Supreme Court Finds Fair Use In Google v. Oracle

by Timothy J. Maier on Sep. 28, 2021

Intellectual Property 

Summary: Supreme Court Finds Fair Use In Google v. Oracle

Last week, the Supreme Court issued their long awaited and highly anticipated decision in Google v. Oracle, which had been pending for a decade. In the 6-2 decision for Google, the Court ruled that Google’s use of Oracle’s code was Fair Use, reversing the Federal Circuit’s decision and allowing Google to escape the infringement allegations by Oracle.

The Case

The case centered around the Android operating system designed by Google in their first foray into the smartphone arena. In the coding, Google used 11,000 lines of the Java SE platform coding for common interface commands. Oracle, the current owner of the Java SE platform, filed suit on the basis that the use of the lines constituted infringement. While a jury found them to be “fair use”, the Federal Circuit disagreed, reversing the decision, and leading the case to the Supreme Court.

The Court granted certiorari on the following two questions:

(1) Whether copyright protection extends to a software interface; and

(2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

The Decision

Oral Arguments were heard last fall, leading to the decision issued here. The decision was authored by Justice Breyer and joined by Justices Roberts, Gorsuch, Kavanaugh, Sotomayor, and Kagan. Justice Thomas was joined by Justice Alito in his dissenting opinion. Justice Barrett had not yet joined the Court and accordingly did not play a role in the case.

The majority did not rule on the first issue of whether copyright protection extends to software interface, opting instead to focus on the second issue, where they ruled with the jury that Google’s use of a software interface in creating a new computer program was fair use. This determination upheld Google’s infringement defense, and eliminated Oracle’s infringement claims and potential damages. By skipping to the second question on the assumption that the code was protectable, the Court arrived at the same result that would have come from their determination in the first issue.

In his dissent, Justice Thomas objected to this majority’s assumption of copyrightability and performed the full analysis. He concluded that it was copyrightable, but only because it was specifically limited to exact functions, not merely the abstract use of declaring code. Thomas then did his own Fair Use analysis, finding three of the four factors favored Oracle over Google, and believed this was not an example of Fair Use.


While there are considerable aspects of copyright law which may be affected by this decision, the impacts could have even broader implications. Despite the 6-2 split, all 8 of the Justices found compelling interests in the importance of IP protection for software. That shared belief could prove crucial if the Court is to take up the Abstract Idea §101 issue for patent law and its application to software interfaces and diagnostics.

If you have any questions about how this may affect your IP interests, please reach out to an attorney here.

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