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SUPREME COURT OF THE UNITED STATES
GOOGLE LLC, PETITIONER v. ORACLE AMERICA, INC.
on writ of certiorari to the united states courtroom of appeals for the federal circuit
[April 5, 2021]
Justice Breyer delivered the opinion of the Court.
Oracle America, Inc., is the cutting-edge proprietor of a copyright in Java SE, a computer software that makes use of the famous Java pc programming language. Google, without permission, has copied a portion of that application, a portion that allows a programmer to call up prewritten software program that, together with the pc’s hardware, will carry out a large variety of specific tasks. The lower courts have taken into consideration (1) whether Java SE’s owner may want to copyright the portion that Google copied, and (2) if so, whether Google’s copying however constituted a “truthful use” of that fabric, thereby freeing Google from copyright legal responsibility. The Federal Circuit held in Oracle’s choose (i.e., that the component is copyrightable and Google’s copying did not represent a “truthful use”). In reviewing that decision, we assume, for argument’s sake, that the fabric changed into copyrightable. But we maintain that the copying right here at difficulty however constituted a honest use. Hence, Google’s copying did not violate the copyright regulation.
In 2005, Google obtained Android, Inc., a startup firm that was hoping to end up concerned in cellphone software. Google sought, thru Android, to develop a software platform for cellular gadgets like smartphones. 886 F.3d 1179, 1187 (CA Fed. 2018); App. 137–138, 242–243. A platform affords the vital infrastructure for laptop programmers to develop new programs and packages. One would possibly think of a software platform as a kind of manufacturing facility ground in which pc programmers (analogous to autoworkers, designers, or manufacturers) may come, use sets of equipment located there, and create new applications for use in, say, smartphones. (For visual causes of “platforms” and different fairly specialised computer-related terms, you might want to examine the fabric in Appendix A, infra.)
Google anticipated an Android platform that become loose and open, such that software program builders should use the gear found there freed from fee. Its idea became that increasingly more builders using its Android platform would broaden ever more Android-primarily based packages, all of which might make Google’s Android-based smartphones more attractive to closing consumers. Consumers could then buy and use ever extra of these phones. Oracle America, Inc. v. Google Inc., 872 F. Supp. second 974, 978 (ND Cal. 2012); App. 111, 464. That vision required attracting a large wide variety of professional programmers.
At that time, many software developers understood and wrote packages using the Java programming language, a language invented by means of Sun Microsystems (Oracle’s predecessor). 872 F. Supp. 2d, at 975, 977. About six million programmers had spent huge time studying, and then the use of, the Java language. App. 228. Many of these programmers used Sun’s very own popular Java SE platform to broaden new packages broadly speaking for use in computing device and computer computers. Id., at 151–152, 200. That platform allowed builders the use of the Java language to write down packages that have been capable of run on any desktop or pc computer, regardless of the underlying hardware (i.e., the packages were in large element “interoperable”). 872 F. Supp. second, at 977. Indeed, certainly one of Sun’s slogans become “ ‘write as soon as, run everywhere.’ ” 886 F. 3d, at 1186.
Shortly after obtaining the Android corporation, Google began talks with Sun approximately the possibility of licensing the entire Java platform for its new smartphone generation. Oracle, 872 F. Supp. 2d, at 978. But Google did not want to insist that all programs written on the Android platform be interoperable. 886 F. 3d, at 1187. As Android’s founder explained, “[t]he complete idea about [an] open source [platform] is to have very, very few restrictions on what human beings can do with it,” App. 659, and Sun’s interoperability coverage would have undermined that loose and open commercial enterprise model. Apparently, for reasons related to this disagreement, Google’s negotiations with Sun broke down. Google then constructed its very own platform.
The record suggests that more or less a hundred Google engineers labored for greater than 3 years to create Google’s Android platform software. Id., at forty five, 117, 212. In doing so, Google tailored the Android platform to smartphone generation, which differs from computer and laptop computer systems in essential ways. A cellphone, as an example, may additionally run on a extra confined battery or take gain of GPS generation. Id., at 197–198. The Android platform supplied programmers the potential to application for that surroundings. To construct the platform, Google wrote tens of millions of strains of recent code. Because Google desired millions of programmers, acquainted with Java, to be able effortlessly to paintings with its new Android platform, it additionally copied kind of eleven,500 traces of code from the Java SE software. 886 F. 3d, at 1187. The copied strains of code are a part of a tool called an Application Programming Interface, or API.
What is an API? The Federal Circuit described an API as a tool that “allow[s] programmers to use . . . prewritten code to build positive capabilities into their very own packages, instead of write their very own code to perform the ones features from scratch.” Oracle America, Inc. v. Google, Inc., 750 F.3d 1339, 1349 (2014). Through an API, a programmer can draw upon a significant library of prewritten code to perform complicated obligations. For lay folks, which includes judges, juries, and many others, a few elaboration of this description may show beneficial.
Consider in greater element just what an API does. A computer can perform heaps, perhaps millions, of different responsibilities that a programmer can also want to use. These responsibilities variety from the most primary to the highly complicated. Ask the computer, for example, to tell you which of them of two numbers is the higher number or to sort 1000 numbers in ascending order, and it'll instantly give you the right solution. An API divides and organizes the sector of computing tasks in a particular way. Programmers can then use the API to select the specific venture that they want for their applications. In Sun’s API (which we seek advice from because the Sun Java API), each character mission is known as a “method.” The API businesses extremely comparable techniques into large “lessons,” and groups truly comparable classes into large “packages.” This approach-magnificence-package organizational structure is called the Sun Java API’s “shape, series, and corporation,” or SSO.
For every project, there is laptop code, known as “imposing code,” that in effect tells the computer how to execute the specific challenge you have requested it to perform (which include telling you, of two numbers, which is the better). See Oracle, 872 F. Supp. 2d, at 979–980. The imposing code (which Google independently wrote) isn't always at difficulty right here. For a unmarried undertaking, the enforcing code can be loads of lines long. It would be difficult, possibly impossible, for a programmer to create complex software program applications with out drawing on prewritten project-implementing packages to execute discrete duties.
But how do you as the programmer inform the pc which of the enforcing code applications it must pick, i.e., which challenge it need to perform? You do so by means of moving into your personal software a command that corresponds to the precise undertaking and calls it up. Those commands, referred to as “technique calls,” help you perform the challenge by means of choosing the ones applications written in enforcing code so as to do the trick, i.e., as a way to train the computer in order that your application will locate the higher of two numbers. If a particular pc might perform, say, 1,000,000 different duties, one-of-a-kind method calls will tell the computer which of these obligations to pick. Those familiar with the Java language already recognise endless approach calls that permit them to invoke endless obligations.
And how does the method call (which a programmer kinds) without a doubt discover and invoke the precise enforcing code that it wishes to educate the pc a way to carry out a particular undertaking? It does so via another type of code, which the parties have labeled “declaring code.” Declaring code is a part of the API. For every challenge, the precise command entered by way of the programmer matches up with particular declaring code in the API. That asserting code offers both the call for each mission and the area of every mission within the API’s ordinary organizational system (i.e., the location of a technique inside a specific magnificence and the location of a category within a selected package). In this sense, the putting forward code and the approach call form a link, allowing the programmer to draw upon the lots of prewritten tasks, written in implementing code. See identification., at 979–980. Without that maintaining code, the method calls entered with the aid of the programmer might now not call up the implementing code.
The maintaining code consequently plays at the least two vital capabilities within the Sun Java API. The first, more apparent, characteristic is that the declaring code permits a set of shortcuts for programmers. By connecting complex imposing code with technique calls, it allows a programmer to select out from the API’s undertaking library a selected assignment while not having to research anything greater than a simple command. For instance, a programmer constructing a brand new software for personal banking may additionally wish to use diverse responsibilities to, say, calculate a consumer’s stability or authenticate a password. To achieve this, she need simplest analyze the technique calls related to the ones responsibilities. In this way, the maintaining code’s shortcut feature is similar to a gasoline pedal in a vehicle that tells the auto to move faster or the QWERTY keyboard on a typewriter that calls up a sure letter while you press a specific key. As those analogies reveal, possible think of the declaring code as a part of an interface among human beings and a gadget.
The 2nd, less apparent, function is to reflect the manner in which Java’s creators have divided the potential global of different obligations into an real international, i.e., precisely which set of doubtlessly tens of millions of different duties we need to have our Java-based totally pc structures perform and how we need those responsibilities organized and grouped. In this experience, the putting forward code performs an organizational characteristic. It determines the structure of the mission library that Java’s creators have decided to build. To recognize this organizational machine, think of the Dewey Decimal System that categorizes books into an available gadget or a tour guide that arranges a city’s sights into unique classes. Language itself gives a hard analogy to the asserting code’s organizational feature, for language itself divides into units of concepts a world that during positive respects other languages may have divided differently. The developers of Java, for instance, determined to place a method called “draw photograph” inner of a category called “portraits.”
Consider a complete, albeit farfetched, analogy that illustrates how the API is truly utilized by a programmer. Imagine that you can, through positive keystrokes, coach a robot to move to a particular report cupboard, to open a sure drawer, and to select out a selected recipe. With the right recipe in hand, the robot then moves in your kitchen and offers it to a cook to prepare the dish. This example mirrors the API’s assignment-related organizational device. Through your simple command, the robotic locates the proper recipe and hands it off to the cook dinner. In the identical way, typing in a method call prompts the API to locate the correct enforcing code and hand it off for your pc. And importantly, to pick the dish that you need in your meal, you do no longer want to recognize the recipe’s contents, just as a programmer the use of an API does not want to analyze the implementing code. In each conditions, learning the easy command is enough.
Now allow us to recall the example that the District Court used to give an explanation for an appropriate generation here. Id., at 980–981. A programmer needs, as a part of her software, to decide which of two integers is the larger. To achieve this in the Java language, she will first write java.lang. Those phrases (which we've installed formidable kind) talk over with the “package deal” (or with the aid of analogy to the file cabinet). She will then write Math. That word refers to the “elegance” (or through analogy to the drawer). She will then write max. That phrase refers back to the “approach” (or by using analogy to the recipe). She will then make parentheses ( ). And, in among the parentheses she will put two integers, say four and six, that she needs to evaluate. The whole expression—the method name—will appear like this: “java.lang.Math.max(four, 6).” The use of this expression will, via the API, call up a task-enforcing application a good way to decide the higher number.
In writing this software, the programmer will use the very symbols we've located in bold in the best order we have positioned them. But the symbols with the aid of themselves do nothing. She ought to additionally use software that connects the symbols to the equal of record shelves, drawers, and files. The API is that software. It includes both the maintaining code that links each a part of the approach call to the precise mission-imposing program, and the enforcing code that really includes it out. (For an instance of this technology, see Appendix B, infra.)
Now we can go back to the copying at difficulty in this situation. Google did no longer reproduction the assignment-implementing packages, or imposing code, from the Sun Java API. It wrote its own undertaking-imposing packages, which includes the ones that might determine which of integers is the more or perform another preferred (normally some distance more complex) undertaking. This imposing code constitutes the significant majority of both the Sun Java API and the API that Google created for Android. App. 212. For maximum of the packages in its new API, Google additionally wrote its personal putting forward code. For 37 packages, but, Google copied the maintaining code from the Sun Java API. Id., at 106–107. As simply explained, which means that, for the ones 37 applications, Google necessarily copied each the names given to particular obligations and the grouping of these obligations into training and packages.
In doing so, Google copied that part of the Sun Java API that allowed programmers professional inside the Java programming language to apply the “task calling” system that they'd already learned. As Google noticed it, the 37 packages at problem covered the ones tasks that were in all likelihood to prove maximum useful to programmers running on packages for cell devices. In truth, “three of those applications have been . . . essential to being able to use the Java language at all.” Oracle, 872 F. Supp. 2nd, at 982. By the usage of the same maintaining code for the ones programs, programmers using the Android platform can depend on the technique calls that they may be already familiar with to call up unique responsibilities (e.g., figuring out which of integers is the more); but Google’s very own imposing programs perform the ones obligations. Without that copying, programmers might want to study an entirely new system to name up the same obligations.
We upload that the Android platform has been successful. Within five years of its launch in 2007, Android-based gadgets claimed a massive proportion of the USA marketplace. Id., at 978. As of 2015, Android income produced more than $42 billion in sales. 886 F. 3d, at 1187.
In 2010 Oracle Corporation sold Sun. Soon thereafter Oracle added this lawsuit in the United States District Court for the Northern District of California.
The case has a complicated and lengthy history. At the outset Oracle complained that Google’s use of the Sun Java API violated each copyright and patent legal guidelines. For its copyright claim, Oracle alleged that Google infringed its copyright through copying, for 37 packages, both the literal affirming code and the nonliteral organizational shape (or SSO) of the API, i.e., the grouping of positive techniques into lessons and positive classes into applications. For trial purposes the District Court organized three lawsuits. The first might cover the copyright problems, the second one might cowl the patent problems, and the 1/3 might, if important, calculate damages. Oracle, 872 F. Supp. second, at 975. The court additionally determined that a judge should decide whether or not copyright regulation could guard an API and that the jury ought to decide whether or not Google’s use of Oracle’s API infringed its copyright and, in that case, whether a truthful use defense although carried out. Ibid.
After six weeks of hearing proof, the jury rejected Oracle’s patent claims (that have due to the fact dropped out of the case). It also discovered a constrained copyright infringement. It deadlocked as to whether Google could efficaciously assert a fair use protection. Id., at 976. The judge then determined that, regardless, the API’s declaring code changed into now not the kind of advent to which copyright law prolonged its protection. The court docket stated that Google had written its own imposing code, which constituted the giant majority of its API. It wrote that “everybody is loose below the Copyright Act to write down his or her own code to perform exactly the same” responsibilities that the Sun Java API alternatives out or specifies. Ibid. Google copied simplest the asserting code and organizational shape that became vital for Java-trained programmers to spark off acquainted responsibilities (whilst, as we said, writing its own enforcing code). Hence the copied material, inside the decide’s view, changed into a “device or approach of operation,” which copyright regulation particularly states can not be copyrighted. Id., at 977 (citing
17 U. S. C. §102(b)).
On enchantment, the Federal Circuit reversed. That court docket held that both the API’s maintaining code and its organizational structure will be copyrighted. Oracle, 750 F. 3d, at 1354. It talked about that Google may want to have written its own declaring code simply because it wrote its personal imposing code. And because in precept Google may have created a whole new device of dividing and labeling tasks that could be called up by means of programmers, the affirming code (and the machine) that made up the Sun Java API changed into copyrightable. Id., at 1361.
The Federal Circuit also rejected Oracle’s plea that it decide whether Google had the right to use the Sun Java API due to the fact doing so became a “fair use,” immune from copyright legal responsibility. The Circuit wrote that fair use “each permits and calls for ‘courts to avoid inflexible utility of the copyright statute while, on occasion, it'd stifle the very creativity which that law is designed to foster.’ ” Id., at 1372–1373. But, it added, this “isn't always a case in which the file consists of enough genuine findings upon which we should base a de novo evaluation of Google’s affirmative protection of honest use.” Id., at 1377. And it remanded the case for some other trial on that query. Google petitioned this Court for a writ of certiorari, in search of evaluate of the Federal Circuit’s copyrightability dedication. We denied the petition. Google, Inc. v. Oracle America, Inc.,
576 U.S. 1071 (2015).
On remand the District Court, sitting with a jury, heard evidence for a week. The court docket instructed the jury to answer one query: Has Google “shown by using a preponderance of the proof that its use in Android” of the maintaining code and organizational shape contained within the 37 Sun Java API packages that it copied “constitutes a ‘fair use’ beneath the Copyright Act?” App. 294. After 3 days of deliberation the jury responded the question in the affirmative. Id., at 295. Google had shown fair use.
Oracle again appealed to the Federal Circuit. And the Circuit once more reversed the District Court. The Federal Circuit assumed all factual questions in Google’s favor. But, it stated, the query whether or not those statistics constitute a “fair use” is a query of law. 886 F. 3d, at 1193. Deciding that question of law, the court held that Google’s use of the Sun Java API became no longer a honest use. It wrote that “[t]here is nothing truthful about taking a copyrighted work verbatim and the use of it for the identical motive and characteristic because the unique in a competing platform.” Id., at 1210. It remanded the case once more, this time for a tribulation on damages.
Google then filed a petition for certiorari on this Court. It requested us to review the Federal Circuit’s determinations as to both copyrightability and fair use. We granted its petition.
Copyright and patents, the Constitution says, are to “promote the Progress of Science and beneficial Arts, by way of securing for constrained Times to Authors and Inventors the distinctive Right to their respective Writings and Discoveries.” Art. I, §eight, cl. 8. Copyright statutes and case law have made clear that copyright has realistic objectives. It presents an writer an one-of-a-kind proper to provide his paintings (on occasion for 100 years or greater), not as a unique reward, but as a way to encourage the production of works that others might reproduce extra affordably. At the same time, copyright has terrible functions. Protection can raise costs to consumers. It can impose special expenses, which includes the cost of contacting owners to achieve duplicate permission. And the
exceptional rights it awards can occasionally stand in the manner of others exercise their own creative powers. See usually Twentieth Century Music Corp. v. Aiken,
422 U.S. 151, 156 (1975); Mazer v. Stein,
347 U.S. 201, 219 (1954).
Macaulay once stated that the principle of copyright is a “tax on readers for the cause of giving a bounty to writers.” T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913). Congress, weighing blessings and drawbacks, will determine the extra specific nature of the tax, its limitations and situations, the life of exceptions and exemptions, all by way of workout its very own constitutional power to write a copyright statute.
Four provisions of the modern Copyright Act are of unique relevance in this situation. First, a definitional provision units forth three fundamental situations for acquiring a copyright. There ought to be a “wor[k] of authorship,” that work should be “authentic,” and the work need to be “constant in any tangible medium of expression.”
17 U. S. C. §102(a); see also Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340, 345 (1991) (explaining that copyright calls for a few authentic “innovative spark” and consequently does no longer attain the facts that a specific expression describes).
Second, the statute lists certain kinds of works that copyright can shield. They consist of “literary,” “musical,” “dramatic,” “motion pictur[e ],” “architectural,” and certain different works. §102(a). In 1980, Congress expanded the reach of the Copyright Act to encompass laptop programs. And it described “computer program” as “ ‘a fixed of statements or instructions to be used directly or indirectly in a laptop a good way to result in a certain end result.’ ” §10,
3028 (codified at
17 U. S. C. §one zero one).
Third, the statute sets forth obstacles on the works that may be copyrighted, consisting of works that the definitional provisions would possibly in any other case encompass. It says, as an example, that copyright protection can not be extended to “any concept, method, method, device, technique of operation, idea, precept, or discovery . . . .” §102(b). These barriers, along side the want to “fix” a work in a “tangible medium of expression,” have regularly led courts to mention, in shorthand shape, that, in contrast to patents, which protect novel and beneficial ideas, copyrights defend “expression” however not the “thoughts” that lie behind it. See Sheldon v. Metro-Goldwyn Pictures Corp., eighty one F.2nd forty nine, 54 (CA2 1936) (Hand, J.); B. Kaplan, An Unhurried View of Copyright 46–52 (1967).
Fourth, Congress, collectively with the courts, has imposed barriers upon the scope of copyright protection even in recognize to works which might be entitled to a copyright. For example, the Copyright Act limits an creator’s exceptional rights in performances and presentations, §a hundred and ten, or to performances of sound recordings, §114. And without delay relevant right here, a copyright holder can not save you another person from creating a “fair use” of copyrighted cloth. §107.
We have defined the “fair use” doctrine, originating within the courts, as an “equitable rule of purpose” that “permits courts to avoid rigid application of the copyright statute while, every so often, it'd stifle the very creativity which that law is designed to foster.” Stewart v. Abend,
495 U.S. 207, 236 (1990) (internal quotation marks overlooked). The statutory provision that embodies the doctrine suggests, as opposed to dictates, how courts ought to practice it. The provision says:
“[T]he fair use of a copyrighted paintings, . . . for purposes consisting of grievance, remark, news reporting, teaching . . . scholarship, or studies, is not an infringement of copyright. In figuring out whether the use manufactured from a work in any unique case is a fair use the elements to be considered shall include—
“(1) the purpose and individual of the use, which includes whether such use is of a industrial nature or is for nonprofit academic functions;
“(2) the character of the copyrighted work;
“(three) the quantity and substantiality of the component used when it comes to the copyrighted work as a whole; and
“(4) the impact of the use upon the potential marketplace for or fee of the copyrighted paintings.” §107.
In making use of this provision, we, like different courts, have understood that the availability’s listing of things isn't always exhaustive (note the phrases “encompass” and “inclusive of”), that the examples it units forth do now not exclude other examples (observe the phrases “such as”), and that a few factors may show extra crucial in a few contexts than in others. See Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 577 (1994); Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 560 (1985); see additionally Leval, Toward a Fair Use Standard, 103 Harv. L. Rev 1105, 1110 (1990) (Leval) (“The elements do now not constitute a rating card that guarantees victory to the winner of the bulk”). In a phrase, we've got understood the provision to set forth general principles, the application of which requires judicial balancing, depending upon relevant occasions, consisting of “tremendous adjustments in generation.” Sony Corp. of America v. Universal City Studios, Inc.,
464 U.S. 417, 430 (1984); see additionally Aiken, 422 U. S., at 156 (“When technological exchange has rendered its literal terms ambiguous, the Copyright Act need to be construed in mild of its basic cause”).
Google’s petition for certiorari poses questions. The first asks whether or not Java’s API is copyrightable. It asks us to study two of the statutory provisions just noted, one that lets in copyrighting pc applications and the alternative that forbids copyrighting, e.g., “procedure[es],” “system[s],” and “technique[s] of operation.” Pet. for Cert. 12. Google believes that the API’s declaring code and agency fall into those latter categories and are expressly excluded from copyright safety. The second query asks us to decide whether or not Google’s use of the API turned into a “honest use.” Google believes that it was.
A maintaining for Google on both query offered could dispense with Oracle’s copyright claims. Given the unexpectedly converting technological, financial, and enterprise-related occasions, we believe we should not answer more than is necessary to solve the events’ dispute. We shall count on, but simply for argument’s sake, that the complete Sun Java API falls inside the definition of that which can be copyrighted. We shall ask instead whether Google’s use of part of that API turned into a “fair use.” Unlike the Federal Circuit, we conclude that it changed into.
The language of §107, the “honest use” provision, displays its choose-made origins. It is much like that utilized by Justice Story in Folsom v. Marsh, nine F. Cas. 342, 348 (No. 4,901) (CC Mass. 1841). See Campbell, 510 U. S., at 576 (noting how “Justice Story’s precis [of fair use considerations] is discernable” in §107). That historical past, as well as contemporary courts’ use of the doctrine, makes clean that the idea is flexible, that courts should follow it in light of the every now and then conflicting pursuits of copyright law, and that its application might also nicely range depending upon context. Thus, copyright’s protection can be more potent wherein the copyrighted cloth is fiction, not fact, wherein it consists of a motion image in place of a news broadcast, or in which it serves a creative as opposed to a utilitarian characteristic. See, e.g., Stewart, 495 U. S., at 237–238; Harper & Row, 471 U. S., at 563; see also 4 M. Nimmer & D. Nimmer, Copyright §thirteen.05[A] [a] (2019) (hereinafter Nimmer on Copyright) (“[C]opyright protection is narrower, and the corresponding application of the truthful use defense extra, within the case of genuine works than inside the case of works of fiction or myth”). Similarly, courts have held that in some situations, say, where copyrightable fabric is sure up with uncopyrightable cloth, copyright safety is “thin.” See Feist, 499 U. S., at 349 (noting that “the copyright in a genuine compilation is skinny”); see additionally Experian Information Solutions, Inc. v. Nationwide Marketing Servs. Inc., 893 F.3d 1176, 1186 (CA9 2018) (“In the context of real compilations, . . . there can be no infringement until the works are honestly equal” (internal quotation marks ignored)).
Generically talking, computer packages fluctuate from books, films, and plenty of other “literary works” in that such packages nearly continually serve functional functions. These and different variations have led as a minimum a few judges to bitch that “applying copyright regulation to pc packages is like assembling a jigsaw puzzle whose portions do no longer pretty suit.” Lotus Development Corp. v. Borland Int’l, Inc., forty nine F.3d 807, 820 (CA1 1995) (Boudin, J., concurring).
These variations additionally led Congress to assume long and tough approximately whether or not to grant laptop packages copyright safety. In 1974, Congress hooked up a National Commission on New Technological Uses of Copyrighted Works (CONTU) to look into the matter. §§201–208,
1873–1875. After several years of studies, CONTU concluded that the “availability of copyright safety for pc packages is applicable.” Final Report 11 (July 31, 1978). At the equal time, it diagnosed that laptop applications had unique capabilities. Mindful of no longer “unduly burdening customers of programs and the overall public,” it wrote that copyright “have to now not provide each person more financial power than is vital to achieve the inducement to create.” Id., at 12. And it believed that copyright’s existing doctrines (e.g., fair use), carried out by using courts on a case-by using-case foundation, may want to prevent holders from using copyright to stifle innovation. Ibid. (“Relatively few changes inside the Copyright Act of 1976 are required to reap those goals”). Congress then wrote laptop program safety into the law. See §10,
The upshot, in our view, is that fair use can play an essential role in determining the lawful scope of a computer program copyright, such as the copyright at difficulty here. It can help to distinguish amongst technology. It can distinguish between expressive and practical features of laptop code where those features are mixed. It can awareness on the legitimate need to offer incentives to provide copyrighted cloth whilst analyzing the volume to which yet in addition safety creates unrelated or illegitimate harms in different markets or to the improvement of other products. In a phrase, it can perform its primary reason of presenting a context-primarily based take a look at which could help to maintain a copyright monopoly within its lawful bounds. See H. R. Rep. No. 94–1476, pp. 65–sixty six (1976) (explaining that courts are to “adapt the doctrine [of fair use] to unique conditions on a case-via-case basis” and in light of “speedy technological change”); see, e.g., Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 543–545 (CA6 2004) (discussing fair use inside the context of copying to maintain compatibility); Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 603–608 (CA9 2000) (making use of honest use to intermediate copying important to reverse engineer access to unprotected useful elements inside a application); Sega Enterprises Ltd. v. Accolade, Inc., 977 F.second 1510, 1521–1527 (CA9 1992) (keeping that wholesale copying of copyrighted code as a initial step to increase a competing product become a truthful use).
Justice Thomas’ thoughtful dissent gives a very distinctive view of how (and possibly whether or not) honest use has any function to play for pc programs. We are informed that no try to distinguish amongst pc code is tenable while thinking about “the character of the paintings,” see publish, at 10, despite the fact that there are critical differences inside the approaches that programs are used and designed, post, at 18 (“The maintaining code is what attracted programmers”). We are told that no reuse of code in a brand new application will ever have a legitimate “purpose and man or woman,” put up, at sixteen, even though the motives for copying pc code may additionally range greatly and range from those applicable to different varieties of works, ibid. (accepting that copying as part of “opposite engineer[ing] a system to make sure compatibility” can be a valid reason). And we are advised that our truthful use evaluation should prioritize certain elements over others, publish, at 9, n. 5, even though our case law instructs that fair use depends at the context, see Campbell, 510 U. S., at 577–578.
We do now not apprehend Congress, but, to have shielded pc programs from the everyday application of copyright’s limiting doctrines in this manner. By defining pc programs in §101, Congress chose to location this challenge count number in the copyright regime. Like different included works, that means that the owners of pc applications experience the extraordinary rights set forth in the Act, consisting of the proper to “reproduce [a] copyrighted paintings” or to “put together spinoff works.”
17 U. S. C. §106. But that also manner that distinct rights in computer packages are restricted like every other works. Just as fair use distinguishes among books and films, which can be certainly subjects of copyright, so too ought to it draw lines among pc packages. And simply as fair use takes account of the market in which scripts and artwork are bought and offered, so too should it bear in mind the realities of the way technological works are created and disseminated. We do not trust that an technique close to “all or nothing” could be trustworthy to the Copyright Act’s usual layout.
At the outset, Google argues that “honest use” is a query for a jury to decide; right here the jury determined the query in Google’s choose; and we need to restrict our evaluate to determining whether or not “giant evidence” justified the jury’s decision. The Federal Circuit disagreed. It idea that the “truthful use” question become a combined question of reality and regulation; that reviewing courts ought to correctly defer to the jury’s findings of underlying records; however that the final question whether or not those records confirmed a “honest use” is a felony question for judges to determine de novo.
We accept as true with the Federal Circuit’s answer to this query. We have said, “[f]air use is a combined query of regulation and reality.” Harper & Row, 471 U. S., at 560. We have explained that a reviewing court have to strive to break one of these query into its separate actual and prison parts, reviewing each in line with the suitable felony preferred. But when a query may be decreased no in addition, we have delivered that “the usual of review for a blended query all depends—on whether answering it entails normally felony or factual work.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___(2018) (slip op., at nine).
In this situation, the remaining “truthful use” query by and large includes prison paintings. “Fair use” changed into at first a concept original with the aid of judges. Folsom, nine F. Cas., at 348. Our instances nevertheless offer criminal interpretations of the honest use provision. And the ones interpretations provide widespread steering for destiny instances. See, e.g., Campbell, 510 U. S., at 592–593 (describing types of marketplace harms that aren't the priority of copyright); Harper & Row, 471 U. S., at 564 (“scope of truthful use is narrower with admire to unpublished works”); Sony, 464 U. S., at 451 (wholesale copying aimed toward creating a marketplace alternative is presumptively unfair). This type of paintings is criminal work. U. S. Bank, 583 U. S., at ___ (slip op., at eight) (“When making use of the law includes developing auxiliary felony principles to be used in different cases[,] appellate courts have to typically evaluate a decision de novo”).
Applying a felony “honest use” end can also, of direction, contain willpower of subsidiary factual questions, consisting of “whether or not there was damage to the real or potential markets for the copyrighted work” or “how tons of the copyrighted work changed into copied.” 886 F. 3d, at 1196; see, e.g., Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 63 (CA2 2010) (noting that in an infringement healthy “the query of considerable similarity normally gives an extremely near question of truth”). In this example the Federal Circuit carefully implemented the truth/law concepts we set forth in U. S. Bank, leaving real determinations to the jury and reviewing the remaining query, a prison query, de novo.
Next, Google argues that the Federal Circuit’s technique violates the
Seventh Amendment. The Amendment both requires that “the proper of trial through jury . . . be preserved” and forbids courts to “re-examin[e ]” any “reality attempted with the aid of a jury.” U. S. Const., Amdt. 7; see additionally Gasperini v. Center for Humanities, Inc.,
518 U.S. 415, 432–433 (1996). The Reexamination Clause isn't any bar here, however, for, as we've got said, the ultimate question right here is certainly one of regulation, now not truth. It does no longer violate the Reexamination Clause for a court to decide the controlling law in resolving a venture to a jury verdict, as occurs any time a court resolves a motion for judgment as a be counted of law. See, e.g., Neely v. Martin K. Eby Constr. Co.,
386 U.S. 317, 322 (1967).
Nor is Google accurate that “the proper of trial via jury” includes the right to have a jury remedy a truthful use protection. That Clause is involved with “the particular trial selection” at difficulty. Markman v. Westview Instruments, Inc.,
517 U.S. 370, 376 (1996). Even although it's miles possible to locate pre-Revolutionary English instances wherein a decide despatched related questions like honest abridgment to a jury, the ones questions had been considerably exclusive from the “honest use” doctrine as courts observe it today. See, e.g., Gyles v. Wilcox, 2 Atk. 141, 142–144, 26 Eng. Rep. 489, 490–491 (Ch. 1740) (asking the Court to remedy the narrow query whether or not a shortened paintings can be taken into consideration a brand new work); Sayre v. Moore, 1 East 361, n., 102 Eng. Rep. 138, 139, n. (K. B. 1785) (discussing the jury’s role in resolving whether copying constituted infringement). As some distance as cutting-edge truthful use is worried, we have described the doctrine as an “equitable,” now not a “prison,” doctrine. We have observed no case suggesting that application of U. S. Bank here would fail “to keep the substance of the not unusual-law [jury trial] proper because it existed in 1791.” Markman, 517 U. S., at 376.
We flip now to the primary prison query before us: Was Google’s copying of the Sun Java API, especially its use of the affirming code and organizational shape for 37 packages of that API, a “honest use.” In answering this question, we will remember the four elements set forth in the honest use statute as we find them applicable to the sort of pc programs before us. We have reproduced those 4 statutory elements supra, at 13–14. For expository functions, we begin with the second.
A. “The Nature of the Copyrighted Work”
The Sun Java API is a “person interface.” It gives a way through which users (here the programmers) can “manipulate and manage” venture-acting laptop programs “through a chain of menu commands.” Lotus Development Corp., forty nine F. 3d, at 809. The API reflects Sun’s division of feasible obligations that a computer may perform into a fixed of actual responsibilities that certain forms of computer systems sincerely will perform. Sun decided, as an example, that its API might name up a mission that compares one integer with every other to see that is the larger. Sun’s API (to our expertise) will now not name up the mission of determining which wonderful Arabic student decided to use Arabic numerals (in place of Roman numerals) to perform that “large integer” task. No one claims that the choices about what counts as a venture are themselves copyrightable—despite the fact that one may argue about selections as to the way to label and arrange such tasks (e.g., the choice to name a sure venture “max” or to vicinity it in a class called “Math.” Cf. Baker v. Selden,
one hundred and one U.S. 99 (1880)).
As mentioned above, supra, at three–5, and in Appendix B, infra, we can think about the generation as having three important elements. First, the API consists of “imposing code,” which actually instructs the computer on the steps to observe to perform each project. Google wrote its personal programs (imposing programs) that could perform every one of the duties that its API calls up.
Second, the Sun Java API associates a particular command, referred to as a “approach name,” with the calling up of every task. The symbols java.lang., as an example, are part of the command to be able to name up this system (whether or not written by way of Sun or, as right here, by using Google) that instructs the computer to perform the “large variety” operation. Oracle does no longer right here argue that the usage of these commands with the aid of programmers itself violates its copyrights.
Third, the Sun Java API contains laptop code with a view to partner the writing of a technique call with particular “places” within the pc that incorporate the wished implementing code. This is the maintaining code. The putting forward code each labels the particular obligations within the API and organizes those tasks, or “strategies,” into “applications” and “instructions.” We have noted this organisation, with the aid of way of hard analogy, as record shelves, drawers, and files. Oracle does claim that Google’s use of the Sun Java API’s declaring code violates its copyrights.
The asserting code at issue right here resembles different copyrighted works in that it's miles part of a pc program. Congress has exact that pc programs are subjects of copyright. It differs, however, from many other styles of copyrightable computer code. It is inextricably sure collectively with a fashionable machine, the department of computing obligations, that no one claims is a proper challenge of copyright. It is inextricably bound up with the concept of organizing duties into what we've got called shelves, drawers, and files, an concept that is additionally no longer copyrightable. It is inextricably bound up with the usage of specific instructions known to programmers, known here as technique calls (inclusive of java.lang.Math.max, etc.), that Oracle does no longer here contest. And it's far inextricably bound up with enforcing code, that's copyrightable however become not copied.
Moreover, the copied putting forward code and the uncopied imposing packages name for, and mirror, unique varieties of abilities. A single implementation may also stroll a pc through dozens of various steps. To write enforcing packages, witnesses instructed the jury, requires balancing such considerations as how fast a pc can execute a mission or the probably length of the computer’s memory. One witness defined that creativity as “magic” practiced by way of an API developer when she or he worries “approximately things like strength control” for gadgets that “run on a battery.” App. 143; see also identity., at 147, 204. This is the very creativity that turned into needed to increase the Android software for use now not in laptops or desktops however in the very unique context of smartphones.
The putting forward code (inseparable from the programmer’s method calls) embodies a unique form of creativity. Sun Java’s creators, as an example, attempted to discover putting forward code names that might show intuitively clean to recollect. Id., at 211. They desired to draw programmers who might study the device, help to develop it similarly, and show reluctant to apply any other. See put up, at 10 (“Declaring code . . . is user facing. It must be designed and prepared in a manner that is intuitive and understandable to developers so we can invoke it”). Sun’s enterprise approach initially emphasised the importance of using the API to attract programmers. It sought to make the API “open” and “then . . . compete on implementations.” App. 124–a hundred twenty five. The testimony at trial became replete with examples of witnesses drawing this important line among the consumer-focused declaratory code and the progressive enforcing code. Id., at 126–127, 159–a hundred and sixty, 163–164, 187, a hundred ninety–191.
These functions imply that, as part of a consumer interface, the asserting code differs to some diploma from the mine run of computer packages. Like other pc programs, it's far practical in nature. But not like many different packages, its use is inherently certain together with uncopyrightable thoughts (preferred assignment division and business enterprise) and new creative expression (Android’s implementing code). Unlike many different packages, its value in full-size element derives from the value that folks that do not preserve copyrights, namely, pc programmers, make investments of their own effort and time to analyze the API’s device. And not like many different applications, its fee lies in its efforts to inspire programmers to research and to apply that machine in order that they may use (and hold to apply) Sun-associated enforcing packages that Google did no longer replica.
Although copyrights protect many unique types of writing, Leval 1116, we've got emphasized the need to “recogni[ze] that a few works are closer to the center of [copyright] than others,” Campbell, 510 U. S., at 586. In our view, for the reasons simply defined, the putting forward code is, if copyrightable in any respect, similarly than are maximum pc programs (which includes the implementing code) from the center of copyright. That fact diminishes the fear, expressed by means of each the dissent and the Federal Circuit, that utility of “honest use” here might significantly undermine the overall copyright protection that Congress furnished for computer packages. And it method that this thing, “the nature of the copyrighted paintings,” factors in the route of truthful use.
B. “The Purpose and Character of the Use”
In the context of honest use, we've considered whether the copier’s use “adds some thing new, with a further purpose or exclusive individual, changing” the copyrighted paintings “with new expression, meaning or message.” Id., at 579. Commentators have put the problem more extensively, asking whether or not the copier’s use “fulfill[s] the goal of copyright regulation to stimulate creativity for public illumination.” Leval 1111. In answering this question, we've got used the word “transformative” to explain a copying use that adds something new and essential. Campbell, 510 U. S., at 579. An “ ‘artistic painting’ ” might, as an instance, fall inside the scope of honest use although it exactly replicates a copyrighted “ ‘marketing logo to make a comment approximately consumerism.’ ” 4 Nimmer on Copyright §13.05[A][b] (quoting Netanel, Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715, 746 (2011)). Or, as we held in Campbell, a parody may be transformative as it feedback at the original or criticizes it, for “[p]arody wishes to imitate an original to make its factor.” 510 U. S., at 580–581.
Google copied quantities of the Sun Java API precisely, and it did so in element for the identical purpose that Sun created the ones portions, particularly, to enable programmers to name up implementing applications that would accomplish specific duties. But when you consider that truly any unauthorized use of a copyrighted pc application (say, for teaching or research) would do the same, to prevent here might critically restriction the scope of honest use inside the practical context of computer applications. Rather, in determining whether or not a use is “transformative,” we must cross in addition and examine the copying’s more mainly defined “reason[s]” and “man or woman.”
17 U. S. C. §107(1).
Here Google’s use of the Sun Java API seeks to create new merchandise. It seeks to expand the use and usability of Android-based smartphones. Its new product offers programmers a quite creative and revolutionary tool for a phone surroundings. To the extent that Google used components of the Sun Java API to create a new platform that would be without problems used by programmers, its use become constant with that creative “development” that is the basic constitutional goal of copyright itself. Cf. Feist, 499 U. S., at 349–350 (“The number one objective of copyright isn't always to reward the exertions of authors, however ‘[t]o sell the Progress of Science and useful Arts’ ” (quoting U. S. Const., Art. I, §8, cl. 8)).
The jury heard that Google restricted its use of the Sun Java API to duties and specific programming needs associated with Android. It copied the API (which Sun created for use in computer and computer computers) only insofar as had to encompass responsibilities that might be beneficial in phone applications. App. 169–one hundred seventy. And it did so handiest insofar as had to allow programmers to call upon the ones duties without discarding a part of a familiar programming language and studying a new one. Id., at 139–one hundred forty. To repeat, Google, thru Android, supplied a new series of responsibilities working in a distinct and distinct computing environment. Those responsibilities were accomplished through the use of latest imposing code (that Google wrote) designed to perform inside that new surroundings. Some of the amici seek advice from what Google did as “reimplementation,” defined as the “building of a gadget . . . that repurposes the same words and syntaxes” of an existing system—in this situation so that programmers who had found out an present gadget may want to placed their basic competencies to use in a brand new one. Brief for R Street Institute et al. as Amici Curiae 2.
The report right here demonstrates the numerous ways wherein reimplementing an interface can similarly the development of laptop applications. The jury heard that shared interfaces are important for one of a kind applications to talk to every different. App. 125 (“We ought to agree at the APIs in order that the utility I write to expose a movie runs in your device”). It heard that the reimplementation of interfaces is necessary if programmers are that allows you to use their received competencies. Id., at 191 (“If the API labels trade, then both the software wouldn’t preserve to paintings anymore or the developer . . . might ought to learn a whole new language with a purpose to use these API labels”). It heard that the reuse of APIs is common within the industry. Id., at a hundred and fifteen, one hundred fifty five, 663. It heard that Sun itself had used pre-current interfaces in developing Java. Id., at 664. And it heard that Sun executives concept that big use of the Java programming language, inclusive of use on a telephone platform, could gain the enterprise. Id., at one hundred thirty–133.
Amici supporting Google have summarized those identical factors—points that witnesses defined to the jury. See, e.g., Brief for Copyright Scholars as Amici Curiae 25 (“[T]he portions of Java SE that Google reimplemented can also have helped maintain consistency of use inside the larger Java developer network”); Brief for Microsoft Corporation as Amicus Curiae 22 (“[A]llowing reasonable truthful use of functional code allows innovation that creates new possibilities for the whole marketplace to develop”); Brief for eighty three Computer Scientists as Amici Curiae 20 (“Reimplementing interfaces fueled sizeable adoption of popular programming languages” (emphasis deleted)); Brief for R Street Institute et al. as Amici Curiae 15–20 (describing Oracle’s reimplementation of different APIs); see also Brief for American Antitrust Institute as Amicus Curiae 7 (“Copyright on largely useful elements of software that [have] grow to be an industry wellknown offers a copyright holder anti-aggressive power”).
These and related statistics convince us that the “cause and individual” of Google’s copying become transformative—to the point wherein this thing too weighs in favor of truthful use.
There are two different issues which might be regularly taken up beneath the primary issue: commerciality and true faith. The text of §107 consists of diverse noncommercial uses, consisting of teaching and scholarship, as paradigmatic examples of privileged copying. There is no doubt that a finding that copying changed into not commercial in nature guidelines the scales in desire of honest use. But the inverse isn't always true, as many common fair uses are indubitably commercial. For instance, the text of §107 includes examples like “information reporting,” that's regularly achieved for industrial profit. So despite the fact that Google’s use changed into a business endeavor—a truth no birthday party disputed, see 886 F. 3d, at 1197—that isn't dispositive of the primary aspect, specially in mild of the inherently transformative role that the reimplementation performed inside the new Android device.
As for awful religion, our decision in Campbell expressed a few skepticism about whether awful faith has any function in a honest use evaluation. 510 U. S., at 585, n. 18. We find this skepticism justifiable, as “[c]opyright is not a privilege reserved for the well-behaved.” Leval 1126. We have no occasion here to say whether proper faith is as a popular be counted a beneficial inquiry. We certainly word that given the power of the opposite factors pointing in the direction of truthful use and the jury finding in Google’s choose on hotly contested proof, that factbound attention isn't always determinative on this context.
C. “The Amount and Substantiality of the Portion Used”
If one considers the asserting code in isolation, the quantitative amount of what Google copied became big. Google copied the asserting code for 37 packages of the Sun Java API, totaling approximately eleven,500 lines of code. Those lines of code quantity to clearly all the declaring code needed to call up masses of various responsibilities. On the opposite hand, if one considers the entire set of software program cloth in the Sun Java API, the quantitative quantity copied became small. The total set of Sun Java API laptop code, including enforcing code, amounted to two.86 million strains, of which the copied eleven,500 traces were simplest 0.4 percent. App. 212.
The query here is whether those eleven,500 lines of code need to be regarded in isolation or as one part of the extensively more complete. We have stated that even a small quantity of copying may additionally fall outside of the scope of truthful use wherein the excerpt copied consists of the “ ‘coronary heart’ ” of the original work’s creative expression. Harper & Row, 471 U. S., at 564–565. On the opposite hand, copying a bigger quantity of cloth can fall within the scope of honest use wherein the fabric copied captures little of the fabric’s innovative expression or is central to a copier’s valid reason. See, e.g., Campbell, 510 U. S., at 588; New Era Publications Int’l, ApS v. Carol Publishing Group, 904 F.2nd 152, 158 (CA2 1990). If a defendant had copied one sentence in a unique, that copying may well be insubstantial. But if that unmarried sentence set forth one of the international’s shortest brief stories—“When he woke up, the dinosaur turned into nevertheless there.”—the query appears much specific, as the copied material constitutes a small a part of the radical but the entire short story. See A. Monterroso, El Dinosaurio, in Complete Works & Other Stories 42 (E. Grossman transl. 1995). (In the unique Spanish, the tale reads: “Cuando despertó, el dinosaurio todavía estaba allí.”)
Several functions of Google’s copying advise that the better way to examine the numbers is to keep in mind the several million lines that Google did no longer replica. For one factor, the Sun Java API is inseparably bound to the ones assignment-imposing traces. Its motive is to name them up. For every other, Google copied the ones lines no longer because of their creativity, their beauty, or maybe (in a sense) because of their cause. It copied them because programmers had already discovered to work with the Sun Java API’s machine, and it might have been hard, possibly prohibitively so, to draw programmers to construct its Android telephone device with out them. Further, Google’s basic cause became to create a specific venture-related gadget for a different computing surroundings (smartphones) and to create a platform—the Android platform—that might help obtain and popularize that objective. The “substantiality” aspect will typically weigh in want of fair use in which, as right here, the quantity of copying changed into tethered to a valid, and transformative, purpose. Supra, at 25–26; see Campbell, 510 U. S., at 586–587 (explaining that the factor three “enquiry will harken returned to the primary of the statutory factors, for . . . the volume of permissible copying varies with the cause and man or woman of the use”).
We do now not consider the Federal Circuit’s end that Google could have performed its Java-compatibility objective by using copying handiest the one hundred seventy lines of code which might be “essential to put in writing in the Java language.” 886 F. 3d, at 1206. In our view, that end perspectives Google’s legitimate objectives too narrowly. Google’s primary goal turned into now not surely to make the Java programming language usable on its Android systems. It became to allow programmers to make use of their understanding and enjoy using the Sun Java API once they wrote new packages for smartphones with the Android platform. In precept, Google would possibly have created its own, extraordinary system of maintaining code. But the jury ought to have located that its doing so might no longer have achieved that basic goal. In a sense, the putting forward code turned into the important thing that it needed to liberate the programmers’ innovative energies. And it wanted the ones energies to create and to enhance its personal innovative Android systems.
We therefore trust that this “substantiality” element weighs in desire of honest use.
D. Market Effects
The fourth statutory element focuses upon the “effect” of the copying within the “marketplace for or value of the copyrighted paintings.”
17 U. S. C. §107(four). Consideration of this thing, at the least wherein pc applications are at issue, can show extra complex than at the beginning it can appear. It can require a court docket to keep in mind the amount of cash that the copyright proprietor may lose. As we pointed out in Campbell, “verbatim copying of the unique in its entirety for industrial purposes” may properly produce a market alternative for an creator’s paintings. 510 U. S., at 591. Making a film of an creator’s e book may additionally similarly suggest potential or presumed losses to the copyright owner. Those losses generally warfare with copyright’s primary objective: presenting authors with special rights with a view to spur creative expression.
But a capacity lack of sales isn't always the entire story. We right here have to do not forget now not simply the quantity but also the source of the loss. As we mentioned in Campbell, a “lethal parody, like a scathing theatre assessment,” may also “kil[l ] call for for the unique.” Id., at 591–592. Yet this form of harm, even if immediately translated into foregone dollars, is not “cognizable underneath the Copyright Act.” Id., at 592.
Further, we have to don't forget the general public advantages the copying will probably produce. Are the ones advantages, for example, related to copyright’s issue for the creative production of new expression? Are they comparatively important, or unimportant, when as compared with dollar quantities in all likelihood misplaced (deliberating as properly the nature of the supply of the loss)? Cf. MCA, INC. v. Wilson, 677 F.second one hundred eighty, 183 (CA2 1981) (calling for a balancing of public blessings and losses to copyright owner below this thing).
We do no longer say that those questions are usually applicable to the software of honest use, no longer even in the world of computer applications. Nor do we say that these questions are the simplest questions a court would possibly ask. But we do discover them applicable here in assisting to decide the in all likelihood marketplace results of Google’s reimplementation.
As to the possibly amount of loss, the jury may want to have observed that Android did not damage the actual or ability markets for Java SE. And it is able to have observed that Sun itself (now Oracle) could now not were able to input those markets successfully whether Google did, or did not, reproduction a part of its API. First, evidence at trial confirmed that, regardless of Android’s cellphone era, Sun was poorly located to be successful within the cellular telephone market. The jury heard ample evidence that Java SE’s number one marketplace became laptops and computer systems. App. ninety nine, 2 hundred. It also heard that Sun’s many efforts to move into the cell phone market had proved unsuccessful. Id., at a hundred thirty five, 235, 671. As far back as 2006, previous to Android’s launch, Sun’s executives projected declining sales for cell phones because of rising phone era. Id., at 240. When Sun’s former CEO turned into asked without delay whether Sun’s failure to build a telephone became because of Google’s development of Android, he spoke back that it became now not. Id., at 650. Given the evidence displaying that Sun was beset by means of business challenges in growing a mobile smartphone product, the jury turned into entitled to consider that evaluation.
Second, the jury was again and again advised that devices using Google’s Android platform have been exclusive in type from people who licensed Sun’s era. For example, witnesses explained that the broader enterprise distinguished between smartphones and less complicated “characteristic telephones.” Id., at 237. As to the precise devices that used Sun-created software, the jury heard that such a telephones lacked a touchscreen, id., at 359–360, while some other did not have a QWERTY keyboard, identity., at 672. For different cellular devices, the evidence showed that less difficult merchandise, like the Kindle, used Java software, id., at 396, whilst extra superior technology, just like the Kindle Fire, had been constructed at the Android operating machine, identification., at 206. This record evidence demonstrates that, as opposed to just “repurposing [Sun’s] code from larger computers to smaller computers,” submit, at sixteen, Google’s Android platform become part of a awesome (and more advanced) market than Java software.
Looking to those essential variations, Google’s financial professional instructed the jury that Android turned into now not a marketplace replacement for Java’s software. As he defined, “the 2 merchandise are on very distinct gadgets,” and the Android platform, which gives “an entire cellular working stack,” is a “very distinct typ[e] of produc[t]” than Java SE, that's “simply an programs programming framework.” App. 256; see additionally identification., at 172–174. Taken together, the evidence confirmed that Sun’s cellular cellphone business was declining, even as the market an increasing number of demanded a brand new shape of telephone era that Sun turned into never able to offer.
Finally, the jury also heard proof that Sun foresaw a benefit from the broader use of the Java programming language in a brand new platform like Android, as it'd in addition amplify the network of Java-trained programmers. Id., at 131–133; see also identification., at 153 (“Once an API starts offevolved getting reimplemented, you understand it has succeeded”). In different words, the jury should have understood Android and Java SE as operating in awesome markets. And because there are markets at difficulty, programmers studying the Java language to work in one market (smartphones) are then able to convey the ones talents to the other market (laptops). See four Nimmer on Copyright §13.05[A] (explaining that aspect four asks what the effect of “widespread behavior of the type engaged in through the defendant” might be in the marketplace for the present work).
Sun presented proof to the contrary. Indeed, the Federal Circuit held that the “marketplace outcomes” component militated towards fair use in part due to the fact Sun had attempted to enter the Android market. 886 F. 3d, at 1209 (Sun sought licensing agreement with Google). But the ones licensing negotiations concerned a great deal greater than 37 programs of asserting code, masking subjects like “the implementation of [Java’s] code” and “branding and cooperation” among the companies. App. 245; see additionally four Nimmer on Copyright §13.05[A] (cautioning against the “danger of circularity posed” by means of considering unrealized licensing possibilities because “it's far a given in each fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical marketplace for licensing the very use at bar”). In any event, the jury’s fair use dedication means that neither Sun’s effort to obtain a license nor Oracle’s conflicting proof can conquer proof indicating that, at a minimal, it would were hard for Sun to go into the cellphone marketplace, even had Google now not used quantities of the Sun Java API.
On the other hand, Google’s copying helped Google make a great amount of money from its Android platform. And enforcement of the Sun Java API copyright would possibly supply Oracle a extensive proportion of those budget. It is important, however, to take into account why and how Oracle would possibly have come to be entitled to this money. When a brand new interface, like an API or a spreadsheet application, first comes available on the market, it is able to entice new users because of its expressive characteristics, consisting of a higher visual display or because of its advanced functionality. As time passes, however, it could be treasured for a exceptional motive, namely, because customers, which include programmers, are simply used to it. They have already discovered the way to paintings with it. See Lotus Development Corp., forty nine F. 3d, at 821 (Boudin, J., concurring).
The file right here is packed with proof that this factor debts for Google’s desire to apply the Sun Java API. See, e.g., App. 169–a hundred and seventy, 213–214. This source of Android’s profitability has tons to do with 1/3 events’ (say, programmers’) investment in Sun Java packages. It has correspondingly less to do with Sun’s funding in developing the Sun Java API. We have no reason to accept as true with that the Copy-proper Act seeks to protect 0.33 parties’ investment in learning a way to perform a created work. Cf. Campbell, 510 U. S., at 591–592 (discussing the want to identify those harms which can be “cognizable under the Copyright Act”).
Finally, given programmers’ funding in mastering the Sun Java API, to allow enforcement of Oracle’s copyright right here would hazard harm to the public. Given the costs and difficulties of producing opportunity APIs with similar appeal to programmers, permitting enforcement here could make of the Sun Java API’s asserting code a lock restricting the destiny creativity of recent applications. Oracle by myself might hold the important thing. The result could well prove enormously profitable to Oracle (or other companies retaining a copyright in laptop interfaces). But the ones profits could properly flow from innovative upgrades, new packages, and new makes use of advanced with the aid of customers who have found out to work with that interface. To that quantity, the lock might intervene with, not in addition, copyright’s simple creativity objectives. See Connectix Corp., 203 F. 3d, at 607; see additionally Sega Enterprises, 977 F. 2nd, at 1523–1524 (“An try to monopolize the marketplace by means of making it not possible for others to compete runs counter to the statutory cause of promoting innovative expression”); Lexmark Int’l, 387 F. 3d, at 544 (noting that in which a subsequent consumer copied a laptop program to foster capability, it turned into now not exploiting the applications “industrial price as a copyrighted paintings” (emphasis in authentic)). After all, “copyright materials the financial incentive to [both] create and disseminate ideas,” Harper & Row, 471 U. S., at 558, and the reimplementation of a user interface allows creative new pc code to greater effortlessly enter the marketplace.
The unsure nature of Sun’s ability to compete in Android’s market area, the sources of its lost sales, and the danger of creativity-associated harms to the public, whilst taken together, persuade that this fourth factor—market results—also weighs in desire of honest use.
* * *
The truth that computer applications are more often than not practical makes it difficult to apply conventional copyright ideas in that technological world. See Lotus Development Corp., 49 F. 3d, at 820 (Boudin, J., concurring). In doing so right here, we've got no longer modified the nature of these principles. We do not overturn or modify our in advance instances related to truthful use—instances, as an instance, that contain “knockoff ” products, journalistic writings, and parodies. Rather, we right here apprehend that application of a copyright doctrine including fair use has long proved a cooperative attempt of Legislatures and courts, and that Congress, in our view, intended that it so preserve. As such, we've got appeared to the ideas set forth in the fair use statute, §107, and set forth in our in advance cases, and carried out them to this exclusive type of copyrighted work.
We attain the belief that in this case, where Google reimplemented a person interface, taking simplest what changed into needed to permit customers to put their amassed abilities to work in a new and transformative software, Google’s copying of the Sun Java API became a honest use of that fabric as a remember of regulation. The Federal Circuit’s opposite judgment is reversed, and the case is remanded for further court cases in conformity with this opinion.
It is so ordered.
Justice Barrett took no component inside the consideration or decision of this example.
Computer System Diagram
Some readers may discover it useful to begin with an explanation of what a “software platform” is. Put definitely, a software platform collects all of the software tools that a programmer may want to build pc packages. The Android platform, for example, includes an “operating device,” “middle libraries,” and a “virtual gadget,” amongst other tools. App. 197–198.
The diagram beneath illustrates the overall capabilities of a trendy laptop system, with the dotted line reflecting the department between a computer’s hardware and its software. (It isn't intended to reflect any precise technology at problem in this case.)
J. Garrido & R. Schlesinger, Principles of Modern Operating Systems 8 (2008) (“Figure 1.4. An External View of a Computer System”).
Sun Java API Diagram
This photograph depicts the connection between the three elements of the Sun Java API technology at difficulty, the use of the District Court’s instance. Oracle, 872 F. Supp. 2nd, at 980–981. The programmer enters a technique call to invoke a challenge from inside the API (the strong arrow). The unique symbols in the technique call correspond to a single project, that is positioned inside a specific class. That magnificence is positioned inside a specific bundle. All of the traces of code that provide that enterprise and name the methods, classes, and programs are “declaring code.” For every method, the declaring code is related to particular lines of implementing code (the dotted arrow). It is that enforcing code (which Google wrote for its Android API) that clearly instructs the pc in the programmer’s software.
SUPREME COURT OF THE UNITED STATES
GOOGLE LLC, PETITIONER v. ORACLE AMERICA, INC.
on writ of certiorari to the usa court docket of appeals for the federal circuit
[April 5, 2021]
Justice Thomas, with whom Justice Alito joins, dissenting.
Oracle spent years growing a programming library that effectively attracted software builders, consequently enhancing the cost of Oracle’s merchandise. Google sought a license to apply the library in Android, the running machine it become growing for cellular phones. But when the businesses could not agree on phrases, Google really copied verbatim 11,500 strains of code from the library. As a result, it erased ninety seven.5% of the value of Oracle’s partnership with Amazon, made tens of billions of bucks, and established its role as the proprietor of the biggest mobile operating system inside the global. Despite this, the majority holds that this copying changed into truthful use.
The Court reaches this not going result in huge element because it bypasses the antecedent query in reality before us: Is the software code at issue right here blanketed with the aid of the Copyright Act? The majority purports to count on, without identifying, that the code is included. But its honest-use analysis is entirely inconsistent with the huge protection Congress gave to computer code. By skipping over the copyrightability query, the majority disregards half the relevant statutory text and distorts its fair-use evaluation. Properly considering that statutory text, Oracle’s code at problem here is copyrightable, and Google’s use of that copyrighted code changed into something however fair.
In the Nineteen Nineties, Oracle created a programming language called Java. Like many programming languages, Java allows developers to prewrite small subprograms referred to as “methods.” Methods form the constructing blocks of extra complicated programs. This method isn't in contrast to what legislatures do with statutes. To shop area and time, legislatures outline phrases after which use the ones definitions as a shorthand. For instance, the legal definition for “refugee” is extra than three hundred phrases long.
8 U. S. C. §1101(42). Rather than repeat all the ones phrases every time they're applicable, the U. S. Code encapsulates all of them with a single time period that it then inserts into each relevant section. Java methods work similarly. Once a way has been defined, a developer want only kind some characters (the approach name and relevant inputs) to invoke everything contained inside the subprogram. A programmer familiar with prewritten strategies can string many of them together to quick increase complicated applications without having to put in writing from scratch all the fundamental subprograms.
To create Java techniques, developers use two sorts of code. The first, “declaring code,” names the method, defines what facts it may manner, and defines what sort of statistics it is able to output. It is just like the described term in a statute. The 2nd, “imposing code,” consists of the step-by using-step instructions that make those methods run. It is like the designated definition in a statute.
Oracle’s putting forward code changed into vital to its commercial enterprise version. Oracle profited financially via encouraging developers to create packages written in Java and then charging manufacturers a fee to embed of their gadgets the Java software program platform needed to run those packages. To this give up, Oracle created a piece referred to as Java 2 Platform, Standard Edition, which blanketed a quite organized library containing about 30,000 methods. Oracle gave developers loose get right of entry to to those techniques to encourage them to put in writing applications for the Java platform. In return, builders have been required to make their programs well suited with the Java platform on any device. Developers had been recommended to make improvements to the platform, however they were required to release beneficial changes to the public. If a agency wanted to personalize the platform and hold the ones customizations mystery for commercial enterprise purposes, it needed to pay for a separate license.
By 2005, many corporations have been racing to broaden working systems for what might become cutting-edge smartphones. Oracle’s method had correctly encouraged tens of millions of programmers to study Java. As a result, Java software program platforms were within the sizable majority of mobile phones. Google desired to draw those programmers to Android by using which include in Android the declaring code with which they have been now familiar. But the founding father of Android, Andrew Rubin, understood that the affirming code become copyrighted, so Google sought a custom license from Oracle. At least four times among 2005 and 2006, the two businesses attempted to barter a license, however they have been unsuccessful, in element due to “accept as true with troubles.” App. 657.
When the ones negotiations broke down, Google surely determined to use Oracle’s code besides. Instead of making its very own affirming code—as Apple and Microsoft chose to do—Google copied verbatim 11,500 traces of Oracle’s maintaining code and arranged that code exactly as Oracle had performed. It then marketed Android to tool manufacturers as containing “Core Java Libraries.” Id., at 600. Oracle predictably spoke back by suing Google for copyright infringement. The Federal Circuit ruled that Oracle’s asserting code is copyrightable and that Google’s copying of it became now not truthful use.
The Court wrongly sidesteps the foremost query that we have been requested to answer: Is affirming code protected by copyright? I might maintain that it's far.
Computer code occupies a unique area in highbrow belongings. Copyright law generally protects works of authorship. Patent regulation usually protects inventions or discoveries. A library of code straddles those two classes. It is notably functional like an invention; yet as a writing, it's also a work of authorship. Faced with some thing that would suit in both area, Congress chose copyright, and it covered declaring code in that safety.
The Copyright Act expressly protects laptop code. It recognizes that a “laptop program” is included via copyright. See 17 U. S. C. §§109(b), 117, 506(a). And it defines “ ‘pc software’ ” as “a set of statements or instructions to be used immediately or indirectly in a pc a good way to result in a sure result.” §one zero one. That definition sincerely covers declaring code—sets of statements that in a roundabout way carry out computer capabilities via triggering prewritten enforcing code.
Even with out that specific language, declaring code might fulfill the general take a look at for copyrightability. “Copyright protection subsists . . . in original works of authorship constant in any tangible medium of expression.” §102(a). “Works of authorship include . . . literary works,” which can be “works . . . expressed in words, numbers, or different verbal or numerical symbols.” §§one zero one, 102(a). And a piece is “original” if it's miles “independently created by using the author” and “possesses at least a few minimal degree of creativity.” Feist Publications, Inc. v. Rural Telephone Service Co.,
499 U.S. 340, 345 (1991). The lines of putting forward code within the Java platform effortlessly satisfy this “extremely low” threshold. Ibid. First, they're expressed in “words, numbers, or different verbal or numerical symbols” and are as a result works of authorship. §a hundred and one. Second, as Google concedes, the strains of maintaining code are authentic because Oracle ought to have created them any number of approaches.
Google contends that maintaining code is a “method of operation” and for that reason excluded from safety by §102(b). That subsection excludes from copyright safety “any idea, process, process, gadget, approach of operation, concept, precept, or discovery, no matter the shape wherein it's miles defined, defined, illustrated, or embodied.” This provision codifies the “concept/expression dichotomy” that copyright safety covers most effective the “the writer’s expression” of an idea, not the idea itself. Golan v. Holder,
565 U.S. 302, 328 (2012). A assets right inside the idea itself “can only be secured, if it may be secured in any respect, by means of letters-patent.” Baker v. Selden,
a hundred and one U.S. 99, 105 (1880). Thus, as an instance, a “approach of ebook-retaining” isn't always included via copyright, but the expression describing that accounting approach is. Id., at one zero one–102. So too, someone who writes a e book inventing the idea of declaring code has a copyright protection in the expression in the ebook, but not within the idea of asserting code itself. Google acknowledges that implementing code is protected by way of the Copyright Act, but it contends that asserting code is lots greater functional and as a result is a “method of operation” outside the scope of safety.
That argument fails. As the majority efficiently acknowledges, asserting code and imposing code are “inextricably sure” collectively. Ante, at 22. Declaring code defines the scope of a hard and fast of imposing code and offers a programmer a way to apply it by using shortcut. Because affirming code incorporates enforcing code, it has no characteristic on its personal. Implementing code is similar. Absent putting forward code, builders could need to write every application from scratch, making complex applications prohibitively time ingesting to create. The functionality of each maintaining code and enforcing code will for that reason usually upward push and fall together.
Google’s argument additionally can not account for Congress’ decision to define covered computer code as “a fixed of statements or instructions to be used immediately or in a roundabout way in a computer if you want to result in a sure result.” §a hundred and one (emphasis brought). Hence, Congress rejected any specific distinction among maintaining and implementing code. Implementing code orders a laptop operation without delay. Declaring code does so indirectly by way of incorporating imposing code. When confronted with fashionable language barring protection for “strategies of operation” and specific language protective asserting code, the “ ‘precise governs the general.’ ” RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
566 U.S. 639, 645 (2012).
This context makes clean that the phrase “method of operation” in §102(b) does not dispose of safety from putting forward code actually due to the fact it is useful. That interpretation does now not, however, render “method of operation” meaningless. It is “given greater particular content by using the neighboring phrases with which it's miles associated.” United States v. Williams,
553 U.S. 285, 294 (2008). Other terms inside the same subsection including “concept,” “precept,” and “concept” endorse that “technique of operation” covers the capabilities and thoughts implemented by way of computer code—including math functions, accounting methods, or the concept of maintaining code—no longer the precise expression Oracle created. Oracle cannot copyright the idea of the use of affirming code, but it may copyright the specific expression of that idea discovered in its library.
Google additionally contends that affirming code is not copyrightable because the “merger doctrine” bars copyright protection while there's handiest one way to express an concept. That argument fails for the identical reasons Google’s §102(b) argument fails. Even if the doctrine exists, Google admits that it's miles merely an application of §102(b). And, in any event, there may additionally have been best one manner for Google to copy the traces of putting forward code, but there had been innumerable ways for Oracle to write them. Certainly, Apple and Microsoft managed to create their own asserting code.
The Court inexplicably declines to deal with copyrightability. Its sole stated purpose is that “technological, economic, and business-associated occasions” are “unexpectedly converting.” Ante, at 15. That, of path, has been a consistent wherein computers are involved.
Rather than cope with this essential question, the Court certainly assumes that affirming code is included and then concludes that every honest-use thing favors Google. I trust the bulk that Congress did now not “shiel[d] computer applications from the ordinary utility” of fair use. Ante, at 18. But the bulk’s application of honest use is a long way from normal. By skipping copyrightability, the bulk gets the method backward, causing the Court to avoid a key end that ineluctably affects the truthful-use evaluation: Congress rejected categorical differences among putting forward and implementing code. But the bulk creates just any such distinction. The result of this distorting analysis is an opinion that makes it hard to imagine any situation in which putting forward code will stay covered with the aid of copyright.
I consider the bulk that, underneath our precedent, honest use is a blended question of reality and law and that questions of law predominate.[three] Because the jury issued a locating of truthful use in favor of Google, we must construe all real disputes and inferences in Google’s prefer and ask whether or not the proof become enough as a count number of regulation to aid the jury’s verdict. See Fed. Rule Civ. Proc. 50(b). But whether a statutory honest-use issue favors one side or the other is a felony question reviewed de novo. Congress has set up 4 statutory honest-use factors for courts to weigh.[four] Three decisively prefer Oracle. And even assuming that the ultimate issue favors Google, that component, without extra, can not legally set up honest use in this context.
The majority holds otherwise—concluding that every component favors Google—with the aid of depending, in massive part, on a difference it attracts between affirming and enforcing code, a difference that the statute rejects. Tellingly, the majority evaluates the factors neither in sequential order nor in order of significance (at the least factors are extra vital below our precedent[five]). Instead, it begins with the second aspect: the character of the copyrighted paintings. It proceeds in this manner for you to create a difference among declaring and imposing code that renders the previous much less worth of protection than the latter. Because the bulk’s wrong analysis rests so heavily in this factor, I start with it as well.
A. The Nature of the Copyrighted Work
This element requires courts to assess the level of creativity or functionality within the authentic work. It normally favors fair use whilst a copyrighted work is extra “informational or functional” than “creative.” 4 M. Nimmer & D. Nimmer, Copyright §thirteen.05[A][a] (2019). Because code is predominantly useful, this element will regularly favor copying whilst the original work is laptop code. But because Congress determined that declaring and imposing code are copyrightable, this aspect on my own can not assist a finding of honest use.
The majority, however, uses this element to create a difference between affirming and enforcing code that during effect eliminates copyright safety from affirming code. It concludes that, in contrast to imposing code, affirming code is a ways “from the center of copyright” as it will become precious only while 0.33 events (computer programmers) value it and because it's miles “inherently bound together with uncopyrightable ideas.” Ante, at 23–24.
Congress, however, rejected this form of categorical distinction that would make asserting code less worthy of protection. The Copyright Act protects code that operates “in a computer so one can bring about a sure end result” both “immediately” (implementing code) and “not directly” (maintaining code). §a hundred and one. And if some thing, maintaining code is nearer to the “middle of copyright.” Ante, at 24. Developers cannot even see imposing code. Oracle Am., Inc. v. Google Inc., 2016 WL 3181206, *4 (ND Cal., June eight, 2016); see additionally ante, at 23 (asserting code is “user-focused”). Implementing code as a consequence conveys no expression to builders. Declaring code, in assessment, is consumer facing. It need to be designed and prepared in a way this is intuitive and comprehensible to builders so that they can invoke it.
Even placing those concerns apart, the majority’s distinction is untenable. True, putting forward code is “inherently sure together with uncopyrightable thoughts.” Ante, at 23–24. Is anything not? Books are inherently bound with uncopyrightable thoughts—the usage of chapters, having a plot, or together with talk or footnotes. This does now not area books some distance “from the middle of copyright.” And implementing code, which the bulk concedes is copyrightable, is inherently bound up with “the division of computing tasks” that cannot be copyrighted. Ante, at 22. We have now not discounted a work of authorship clearly because it's miles related to noncopyrightable thoughts. While thoughts cannot be copyrighted, expressions of those thoughts can. Golan, 565 U. S., at 328.
Similarly, it makes no distinction that the price of putting forward code relies upon on how a whole lot time 0.33 parties spend money on gaining knowledge of it. Many other copyrighted works rely upon the identical. A Broadway musical script wishes actors and singers to make investments time mastering and rehearsing it. But a theater can not reproduction a script—the rights to which are held via a smaller theater—honestly because it wants to trap actors to switch theaters and because copying the script is greater green than requiring the actors to research a new one.
What the bulk says is true of putting forward code is not any much less genuine of imposing code. Declaring code is how programmers access prewritten enforcing code. The value of that enforcing code for this reason is directly proportional to how a good deal programmers fee the associated asserting code. The majority efficiently acknowledges that affirming code “is inextricably certain up with enforcing code,” ante, at 22–23, but it overlooks the consequences of its personal end.
Only after wrongly concluding that the character of declaring code makes that code generally unworthy of protection does the Court move on to recall the other elements. This starting mistake taints the Court’s whole analysis.
B. Market Effects
“[U]ndoubtedly the single most crucial detail of fair use” is the effect of Google’s copying “ ‘upon the potential marketplace for or price of [Oracle’s] copyrighted paintings.’ ” Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U.S. 539, 566 (1985). As the Federal Circuit efficiently decided, “proof of real and capacity harm stemming from Google’s copying was ‘overwhelming.’ ” 886 F.3d 1179, 1209 (2018). By copying Oracle’s code to develop and launch Android, Google ruined Oracle’s capability market in at least methods.
First, Google removed the motive producers have been inclined to pay to put in the Java platform. Google’s business version differed from Oracle’s. While Oracle earned revenue via charging tool manufacturers to install the Java platform, Google received sales basically thru ad sales. Its method turned into to launch Android to device producers free of charge and then use Android as a car to acquire records on purchasers and deliver behavioral advertisements. With a unfastened product available that included a lot of Oracle’s code (and therefore with similar programming potential), device producers now not saw a lot cause to pay to embed the Java platform.
For instance, earlier than Google launched Android, Amazon paid for a license to embed the Java platform in Kindle gadgets. But after Google launched Android, Amazon used the fee-unfastened availability of Android to barter a 97.five% bargain on its license rate with Oracle. Evidence at trial further showed that right after Google released Android, Samsung’s settlement with Oracle dropped from $forty million to about $1 million. Google contests none of this except to mention that Amazon used a exceptional Java platform, Java Micro Edition rather than Java Standard Edition. That difference is inconsequential due to the fact the former become surely a smaller subset of the latter. Google copied code found in each platforms. The majority does now not dispute—or maybe mention—this significant harm.
Second, Google interfered with possibilities for Oracle to license the Java platform to developers of phone operating systems. Before Google copied Oracle’s code, almost every cellular telephone in the marketplace contained the Java platform. Oracle’s code turned into notably treasured to absolutely everyone who wanted to broaden smartphones, and is the reason why Google attempted no fewer than four times to license it. The majority’s observation that Google additionally sought different licenses from Oracle, ante, at 33, does now not alternate this relevant fact. Both parties agreed that Oracle should enter Google’s present day market by using licensing its asserting code. But by way of copying the code and freeing Android, Google removed Oracle’s possibility to license its code for that use.
The majority writes off this harm by saying that the jury may want to have located that Oracle might not have been able to enter the current cellphone marketplace effectively. Ante, at 31–32. But whether or not Oracle should itself enter that market is handiest 1/2 the photo. We observe now not only the capability market “that creators of unique works might in preferred broaden” however also the ones potential markets the copyright holder might “license others to develop.” Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569, 592 (1994). A ebook writer need now not be capable of in my opinion convert a book right into a movie as long as he can license a person else to accomplish that. That Oracle could have licensed its code for use in Android is undisputed.
Unable to noticeably dispute that Google’s actions had a disastrous impact on Oracle’s potential marketplace, the majority modifications direction and asserts that enforcing copyright protection should damage the public by way of giving Oracle the power to “limi[t] the future creativity” of applications on Android. Ante, at 34. But this situation issues most effective variations of Android released via November 2014. Order in No. three:10–cv–3561 (ND Cal., Feb. 5, 2016), Doc. 1479, p. 2 (figuring out variations thru Android Lollipop 5.0). Google has launched six fundamental variations because then. Only approximately 7.7% of active Android devices nonetheless run the variations at problem. The majority’s situation about a lock-in effect would possibly deliver more weight if this suit worried variations of Android widely in use or with a purpose to be extensively in use. It makes little experience in a match approximately versions that are near obsolete.
The majority’s difficulty about a lock-in impact is also speculation belied by means of records. First, Oracle by no means had lock-in power. The majority (once more) overlooks that Apple and Microsoft created mobile running systems without the usage of Oracle’s declaring code. Second, Oracle always made its declaring code freely available to programmers. There is little cause to suspect Oracle would possibly damage programmers by way of preventing now. And third, the bulk in reality assumes that the jury, in a future healthy over contemporary Android versions, would provide Oracle manage of Android instead of just awarding damages or perpetual royalties.
If the bulk goes to speculate approximately what Oracle would possibly do, it at the least have to don't forget what Google has done. The majority expresses challenge that Oracle would possibly abuse its copyright safety (on previous Android variations) and “ ‘try to monopolize the marketplace.’ ” Ante, at 34–35. But it's far Google that these days become fined a document $5 billion for abusing Android to violate antitrust laws. Case AT.40099, Google Android, July 18, 2018 (Eur. Comm’n-Competition); European Comm’n Press Release, Commission Fines Google €4.34 Billion for Illegal Practices Regarding Android Mobile Devices to Strengthen Dominance of Google’s Search Engine, July 18, 2018. Google controls the maximum widely used cell operating device inside the world. And if groups might also now freely copy libraries of maintaining code on every occasion it's miles extra convenient than writing their personal, others will probably hesitate to spend the assets Oracle did to create intuitive, well-prepared libraries that entice programmers and could compete with Android. If the majority is involved approximately monopolization, it need to recall whether or not Google is the greater chance.
By copying Oracle’s paintings, Google decimated Oracle’s marketplace and created a cell operating gadget now in over 2.5 billion actively used devices, earning tens of billions of dollars every year. If these consequences on Oracle’s potential marketplace desire Google, some thing could be very incorrect with our truthful-use analysis.
C. The Purpose and Character of the Use
The 2nd-most critical component—“the motive and man or woman of the use, along with whether such use is of a commercial nature or is for nonprofit instructional functions,” §107(1)—calls for us to take into account whether or not use become “commercial” and whether or not it became “transformative.” Campbell, 510 U. S., at 578–579. Both factors closely choose Oracle.
Begin with the overpowering commercial nature of Google’s copying. In 2015 by myself, the 12 months before the truthful-use trial, Google earned $18 billion from Android. That number has absolute confidence dramatically elevated as Android has grown to dominate the global market proportion.[nine] On this scale, Google’s use of Oracle’s maintaining code weighs closely—if not decisively—against truthful use.
The majority attempts to push aside this overwhelming business use through noting that industrial use does “no longer necessarily” weigh in opposition to honest use. Ante, at 27. True enough. Commercial use sometimes can be conquer with the aid of use that is sufficiently “transformative.” Campbell, 510 U. S., at 579. But “we cannot ignore [Google’s] meant purpose of supplanting [Oracle’s] commercially valuable” platform with its very own. Harper, 471 U. S., at 562 (emphasis in authentic). Even if we could, we've got never determined honest use for copying that reaches into the tens of billions of bucks and wrecks
the copyright holder’s market.
Regardless, Google festivals no higher on transformative use. A courtroom usually can not discover truthful use except the copier’s use is transformative. A work is “transformative” if it “adds some thing new, with a further purpose or exceptional person, altering the primary with new expression, that means, or message.” Campbell, 510 U. S., at 579. This query is “guided by way of the examples [of fair use] given within the preamble to §107.” Id., at 578. Those examples consist of: “complaint, comment, information reporting, teaching . . . , scholarship, or studies.” §107. Although those examples are not unique, they're illustrative, and Google’s repurposing of Java code from large computers to smaller computers resembles none of them. Google did no longer use Oracle’s code to teach or opposite engineer a system to make certain compatibility. Instead, to “avoid the drudgery in operating up some thing clean,” id., at 580, Google used the maintaining code for the same exact cause Oracle did. As the Federal Circuit successfully determined, “[t]right here is not anything honest about taking a copyrighted work verbatim and the usage of it for the identical purpose and function because the unique in a competing platform.” 886 F. 3d, at 1210.
The majority acknowledges that Google used the copied affirming code “for the equal purpose” Oracle did. Ante, at 25. So, through turns, the bulk transforms the definition of “transformative.” Now, we're told, “transformative” actually means—as a minimum for laptop code—a use with a view to assist others “create new products.” Ibid; accord, ante, at 26 (Google’s copying “can in addition the improvement of computer packages”).
That new definition eviscerates copyright. A movie studio that converts a e-book into a film with out permission not simplest creates a brand new product (the film) but permits others to “create products”—film reviews, products, YouTube spotlight reels, overdue night time tv interviews, and so on. Nearly every laptop application, as soon as copied, may be used to create new products. Surely the bulk could no longer say that an author can pirate the next model of Microsoft Word simply due to the fact he can use it to create new manuscripts.[eleven]
Ultimately, the bulk wrongly conflates transformative use with derivative use. To be transformative, a piece ought to do some thing essentially exclusive from the authentic. A work that without a doubt serves the equal motive in a new context—which the bulk concedes is proper here—is derivative, no longer transformative. Congress made clean that Oracle holds “the one of a kind rights . . . to prepare by-product works.” §106(2). Rather than create a transformative product, Google “earnings[ed] from exploitation of the copyrighted cloth without paying the standard price.” Harper, 471 U. S., at 562.
D. The Amount and Substantiality of the Portion Used
The statutory truthful-use elements additionally educate us to take into account “the quantity and substantiality of the component used on the subject of the copyrighted paintings as a whole.” §107(3). In popular, the extra the quantity of use, the much more likely the copying is bigoted. Ibid. But even supposing the copier takes best a small quantity, copying the “ ‘heart’ ” or “focal factors” of a piece weighs towards honest use, Harper, 471 U. S., at 565–566, unless “ ‘no greater turned into taken than vital’ ” for the copier to gain transformative use, Campbell, 510 U. S., at 589.
Google does no longer dispute the Federal Circuit’s conclusion that it copied the coronary heart or focal factors of Oracle’s paintings. 886 F. 3d, at 1207. The putting forward code is what attracted programmers to the Java platform and why Google changed into so interested in that code. And Google copied that code “verbatim,” which weighs in opposition to fair use. Harper, 471 U. S., at 565. The majority does no longer disagree. Instead, it concludes that Google took no extra than vital to create new merchandise. That analysis fails due to the fact Google’s use isn't always transformative. Campbell, 510 U. S., at 586 (recognizing that this fourth issue “will harken back to the [purpose-and-character] statutory facto[r]”). This component therefore weighs towards Google.
Even if Google’s use were transformative, the bulk is wrong to conclude that Google copied best a small portion of the authentic paintings. The majority factors out that the eleven,500 strains of putting forward code—enough to fill approximately six hundred pages in an appendix, Tr. of Oral Arg. 57—had been just a fraction of the code inside the Java platform. But the proper denominator is affirming code, not all code. A copied work is quantitatively enormous if it may “serve as a market replacement for the unique” paintings or “potentially certified derivatives” of that work. Campbell, 510 U. S., at 587. The affirming code is what attracted programmers. And it's miles what made Android a “market replacement” for “doubtlessly certified derivatives” of Oracle’s Java platform. Google’s copying become each qualitatively and quantitatively extensive.
* * *
In sum, 3 of the four statutory fair-use elements weigh decidedly against Google. The nature of the copyrighted paintings—the sole element in all likelihood favoring Google—cannot by itself guide a dedication of truthful use due to the fact holding otherwise would improperly override Congress’ willpower that affirming code is copyrightable.
The majority purports to save for any other day the query whether declaring code is copyrightable. The handiest obvious reason for doing so is due to the fact the majority can not rectangular its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable. The majority has used honest use to eviscerate Congress’ considered policy judgment. I respectfully dissent.