Functional Software’s Limited Copyright Coverage: Jury Finds Google’s Limited Use of Oracle’s Java™ Code Was Fair

By David Blau. A member of our Patent Practice Group

In 2010, Oracle sued Google over its implementation of the Java platform in smartphones running its Android™ operating system (OS). The Java platform is used to write and run programs written in the Java programming language and includes, among other things, the Java Virtual Machine and the Java application programming interface packages (“APIs”) that permit software developers to perform common functions without having to write equivalent code from scratch.

The APIs contained declaring code that reflects the structure, sequence, and organization (“SSO”) of the APIs. Although Google developed its own version of the Java Virtual Machine, for compatibility purposes Google literally copied the declaring code of 37 APIs and with it the SSO of those APIs.

In 2012, the trial court ruled that the APIs were not protectable under copyright law because they were essentially functional, not expressive. (Functional items are protectable, if at all, only under patent laws.)  The Federal Circuit reversed the trial court in 2014, ruling the SSO of the APIs to be protectable under copyright.  The appeals court instructed the trial court to consider whether the doctrine of fair use absolved Google of any liability in this case.  On May 26, 2016, a jury found that Google’s use of the declaring code was fair use, thus absolving Google of copyright liability in connection with its use of the APIs.

Fair use is a defense to copyright infringement, and helps balance the copyright owner’s property interest with the public’s interest in making some limited use of copyrighted works.  Uses of copyrighted works are often fair when portions of the work are copied for commentary, parody, scholarship, news reporting, or educational purposes.  Judges and juries will consider whether the use is commercial or educational, whether it transforms the underlying work, whether the work is more expressive or factual, how much and how important the portions copied were to the work as a whole, and whether the copying has (or could have) a negative financial impact on the copyright owner.  After weighing all of these factors, the jury determined that Google’s use of the Java API was fair, and thus not an infringement of copyright.

The origins of the legal dispute date to 1991, when the Java language was created at Sun Microsystems. Java slowly developed into a fully-featured platform, and in 1995 it was announced that Java would be included in one of the first web browsers, Netscape Navigator.  Java shortly became a valuable asset to Sun, which nevertheless released the bulk of its implementation as free and open source software (FOSS) in 2006. More...