Functionality's Role In Oracle Copyright Ruling Isn't So Novel

Law360, 2021

6 Pages Posted: 12 May 2021

Date Written: May 7, 2021


There has been a common perception in copyright law that the second fair use factor, "the nature of the copyrighted work" is rather unimportant. But the Supreme Court's recent decision in Google v. Oracle paints a very different picture, treating the second factor as the most important factor in the case. Because Oracle's declaring code was highly functional in nature, far from the creative core of what copyright protects, this factor weighed strongly in favor of Google's fair use defense.

Even before this recent case, a minority of courts and commentators had recognized the heightened importance of the second factor in technological contexts such as software. So don't call it a comeback; though it may have been given new life in Google v. Oracle, the second fair use factor has been here for years.

Suggested Citation

Michaels, Andrew C., Functionality's Role In Oracle Copyright Ruling Isn't So Novel (May 7, 2021). Law360, 2021, Available at SSRN: or

Andrew C. Michaels (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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