has held that Google's use of the Java API owned by Oracle in Google's Android platform did not amount to copyright infringement.
• Google was able to rely on the doctrine of fair use to avoid liability, including because its use of the Java API amounted to a transformative use in that it applied the API in a new software environment.

What you need to do

• The doctrine of fair use is not recognised under Australian law and the exceptions to copyright infringement are far narrower in Australia. 

• If you are using computer code created by a third party in Australia without a licence, such use should be considered very carefully and legal advice should be obtained. The infringement analysis in Australia is likely to be different to that conducted in the US. 

Background

Oracle is the owner of the Java SE software platform, which comprises 2.86 million lines of computer code.

Google, without permission from Oracle, copied approximately 11,500 lines of that code when developing its Android software platform.  The Android software platform assists software developers to create programs to be used on the Android operating system (eg, to develop mobile applications).

Google used the Oracle code as part of an Application Programming Interface (API) for the Android platform.  The purpose of using the Oracle code was to enable programmers building applications for the Android platform to use the Java language that they were familiar with.

In 2010, Oracle commenced proceedings alleging that Google's use of the Java API, amongst other things, violated its copyright.

In April 2021, in a 6-2 decision, the Supreme Court held that Google's use of Oracle's code amounted to a fair use under United States Copyright law.  Given this, the Court did not consider the question as to whether the material copied was protected by copyright.

Fair Use

Under United States copyright law, the use of a copyrighted work is not an infringement where the use of the work is a fair use.  The Court held that Google had engaged in fair use by reference to the following factors:

Nature of the copyrighted work

The Court held that the Java API was a user interface – it provided a way through which programmers could control other computer programs.  It also considered that parts of the API were inextricably linked to the organisation of these other computer tasks (which would not be protected by copyright).  The Court considered that this, combined with the functional nature of the Java API, meant that the work was less protected by copyright than other works (including other types of software) and that this supported a finding of fair use.

Purpose and character of the use

The Court considered that Google's use of the Java API was transformative – Google's use added something new and important to the underlying work. 

Indeed, the purpose of Google's use of the Java API was to create new software products for the Android operating system, eg, by using an interface that was familiar to software developers, even if applied in a new software environment. 

Google's purpose was therefore held to be consistent with the creative process that is the objective of copyright under the United States Constitution – ie, to "promote the Progress of Science and the useful Arts".

Substantiality of the part copied

Google copied 11,500 lines of code from the Java API out of 2.86 million lines (around 0.4%).  The Court considered it was appropriate to consider the issue of substantiality in the context of the total code, including because the Java API is inseparably bound up to the other parts of the code (ie, a key function of the API is to call up those other lines of code).

Furthermore, the copied lines of code were inextricably linked to a valid, transformative purpose, meaning the substantiality of the part taken was less significant when assessing fair use.

Effect of the value of the copyrighted work

The Court was not convinced that Oracle had suffered loss through Google's use of the Java API. 

Evidence at trial demonstrated that Oracle (then Sun) was poorly positioned to succeed in the mobile phone market.  Furthermore, the Court considered that Android was not a substitute for Oracle's software – which was not for use on mobile phones.  As such, Google and Oracle operated in two distinct markets (even if the same programmer could work in both markets due to Google's use of the Java API).

The Court also noted, if Google's use was not protected through fair use, future innovation using the API would be stifled.

Would the same result apply in Australia?

The concept of fair use is not recognised under Australian law.  Instead, the Copyright Act 1968 (Cth) specifies a limited set of fair dealing exceptions to copyright infringement. 

The scope of these exceptions is far narrower than the general doctrine of fair use.  In addition to falling within the scope of an exception, the Australian Court will also consider whether the use is a "fair dealing".  This fair dealing analysis is different from that performed by the Supreme Court in the Google v Oracle case.  As such, anyone creating computer code in Australia using unlicensed third party material should carefully consider copyright infringement risks and seek Australian legal advice.

Authors: Helen Wei, Graduate; Ted Talas, Senior Associate; Nina Fitzgerald, Partner