Software Copyright Protection After Google v. Oracle

• Published date: 30 August 2021
• Subject Matter: Intellectual Property, Litigation, Mediation & Arbitration, Copyright, Trials & Appeals & Compensation
• Law Firm: Lewis Roca
• Author: Eric N. Kohli and Meng Zhong

(August 25, 2021) - Attorneys Eric N. Kohli and Meng Zhong of Lewis Roca explain how a recent Supreme Court decision could influence future litigants in software copyright disputes.

The United States Supreme Court recently held that copying another's software was okay. Specifically, it held that Google's copying of Oracle's software was fair use.¹

The case concerns copyright protection of computer software. The Court described the software that was at issue, including its purpose, function, and use. But does the opinion provide a clear roadmap for copyright protection of software? Or for fair use of someone else's software?

The Supreme Court's opinion is narrow. It is limited to Oracle's specific software and Google's specific use of that software. Whether that precedent can be creatively argued to successfully allege copyright infringement, or to successfully assert a fair use defense, will vary by case and depend on the cogency of the arguments.

The only thing we know definitively is that Google's particular use of Oracle's specific API code was fair use, nothing more.

Copyright protection of software

The Computer Software Copyright Act ("CSC Act") of 1980 adds a definition of "computer program" to the 1976 Copyright Act.² Based on its legislative history, the CSC Act of 1980 "clearly [applies] the 1976 copyright law to computer programs."³ Consequently, computer programs are a "work of authorship" subject to copyright protection.⁴

Since then, the TRIPs agreement⁵ requires all adhering states to protect computer programs as literary works under the Berne Convention.⁶

Google v. Oracle

In Google v. Oracle, the Supreme Court narrowly focused on the specific facts of the parties' software-copyright dispute.⁷ Acknowledging the fast-changing pace of modern technology, the Court stated that "[it] should not answer more than is necessary to resolve the parties' dispute." For added measure, the Court held that the case does not change the "nature of traditional copyright concepts" for computer software.

This is a Supreme Court case, so it will quintessentially be quoted countless times at various levels of the nation's legal system. Did the Supreme Court intend to restrict the case's precedent, or was it "not answer[ing] more than is necessary to resolve the parties' dispute?" Only the Court knows. But the Court did provide other guidance.

Technical details

A) Terminology

Google copied and used software code from Oracle's Sun Java Application Programming Interface ("API"). The Court provided the following technical descriptions for the software:

(1) Sun's Java API: a user interface that provides a way through which programmers can manipulate and control task-performing computer programs via a series of menu commands.

(2) Tasks: an API allows programmers to call upon prewritten computing tasks for use in their own programs.

(3) Methods, classes, and packages: each individual task is known as a method. Groups of similar methods are known as classes. Groups of similar classes are known as packages.

(4) Method calls: commands corresponding to specific tasks that are used to call up a specific task, or method. Method calls locate and invoke a particular implementing code.

(5) Implementing code: software code that tells the computer how to...