On October 7, 2020, the Supreme Court heard oral arguments in Google LLC v. Oracle Am. Inc., No. 18-956. This case has been going on for over ten years and is directed to the extent to which copyright law protects software as well as whether the unlicensed use of certain computer code is protected under the fair use doctrine.

The case was brought by Oracle in 2010. Initially, Oracle alleged that Google copied more than 11,000 lines of code from Oracle’s proprietary application programming interface (API) in order to create the Android operating system. Google admitted that it copied portions (less than 1%) of Oracle’s code as well as the overall structure and organization of Oracle’s API library, but argued that its copying was necessary to enable programmers fluent in Java to write with the new Android system and for there to be compatibility with other applications. In addition, Oracle argued that the titles and structure of the API that it copied was not protectable by copyright because it was a functional system and was not creative expression. In 2012, the U.S. District Court for the Northern District of California held that APIs are not subject to copyright. Oracle appealed to the U.S. Court of Appeals for the Federal Circuit, which reversed the District Court’s decision.

After the Supreme Court denied Google’s petition for certiorari, the case was remanded for a determination of whether Google’s use of the code was fair use. Fair use is a legal doctrine that permits the unlicensed use of copyright-protected works in certain circumstances.  Google argued that its use of the code was fair use because it only took the necessary and functional part of Oracle’s code and transformed it into a new mobile platform. In 2016, a jury unanimously agreed that Google’s use of the Java APIs was fair use. Oracle appealed this decision as well and the Federal Circuit once again reversed the lower court decision and held that Google’s use was not fair use.

Google then filed another petition with the Supreme Court seeking review of both Federal Circuit decisions. This time, the Supreme Court granted the petition. The Court also requested the parties to address whether it was procedurally proper for the Federal Circuit to overturn the jury verdict in favor of Google.

At oral argument, the Justices employed a variety of analogies to better understand the issues, such as comparing Google’s use to cracking a safe, a restaurant menu, a football playbook, and a QWERTY keyboard. Google primarily argued that there was only one way to write the commands it used from Oracle’s API and the code it used was just a software interface that could not be copyrighted. Google also urged that under Oracle’s view, the creation of new software would be stunted because developers must be free to reuse snippets of code to rewrite existing functions.

Some of the Justices seemed unconvinced by Google’s argument regarding the necessity of the availability of the code since Apple and Microsoft have been able to develop mobile phone operating systems without copying the Java code. The justices also asked why Oracle should be penalized for developing an efficient or successful solution. The Justices also posed difficult questions for Oracle, noting that courts have said that API is not copyrightable and the entire industry had been built upon the understanding that others could only copy what was necessary.

While the case presents squarely legal issues, the Justices’ questioning illustrated their concern and understanding that their decision may greatly impact the software industry. They noted the concern as to whether all computer code would lose protection if a ruling was issued in favor of Google, or if a ruling for Oracle would stunt and ruin the tech industry. A decision is anticipated to come out at the end of this term.