In Google, LLC v. Oracle America, Inc., ___ U.S. ___ (2020), cert. granted Docket No. 18-956 (Nov. 15, 2019), the United States Supreme Court [hereinafter the Court] will resolve two commercially important questions. The first question is whether instructional source code known as declarations, as well as the organization of a computerized platform, in and of themselves are entitled to copyright protection. If they are so entitled, then the next question becomes whether copying of these features from the entire platform qualifies as fair use. It is undisputed that Google copied declarations and organization of Oracle’s JAVA SE computer code into its own Android computer programs without a license. Since then Android has become a commercially successful application in mobile phones.
In Oracle’s copyright infringement lawsuit, and after a remand from the Federal Circuit Court of Appeals [hereinafter ‘Federal Circuit’] the jury found that that there was fair use of Oracle’s declarations and computerized code organization. However, upon a second appeal the Federal Circuit reversed and concluded that there was no fair use as a matter of law, in large part because Google used these JAVA SE features for a commercial purpose in Oracle’s markets.
Now before the Court, Google provides several reasons why each of Oracle’s declarations and JAVA SE organization by themselves do not qualify for copyright protection. In part, Google contends that the declarations are merely “rote” instructions analogous to a short word or phrase in English, and therefore not copyright eligible. Google also contends that there is only one manner in which to write each declaration for a particular computerized function. Consequently, and as a matter of law, the tangible expression, i.e., Oracle’s declaration code, merges with the computer program function and does not qualify for copyright protection. Google also contended that the declarations comprised methods of operation and therefore were not eligible for protection under the copyright statute.
As for fair use, Google contends that the proper question is whether its new work transformed use of Oracle’s code, and that it did so because it became part of an entire new work, i.e., Android. Google further contends that it used only a small portion of Oracle’s work and created significantly more of its own new code for Android.
In part, Oracle’s copyright eligibility position is that there is no merger because the original authors selected from unlimited creative choices for (i) writing declaration code and (ii) organizing JAVA SE. Furthermore, Google’s characterization of declarations as unprotected functional methods of operation is misplaced, because (i) the Copyright Act protects all computer code without exception, and (ii) even though computer code is always functional. As to fair use because Google used Oracle’s declarations and JAVA SE organization to create a commercial superseding use in Oracle’s markets then this defense fails. Oracle further observed that the amount of code Google copied is irrelevant, because this particular code was critical to Android’s success, and it was not merely a selection of trivial code without expressive value. Also significant is that Oracle found Google’s use non-transformative, because the copied code became part of Google’s Android product with the same purpose as in JAVA SE and with no modifications to the copied code.
Stay tuned for oral argument and the Supreme Court decision!
 Fair use of a portion of an author’s original work comprises a defense to copyright infringement, and fair use generally applies to research or satirical works. One factor against finding fair use is whether a portion of a work is used for the copier’s commercial purpose in the original author’s or owner’s market.