Transformative Use in Software

12 Pages Posted: 17 Apr 2017 Last revised: 29 Aug 2017

See all articles by Clark D. Asay

Clark D. Asay

Brigham Young University - J. Reuben Clark Law School

Date Written: April 14, 2017


Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”

When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of Oracle’s Java software in its Android platform constituted fair use. Oracle has appealed the decision, claiming, among other things, that Google’s use of its copyrighted Java software could not be fair use because the use was not transformative. The use was not transformative, claim Oracle and its amici, because Google uses Oracle’s software for the same functional purposes for which it was written.

This Essay contends that accepting Oracle’s argument would mean that fair use rarely if ever applies in the software reuse context. Software’s functional nature, after all, means that reuses of software will inevitably involve the software carrying out the same functions for which it was designed. But if that reality alone forecloses the possibility of a fair use defense, it means the productive balance that fair use helps strike between copyright holders and follow-on software innovators may be imperiled. The Essay concludes with some thoughts on how best to apply the transformative use inquiry in software reuse cases.

Keywords: copyright, fair use, transformative use, Java, Android, Google, Oracle

Suggested Citation

Asay, Clark D., Transformative Use in Software (April 14, 2017). 70 Stanford Law Review Online 9 (2017); BYU Law Research Paper No. 17-18. Available at SSRN: or

Clark D. Asay (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

540 JRCB
Brigham Young University
Provo, UT 84602
United States

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