The Impact of Google v. Oracle on Fair Use
In April 2021, the U.S. Supreme Court determined that Google’s copying of Oracle’s code was fair use, although the Court skipped over the question of whether the code itself was copyrightable. Essentially, the Supreme Court found the copying of 11,500 lines of code was found transformative because Google only used it to circumvent the need to license Java from Oracle with respect to Android smartphones and Java had been licensed only in desktop and laptop environments. The Court also, at least partially, relied on the belief that computer programs are different when it comes to copyright protection, and further from “the core of copyright” than other kinds of works.
Still, the Supreme Court’s ruling raises numerous significant questions, and given the infrequency with which issues of fair use are considered by the Court this decision is likely to be applied outside the scope of this software context.
This panel will discuss the decision and these questions that remain open after this monumental decision:
- Copyright merger question, particularly, at what point in time should the merger question be examined?
- How can a change in platform or context of use be transformative for purposes of fair use and copyright law and completely irrelevant and insignificant for purposes of patent law?
- What exactly qualifies as “transformative” and what does this ruling mean for the Second Circuit’s ruling in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith?
Approved for 1 hour of MCLE in Texas.
- Decision of the Supreme Court: Google LLC v. Oracle Inc.
- Brief of Motion Picture Association of America in Support of Respondent (co-authored by panelist Eleanor Lackman)
- Brief of Python Software Foundation in support of Petitioner (co-authored by panelist Van Lickman)
- All of the Briefs are available at SCOTUS Blog
- Articles on IPWatchdog.com