Declaring Computer Code Uncopyrightable with a Creative Fair Use Analysis

Cato Supreme Court Review, vol. 20 (2020-2021), pp. 237-261

George Mason Legal Studies Research Paper No. LS 22-15

27 Pages Posted: 15 Mar 2022 Last revised: 28 Oct 2023

See all articles by Adam Mossoff

Adam Mossoff

George Mason University - Antonin Scalia Law School

Date Written: September 8, 2021

Abstract

Google v Oracle is a blockbuster copyright case. This decade-long lawsuit arose from Google’s unauthorized copying of 11,500 lines of code in the Java computer program in launching its Android smartphone to vast commercial success. When Oracle sued Google for copyright infringement, Google argued that the Java computer program was uncopyrightable or that its copying was fair use. On the first issue of copyrightability, the Supreme Court punted. Instead, Justice Stephen Breyer’s majority opinion sets forth a novel and sweeping fair use defense for Google’s unauthorized commercial copying of computer programs like Java (known as APIs).

This article first explains that the Computer Software Copyright Act of 1980 is clear that APIs are copyrightable, and that the Court should have explicitly addressed this issue. This copyrightability analysis is important, because it elucidates the peculiar nature of Justice Breyer’s fair use analysis in his opinion. Most importantly, it confirms the Court’s ultimate decision: a de facto denial of copyright protection in all APIs. In sum, the Google Court did not skip deciding that APIs are not copyrightable. Rather, Justice Breyer reached this same result through a novel and creative application of fair use doctrine.

Google’s significance cannot be understated: the Court held for the first time that unauthorized copying of a copyrighted work solely for a commercial purpose to sell a competing product qualifies as "fair use." The Court ostensibly limited its analysis to only APIs, but academics and accused infringers are arguing to extend Justice Breyer's creative fair use analysis to other copyrighted works. Time will tell if the Google Court created a (fair use) exception that swallows the (copyright) rule.

Keywords: transformative use, Lotus, Borland, Sun Microsystems, Uneasy Case for Copyright, license, open source, functionality, interoperability, interface, internet, smartphone,

Suggested Citation

Mossoff, Adam, Declaring Computer Code Uncopyrightable with a Creative Fair Use Analysis (September 8, 2021). Cato Supreme Court Review, vol. 20 (2020-2021), pp. 237-261, George Mason Legal Studies Research Paper No. LS 22-15, Available at SSRN: https://ssrn.com/abstract=4057783

Adam Mossoff (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

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