Google LLC v. Oracle America, Inc. ( 2021 )

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(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
GOOGLE LLC v. ORACLE AMERICA, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
No. 18–956. Argued October 7, 2020—Decided April 5, 2021
Oracle America, Inc., owns a copyright in Java SE, a computer platform
that uses the popular Java computer programming language. In 2005,
Google acquired Android and sought to build a new software platform
for mobile devices. To allow the millions of programmers familiar with
the Java programming language to work with its new Android plat-
form, Google copied roughly 11,500 lines of code from the Java SE pro-
gram. The copied lines are part of a tool called an Application Pro-
gramming Interface (API). An API allows programmers to call upon
prewritten computing tasks for use in their own programs. Over the
course of protracted litigation, the lower courts have considered (1)
whether Java SE’s owner could copyright the copied lines from the
API, and (2) if so, whether Google’s copying constituted a permissible
“fair use” of that material freeing Google from copyright liability. In
the proceedings below, the Federal Circuit held that the copied lines
are copyrightable. After a jury then found for Google on fair use, the
Federal Circuit reversed, concluding that Google’s copying was not a
fair use as a matter of law. Prior to remand for a trial on damages, the
Court agreed to review the Federal Circuit’s determinations as to both
copyrightability and fair use.
Held: Google’s copying of the Java SE API, which included only those
lines of code that were needed to allow programmers to put their ac-
crued talents to work in a new and transformative program, was a fair
use of that material as a matter of law. Pp. 11–36.
(a) Copyright and patents, the Constitution says, serve to “promote
the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writ-
ings and Discoveries.” Art. I, §8, cl. 8. Copyright encourages the pro-
duction of works that others might cheaply reproduce by granting the
2 GOOGLE LLC v. ORACLE AMERICA, INC.
Syllabus
author an exclusive right to produce the work for a period of time. Be-
cause such exclusivity may trigger negative consequences, Congress
and the courts have limited the scope of copyright protection to ensure
that a copyright holder’s monopoly does not harm the public interest.
This case implicates two of the limits in the current Copyright Act.
First, the Act provides that copyright protection cannot extend to “any
idea, procedure, process, system, method of operation, concept, princi-
ple, or discovery . . . .” 17 U. S. C. §102(b). Second, the Act provides
that a copyright holder may not prevent another person from making
a “fair use” of a copyrighted work. §107. Google’s petition asks the
Court to apply both provisions to the copying at issue here. To decide
no more than is necessary to resolve this case, the Court assumes for
argument’s sake that the copied lines can be copyrighted, and focuses
on whether Google’s use of those lines was a “fair use.” Pp. 11–15.
(b) The doctrine of “fair use” is flexible and takes account of changes
in technology. Computer programs differ to some extent from many
other copyrightable works because computer programs always serve a
functional purpose. Because of these differences, fair use has an im-
portant role to play for computer programs by providing a context-
based check that keeps the copyright monopoly afforded to computer
programs within its lawful bounds. Pp. 15–18.
(c) The fair use question is a mixed question of fact and law. Re-
viewing courts should appropriately defer to the jury’s findings of un-
derlying facts, but the ultimate question whether those facts amount
to a fair use is a legal question for judges to decide de novo. This ap-
proach does not violate the Seventh Amendment’s prohibition on
courts reexamining facts tried by a jury, because the ultimate question
here is one of law, not fact. The “right of trial by jury” does not include
the right to have a jury resolve a fair use defense. Pp. 18–21.
(d) To determine whether Google’s limited copying of the API here
constitutes fair use, the Court examines the four guiding factors set
forth in the Copyright Act’s fair use provision: the purpose and char-
acter of the use; the nature of the copyrighted work; the amount and
substantiality of the portion used in relation to the copyrighted work
as a whole; and the effect of the use upon the potential market for or
value of the copyrighted work. §107. The Court has recognized that
some factors may prove more important in some contexts than in oth-
ers. Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 577. Pp. 21–
35.
(1) The nature of the work at issue favors fair use. The copied
lines of code are part of a “user interface” that provides a way for pro-
grammers to access prewritten computer code through the use of sim-
ple commands. As a result, this code is different from many other
types of code, such as the code that actually instructs the computer to
Cite as: 593 U. S. ____ (2021) 3
Syllabus
execute a task. As part of an interface, the copied lines are inherently
bound together with uncopyrightable ideas (the overall organization of
the API) and the creation of new creative expression (the code inde-
pendently written by Google). Unlike many other computer programs,
the value of the copied lines is in significant part derived from the in-
vestment of users (here computer programmers) who have learned the
API’s system. Given these differences, application of fair use here is
unlikely to undermine the general copyright protection that Congress
provided for computer programs. Pp. 21–24.
(2) The inquiry into the “the purpose and character” of the use
turns in large measure on whether the copying at issue was “trans-
formative,” i.e., whether it “adds something new, with a further pur-
pose or different character.” Campbell, 510 U. S., at 579. Google’s
limited copying of the API is a transformative use. Google copied only
what was needed to allow programmers to work in a different compu-
ting environment without discarding a portion of a familiar program-
ming language. Google’s purpose was to create a different task-related
system for a different computing environment (smartphones) and to
create a platform—the Android platform—that would help achieve and
popularize that objective. The record demonstrates numerous ways in
which reimplementing an interface can further the development of
computer programs. Google’s purpose was therefore consistent with
that creative progress that is the basic constitutional objective of cop-
yright itself. Pp. 24–28.
(3) Google copied approximately 11,500 lines of declaring code
from the API, which amounts to virtually all the declaring code needed
to call up hundreds of different tasks. Those 11,500 lines, however,
are only 0.4 percent of the entire API at issue, which consists of 2.86
million total lines. In considering “the amount and substantiality of
the portion used” in this case, the 11,500 lines of code should be viewed
as one small part of the considerably greater whole. As part of an in-
terface, the copied lines of code are inextricably bound to other lines of
code that are accessed by programmers. Google copied these lines not
because of their creativity or beauty but because they would allow pro-
grammers to bring their skills to a new smartphone computing envi-
ronment. The “substantiality” factor will generally weigh in favor of
fair use where, as here, the amount of copying was tethered to a valid,
and transformative, purpose. Pp. 28–30.
(4) The fourth statutory factor focuses upon the “effect” of the cop-
ying in the “market for or value of the copyrighted work.” §107(4).
Here the record showed that Google’s new smartphone platform is not
a market substitute for Java SE. The record also showed that Java
SE’s copyright holder would benefit from the reimplementation of its
interface into a different market. Finally, enforcing the copyright on
4 GOOGLE LLC v. ORACLE AMERICA, INC.
Syllabus
these facts risks causing creativity-related harms to the public. When
taken together, these considerations demonstrate that the fourth fac-
tor—market effects—also weighs in favor of fair use. Pp. 30–35.
(e) The fact that computer programs are primarily functional makes
it difficult to apply traditional copyright concepts in that technological
world. Applying the principles of the Court’s precedents and Congress’
codification of the fair use doctrine to the distinct copyrighted work
here, the Court concludes that Google’s copying of the API to reimple-
ment a user interface, taking only what was needed to allow users to
put their accrued talents to work in a new and transformative pro-
gram, constituted a fair use of that material as a matter of law. In
reaching this result, the Court does not overturn or modify its earlier
cases involving fair use. Pp. 35–36.
886 F. 3d 1179, reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. BAR-
RETT, J., took no part in the consideration or decision of the case.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–956
_________________
GOOGLE LLC, PETITIONER v.
ORACLE AMERICA, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[April 5, 2021]
JUSTICE BREYER delivered the opinion of the Court.
Oracle America, Inc., is the current owner of a copyright
in Java SE, a computer program that uses the popular Java
computer programming language. Google, without permis-
sion, has copied a portion of that program, a portion that
enables a programmer to call up prewritten software that,
together with the computer’s hardware, will carry out a
large number of specific tasks. The lower courts have con-
sidered (1) whether Java SE’s owner could copyright the
portion that Google copied, and (2) if so, whether Google’s
copying nonetheless constituted a “fair use” of that mate-
rial, thereby freeing Google from copyright liability. The
Federal Circuit held in Oracle’s favor (i.e., that the portion
is copyrightable and Google’s copying did not constitute a
“fair use”). In reviewing that decision, we assume, for ar-
gument’s sake, that the material was copyrightable. But
we hold that the copying here at issue nonetheless consti-
tuted a fair use. Hence, Google’s copying did not violate the
copyright law.
I
In 2005, Google acquired Android, Inc., a startup firm
2 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
that hoped to become involved in smartphone software.
Google sought, through Android, to develop a software plat-
form for mobile devices like smartphones. 886 F. 3d 1179,
1187 (CA Fed. 2018); App. 137–138, 242–243. A platform
provides the necessary infrastructure for computer pro-
grammers to develop new programs and applications. One
might think of a software platform as a kind of factory floor
where computer programmers (analogous to autoworkers,
designers, or manufacturers) might come, use sets of tools
found there, and create new applications for use in, say,
smartphones. (For visual explanations of “platforms” and
other somewhat specialized computer-related terms, you
might want to look at the material in Appendix A, infra.)
Google envisioned an Android platform that was free and
open, such that software developers could use the tools
found there free of charge. Its idea was that more and more
developers using its Android platform would develop ever
more Android-based applications, all of which would make
Google’s Android-based smartphones more attractive to ul-
timate consumers. Consumers would then buy and use ever
more of those phones. Oracle America, Inc. v. Google Inc.,
872 F. Supp. 2d 974, 978 (ND Cal. 2012); App. 111, 464.
That vision required attracting a sizeable number of skilled
programmers.
At that time, many software developers understood and
wrote programs using the Java programming language, a
language invented by Sun Microsystems (Oracle’s predeces-
sor). 872 F. Supp. 2d, at 975, 977. About six million pro-
grammers had spent considerable time learning, and then
using, the Java language. App. 228. Many of those pro-
grammers used Sun’s own popular Java SE platform to de-
velop new programs primarily for use in desktop and laptop
computers. Id., at 151–152, 200. That platform allowed
developers using the Java language to write programs that
were able to run on any desktop or laptop computer, regard-
less of the underlying hardware (i.e., the programs were in
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
large part “interoperable”). 872 F. Supp. 2d, at 977. In-
deed, one of Sun’s slogans was “ ‘write once, run anywhere.’ ”
886 F. 3d, at 1186.
Shortly after acquiring the Android firm, Google began
talks with Sun about the possibility of licensing the entire
Java platform for its new smartphone technology. Oracle,
872 F. Supp. 2d, at 978. But Google did not want to insist
that all programs written on the Android platform be in-
teroperable. 886 F. 3d, at 1187. As Android’s founder ex-
plained, “[t]he whole idea about [an] open source [platform]
is to have very, very few restrictions on what people can do
with it,” App. 659, and Sun’s interoperability policy would
have undermined that free and open business model. Ap-
parently, for reasons related to this disagreement, Google’s
negotiations with Sun broke down. Google then built its
own platform.
The record indicates that roughly 100 Google engineers
worked for more than three years to create Google’s An-
droid platform software. Id., at 45, 117, 212. In doing so,
Google tailored the Android platform to smartphone tech-
nology, which differs from desktop and laptop computers in
important ways. A smartphone, for instance, may run on a
more limited battery or take advantage of GPS technology.
Id., at 197–198. The Android platform offered program-
mers the ability to program for that environment. To build
the platform, Google wrote millions of lines of new code. Be-
cause Google wanted millions of programmers, familiar
with Java, to be able easily to work with its new Android
platform, it also copied roughly 11,500 lines of code from the
Java SE program. 886 F. 3d, at 1187. The copied lines of
code are 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 certain functions into their own programs, ra-
ther than write their own code to perform those functions
4 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
from scratch.” Oracle America, Inc. v. Google, Inc., 750 F.
3d 1339, 1349 (2014). Through an API, a programmer can
draw upon a vast library of prewritten code to carry out
complex tasks. For lay persons, including judges, juries,
and many others, some elaboration of this description may
prove useful.
Consider in more detail just what an API does. A com-
puter can perform thousands, perhaps millions, of different
tasks that a programmer may wish to use. These tasks
range from the most basic to the enormously complex. Ask
the computer, for example, to tell you which of two numbers
is the higher number or to sort one thousand numbers in
ascending order, and it will instantly give you the right an-
swer. An API divides and organizes the world of computing
tasks in a particular way. Programmers can then use the
API to select the particular task that they need for their
programs. In Sun’s API (which we refer to as the Sun Java
API), each individual task is known as a “method.” The API
groups somewhat similar methods into larger “classes,” and
groups somewhat similar classes into larger “packages.”
This method-class-package organizational structure is re-
ferred to as the Sun Java API’s “structure, sequence, and
organization,” or SSO.
For each task, there is computer code, known as “imple-
menting code,” that in effect tells the computer how to exe-
cute the particular task you have asked it to perform (such
as telling you, of two numbers, which is the higher). See
Oracle, 872 F. Supp. 2d, at 979–980. The implementing
code (which Google independently wrote) is not at issue
here. For a single task, the implementing code may be hun-
dreds of lines long. It would be difficult, perhaps impossi-
ble, for a programmer to create complex software programs
without drawing on prewritten task-implementing pro-
grams to execute discrete tasks.
But how do you as the programmer tell the computer
which of the implementing code programs it should choose,
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
i.e., which task it should carry out? You do so by entering
into your own program a command that corresponds to the
specific task and calls it up. Those commands, known as
“method calls,” help you carry out the task by choosing
those programs written in implementing code that will do
the trick, i.e., that will instruct the computer so that your
program will find the higher of two numbers. If a particular
computer might perform, say, a million different tasks, dif-
ferent method calls will tell the computer which of those
tasks to choose. Those familiar with the Java language al-
ready know countless method calls that allow them to in-
voke countless tasks.
And how does the method call (which a programmer
types) actually locate and invoke the particular implement-
ing code that it needs to instruct the computer how to carry
out a particular task? It does so through another type of
code, which the parties have labeled “declaring code.” De-
claring code is part of the API. For each task, the specific
command entered by the programmer matches up with spe-
cific declaring code inside the API. That declaring code pro-
vides both the name for each task and the location of each
task within the API’s overall organizational system (i.e., the
placement of a method within a particular class and the
placement of a class within a particular package). In this
sense, the declaring code and the method call form a link,
allowing the programmer to draw upon the thousands of
prewritten tasks, written in implementing code. See id., at
979–980. Without that declaring code, the method calls en-
tered by the programmer would not call up the implement-
ing code.
The declaring code therefore performs at least two im-
portant functions in the Sun Java API. The first, more ob-
vious, function is that the declaring code enables a set of
shortcuts for programmers. By connecting complex imple-
menting code with method calls, it allows a programmer to
6 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
pick out from the API’s task library a particular task with-
out having to learn anything more than a simple command.
For example, a programmer building a new application for
personal banking may wish to use various tasks to, say, cal-
culate a user’s balance or authenticate a password. To do
so, she need only learn the method calls associated with
those tasks. In this way, the declaring code’s shortcut func-
tion is similar to a gas pedal in a car that tells the car to
move faster or the QWERTY keyboard on a typewriter that
calls up a certain letter when you press a particular key. As
those analogies demonstrate, one can think of the declaring
code as part of an interface between human beings and a
machine.
The second, less obvious, function is to reflect the way in
which Java’s creators have divided the potential world of
different tasks into an actual world, i.e., precisely which set
of potentially millions of different tasks we want to have
our Java-based computer systems perform and how we
want those tasks arranged and grouped. In this sense, the
declaring code performs an organizational function. It de-
termines the structure of the task library that Java’s crea-
tors have decided to build. To understand this organiza-
tional system, think of the Dewey Decimal System that
categorizes books into an accessible system or a travel guide
that arranges a city’s attractions into different categories.
Language itself provides a rough analogy to the declaring
code’s organizational feature, for language itself divides
into sets of concepts a world that in certain respects other
languages might have divided differently. The developers
of Java, for example, decided to place a method called “draw
image” inside of a class called “graphics.”
Consider a comprehensive, albeit farfetched, analogy
that illustrates how the API is actually used by a program-
mer. Imagine that you can, via certain keystrokes, instruct
a robot to move to a particular file cabinet, to open a certain
drawer, and to pick out a specific recipe. With the proper
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
recipe in hand, the robot then moves to your kitchen and
gives it to a cook to prepare the dish. This example mirrors
the API’s task-related organizational system. Through
your simple command, the robot locates the right recipe and
hands it off to the cook. In the same way, typing in a
method call prompts the API to locate the correct imple-
menting code and hand it off to your computer. And im-
portantly, to select the dish that you want for your meal,
you do not need to know the recipe’s contents, just as a pro-
grammer using an API does not need to learn the imple-
menting code. In both situations, learning the simple com-
mand is enough.
Now let us consider the example that the District Court
used to explain the precise technology here. Id., at 980–
981. A programmer wishes, as part of her program, to de-
termine which of two integers is the larger. To do so in the
Java language, she will first write java.lang. Those words
(which we have put in bold type) refer to the “package” (or
by analogy to the file cabinet). She will then write Math.
That word refers to the “class” (or by analogy to the drawer).
She will then write max. That word refers to the “method”
(or by analogy to the recipe). She will then make two pa-
rentheses ( ). And, in between the parentheses she will
put two integers, say 4 and 6, that she wishes to compare.
The whole expression—the method call—will look like this:
“java.lang.Math.max(4, 6).” The use of this expression
will, by means of the API, call up a task-implementing pro-
gram that will determine the higher number.
In writing this program, the programmer will use the
very symbols we have placed in bold in the precise order we
have placed them. But the symbols by themselves do noth-
ing. She must also use software that connects the symbols
to the equivalent of file cabinets, drawers, and files. The
API is that software. It includes both the declaring code
that links each part of the method call to the particular
task-implementing program, and the implementing code
8 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
that actually carries it out. (For an illustration of this tech-
nology, see Appendix B, infra.)
Now we can return to the copying at issue in this case.
Google did not copy the task-implementing programs, or
implementing code, from the Sun Java API. It wrote its
own task-implementing programs, such as those that would
determine which of two integers is the greater or carry out
any other desired (normally far more complex) task. This
implementing code constitutes the vast majority of both the
Sun Java API and the API that Google created for Android.
App. 212. For most of the packages in its new API, Google
also wrote its own declaring code. For 37 packages, how-
ever, Google copied the declaring code from the Sun Java
API. Id., at 106–107. As just explained, that means that,
for those 37 packages, Google necessarily copied both the
names given to particular tasks and the grouping of those
tasks into classes and packages.
In doing so, Google copied that portion of the Sun Java
API that allowed programmers expert in the Java program-
ming language to use the “task calling” system that they
had already learned. As Google saw it, the 37 packages at
issue included those tasks that were likely to prove most
useful to programmers working on applications for mobile
devices. In fact, “three of these packages were . . . funda-
mental to being able to use the Java language at all.” Ora-
cle, 872 F. Supp. 2d, at 982. By using the same declaring
code for those packages, programmers using the Android
platform can rely on the method calls that they are already
familiar with to call up particular tasks (e.g., determining
which of two integers is the greater); but Google’s own im-
plementing programs carry out those tasks. Without that
copying, programmers would need to learn an entirely new
system to call up the same tasks.
We add that the Android platform has been successful.
Within five years of its release in 2007, Android-based de-
vices claimed a large share of the United States market.
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
Id., at 978. As of 2015, Android sales produced more than
$42 billion in revenue. 886 F. 3d, at 1187.
In 2010 Oracle Corporation bought Sun. Soon thereafter
Oracle brought this lawsuit in the United States District
Court for the Northern District of California.
II
The case has a complex and lengthy history. At the out-
set Oracle complained that Google’s use of the Sun Java
API violated both copyright and patent laws. For its copy-
right claim, Oracle alleged that Google infringed its copy-
right by copying, for 37 packages, both the literal declaring
code and the nonliteral organizational structure (or SSO) of
the API, i.e., the grouping of certain methods into classes
and certain classes into packages. For trial purposes the
District Court organized three proceedings. The first would
cover the copyright issues, the second would cover the pa-
tent issues, and the third would, if necessary, calculate
damages. Oracle, 872 F. Supp. 2d, at 975. The court also
determined that a judge should decide whether copyright
law could protect an API and that the jury should decide
whether Google’s use of Oracle’s API infringed its copyright
and, if so, whether a fair use defense nonetheless applied.
Ibid.
After six weeks of hearing evidence, the jury rejected Or-
acle’s patent claims (which have since dropped out of the
case). It also found a limited copyright infringement. It
deadlocked as to whether Google could successfully assert
a fair use defense. Id., at 976. The judge then decided that,
regardless, the API’s declaring code was not the kind of cre-
ation to which copyright law extended its protection. The
court noted that Google had written its own implementing
code, which constituted the vast majority of its API. It
wrote that “anyone is free under the Copyright Act to write
his or her own code to carry out exactly the same” tasks that
the Sun Java API picks out or specifies. Ibid. Google copied
10 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
only the declaring code and organizational structure that
was necessary for Java-trained programmers to activate fa-
miliar tasks (while, as we said, writing its own implement-
ing code). Hence the copied material, in the judge’s view,
was a “system or method of operation,” which copyright law
specifically states cannot be copyrighted. Id., at 977 (citing
17 U. S. C. §102(b)).
On appeal, the Federal Circuit reversed. That court held
that both the API’s declaring code and its organizational
structure could be copyrighted. Oracle, 750 F. 3d, at 1354.
It pointed out that Google could have written its own de-
claring code just as it wrote its own implementing code.
And because in principle Google might have created a whole
new system of dividing and labeling tasks that could be
called up by programmers, the declaring code (and the sys-
tem) that made up the Sun Java API was copyrightable.
Id., at 1361.
The Federal Circuit also rejected Oracle’s plea that it de-
cide whether Google had the right to use the Sun Java API
because doing so was a “fair use,” immune from copyright
liability. The Circuit wrote that fair use “both permits and
requires ‘courts to avoid rigid application of the copyright
statute when, on occasion, it would stifle the very creativity
which that law is designed to foster.’ ” Id., at 1372–1373.
But, it added, this “is not a case in which the record contains
sufficient factual findings upon which we could base a de
novo assessment of Google’s affirmative defense of fair use.”
Id., at 1377. And it remanded the case for another trial on
that question. Google petitioned this Court for a writ of cer-
tiorari, seeking review of the Federal Circuit’s copyrighta-
bility determination. 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 instructed the jury to an-
swer one question: Has Google “shown by a preponderance
of the evidence that its use in Android” of the declaring code
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
and organizational structure contained in the 37 Sun Java
API packages that it copied “constitutes a ‘fair use’ under
the Copyright Act?” App. 294. After three days of deliber-
ation the jury answered the question in the affirmative. Id.,
at 295. Google had shown fair use.
Oracle again appealed to the Federal Circuit. And the
Circuit again reversed the District Court. The Federal Cir-
cuit assumed all factual questions in Google’s favor. But, it
said, the question whether those facts constitute a “fair use”
is a question of law. 886 F. 3d, at 1193. Deciding that ques-
tion of law, the court held that Google’s use of the Sun Java
API was not a fair use. It wrote that “[t]here is nothing fair
about taking a copyrighted work verbatim and using it for
the same purpose and function as the original in a compet-
ing platform.” Id., at 1210. It remanded the case again,
this time for a trial on damages.
Google then filed a petition for certiorari in this Court. It
asked us to review the Federal Circuit’s determinations as
to both copyrightability and fair use. We granted its
petition.
III
A
Copyright and patents, the Constitution says, are to “pro-
mote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.” Art. I,
§8, cl. 8. Copyright statutes and case law have made clear
that copyright has practical objectives. It grants an author
an exclusive right to produce his work (sometimes for a
hundred years or more), not as a special reward, but in or-
der to encourage the production of works that others might
reproduce more cheaply. At the same time, copyright
has negative features. Protection can raise prices to con-
sumers. It can impose special costs, such as the cost of con-
tacting owners to obtain reproduction permission. And the
12 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
exclusive rights it awards can sometimes stand in the way
of others exercising their own creative powers. See gener-
ally Twentieth Century Music Corp. v. Aiken, 422 U. S. 151,
156 (1975); Mazer v. Stein, 347 U. S. 201, 219 (1954).
Macaulay once said that the principle of copyright is a
“tax on readers for the purpose of giving a bounty to writ-
ers.” T. Macaulay, Speeches on Copyright 25 (E. Miller ed.
1913). Congress, weighing advantages and disadvantages,
will determine the more specific nature of the tax, its
boundaries and conditions, the existence of exceptions and
exemptions, all by exercising its own constitutional power
to write a copyright statute.
Four provisions of the current Copyright Act are of par-
ticular relevance in this case. First, a definitional provision
sets forth three basic conditions for obtaining a copyright.
There must be a “wor[k] of authorship,” that work must be
“original,” and the work must be “fixed in any tangible me-
dium of expression.” 17 U. S. C. §102(a); see also Feist Pub-
lications, Inc. v. Rural Telephone Service Co., 499 U. S. 340,
345 (1991) (explaining that copyright requires some origi-
nal “creative spark” and therefore does not reach the facts
that a particular expression describes).
Second, the statute lists certain kinds of works that cop-
yright can protect. They include “literary,” “musical,” “dra-
matic,” “motion pictur[e ],” “architectural,” and certain
other works. §102(a). In 1980, Congress expanded the
reach of the Copyright Act to include computer programs.
And it defined “computer program” as “ ‘a set of statements
or instructions to be used directly or indirectly in a com-
puter in order to bring about a certain result.’ ” §10, 94 Stat.
3028 (codified at 17 U. S. C. §101).
Third, the statute sets forth limitations on the works that
can be copyrighted, including works that the definitional
provisions might otherwise include. It says, for example,
that copyright protection cannot be extended to “any idea,
procedure, process, system, method of operation, concept,
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principle, or discovery . . . .” §102(b). These limitations,
along with the need to “fix” a work in a “tangible medium of
expression,” have often led courts to say, in shorthand form,
that, unlike patents, which protect novel and useful ideas,
copyrights protect “expression” but not the “ideas” that lie
behind it. See Sheldon v. Metro-Goldwyn Pictures Corp., 81
F. 2d 49, 54 (CA2 1936) (Hand, J.); B. Kaplan, An Unhur-
ried View of Copyright 46–52 (1967).
Fourth, Congress, together with the courts, has imposed
limitations upon the scope of copyright protection even in
respect to works that are entitled to a copyright. For exam-
ple, the Copyright Act limits an author’s exclusive rights in
performances and displays, §110, or to performances of
sound recordings, §114. And directly relevant here, a copy-
right holder cannot prevent another person from making a
“fair use” of copyrighted material. §107.
We have described the “fair use” doctrine, originating in
the courts, as an “equitable rule of reason” that “permits
courts to avoid rigid application of the copyright statute
when, on occasion, it would stifle the very creativity which
that law is designed to foster.” Stewart v. Abend, 495 U. S.
207, 236 (1990) (internal quotation marks omitted). The
statutory provision that embodies the doctrine indicates,
rather than dictates, how courts should apply it. The pro-
vision says:
“[T]he fair use of a copyrighted work, . . . for purposes
such as criticism, comment, news reporting, teach-
ing . . . scholarship, or research, is not an infringement
of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to
be considered shall include—
“(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;
“(2) the nature of the copyrighted work;
14 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
“(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
“(4) the effect of the use upon the potential market
for or value of the copyrighted work.” §107.
In applying this provision, we, like other courts, have un-
derstood that the provision’s list of factors is not exhaustive
(note the words “include” and “including”), that the exam-
ples it sets forth do not exclude other examples (note the
words “such as”), and that some factors may prove more im-
portant in some 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 also Leval, Toward a Fair Use Standard, 103
Harv. L. Rev 1105, 1110 (1990) (Leval) (“The factors do not
represent a score card that promises victory to the winner
of the majority”). In a word, we have understood the provi-
sion to set forth general principles, the application of which
requires judicial balancing, depending upon relevant cir-
cumstances, including “significant changes in technology.”
Sony Corp. of America v. Universal City Studios, Inc., 464
U. S. 417, 430 (1984); see also Aiken, 422 U. S., at 156(“When technological change has rendered its literal terms
ambiguous, the Copyright Act must be construed in light of
its basic purpose”).
B
Google’s petition for certiorari poses two questions. The
first asks whether Java’s API is copyrightable. It asks us
to examine two of the statutory provisions just mentioned,
one that permits copyrighting computer programs and the
other that forbids copyrighting, e.g., “process[es],” “sys-
tem[s],” and “method[s] of operation.” Pet. for Cert. 12.
Google believes that the API’s declaring code and organiza-
tion fall into these latter categories and are expressly ex-
cluded from copyright protection. The second question asks
us to determine whether Google’s use of the API was a “fair
Cite as: 593 U. S. ____ (2021) 15
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use.” Google believes that it was.
A holding for Google on either question presented would
dispense with Oracle’s copyright claims. Given the rapidly
changing technological, economic, and business-related cir-
cumstances, we believe we should not answer more than is
necessary to resolve the parties’ dispute. We shall assume,
but purely for argument’s sake, that the entire Sun Java
API falls within the definition of that which can be copy-
righted. We shall ask instead whether Google’s use of part
of that API was a “fair use.” Unlike the Federal Circuit, we
conclude that it was.
IV
The language of §107, the “fair use” provision, reflects its
judge-made origins. It is similar to that used by Justice
Story in Folsom v. Marsh, 9 F. Cas. 342, 348 (No. 4,901) (CC
Mass. 1841). See Campbell, 510 U. S., at 576 (noting how
“Justice Story’s summary [of fair use considerations] is dis-
cernable” in §107). That background, as well as modern
courts’ use of the doctrine, makes clear that the concept is
flexible, that courts must apply it in light of the sometimes
conflicting aims of copyright law, and that its application
may well vary depending upon context. Thus, copyright’s
protection may be stronger where the copyrighted material
is fiction, not fact, where it consists of a motion picture ra-
ther than a news broadcast, or where it serves an artistic
rather than a utilitarian function. 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 §13.05[A]
[2][a] (2019) (hereinafter Nimmer on Copyright) (“[C]opy-
right protection is narrower, and the corresponding appli-
cation of the fair use defense greater, in the case of factual
works than in the case of works of fiction or fantasy”). Sim-
ilarly, courts have held that in some circumstances, say,
where copyrightable material is bound up with uncopy-
rightable material, copyright protection is “thin.” See Feist,
16 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
499 U. S., at 349 (noting that “the copyright in a factual
compilation is thin”); see also Experian Information Solu-
tions, Inc. v. Nationwide Marketing Servs. Inc., 893 F. 3d
1176, 1186 (CA9 2018) (“In the context of factual compila-
tions, . . . there can be no infringement unless the works are
virtually identical” (internal quotation marks omitted)).
Generically speaking, computer programs differ from
books, films, and many other “literary works” in that such
programs almost always serve functional purposes. These
and other differences have led at least some judges to com-
plain that “applying copyright law to computer programs is
like assembling a jigsaw puzzle whose pieces do not quite
fit.” Lotus Development Corp. v. Borland Int’l, Inc., 49 F.
3d 807, 820 (CA1 1995) (Boudin, J., concurring).
These differences also led Congress to think long and
hard about whether to grant computer programs copyright
protection. In 1974, Congress established a National Com-
mission on New Technological Uses of Copyrighted Works
(CONTU) to look into the matter. §§201–208, 88 Stat.
1873–1875. After several years of research, CONTU con-
cluded that the “availability of copyright protection for com-
puter programs is desirable.” Final Report 11 (July 31,
1978). At the same time, it recognized that computer pro-
grams had unique features. Mindful of not “unduly burden-
ing users of programs and the general public,” it wrote that
copyright “should not grant anyone more economic power
than is necessary to achieve the incentive to create.” Id., at
12. And it believed that copyright’s existing doctrines (e.g.,
fair use), applied by courts on a case-by-case basis, could
prevent holders from using copyright to stifle innovation.
Ibid. (“Relatively few changes in the Copyright Act of 1976
are required to attain these objectives”). Congress then
wrote computer program protection into the law. See §10,
94 Stat. 3028.
The upshot, in our view, is that fair use can play an im-
portant role in determining the lawful scope of a computer
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program copyright, such as the copyright at issue here. It
can help to distinguish among technologies. It can distin-
guish between expressive and functional features of com-
puter code where those features are mixed. It can focus on
the legitimate need to provide incentives to produce copy-
righted material while examining the extent to which yet
further protection creates unrelated or illegitimate harms
in other markets or to the development of other products.
In a word, it can carry out its basic purpose of providing a
context-based check that can help to keep a copyright mo-
nopoly within its lawful bounds. See H. R. Rep. No. 94–
1476, pp. 65–66 (1976) (explaining that courts are to “adapt
the doctrine [of fair use] to particular situations on a case-
by-case basis” and in light of “rapid 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
in the context of copying to preserve compatibility); Sony
Computer Entertainment, Inc. v. Connectix Corp., 203 F. 3d
596, 603–608 (CA9 2000) (applying fair use to intermediate
copying necessary to reverse engineer access to unprotected
functional elements within a program); Sega Enterprises
Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1521–1527 (CA9
1992) (holding that wholesale copying of copyrighted code
as a preliminary step to develop a competing product was a
fair use).
JUSTICE THOMAS’ thoughtful dissent offers a very differ-
ent view of how (and perhaps whether) fair use has any role
to play for computer programs. We are told that no attempt
to distinguish among computer code is tenable when con-
sidering “the nature of the work,” see post, at 10, even
though there are important distinctions in the ways that
programs are used and designed, post, at 18 (“The declaring
code is what attracted programmers”). We are told that no
reuse of code in a new program will ever have a valid “pur-
pose and character,” post, at 16, even though the reasons
for copying computer code may vary greatly and differ from
18 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
those applicable to other sorts of works, ibid. (accepting
that copying as part of “reverse engineer[ing] a system to
ensure compatibility” could be a valid purpose). And we are
told that our fair use analysis must prioritize certain factors
over others, post, at 9, n. 5, even though our case law in-
structs that fair use depends on the context, see Campbell,
510 U. S., at 577–578.
We do not understand Congress, however, to have
shielded computer programs from the ordinary application
of copyright’s limiting doctrines in this way. By defining
computer programs in §101, Congress chose to place this
subject matter within the copyright regime. Like other pro-
tected works, that means that the owners of computer pro-
grams enjoy the exclusive rights set forth in the Act, includ-
ing the right to “reproduce [a] copyrighted work” or to
“prepare derivative works.” 17 U. S. C. §106. But that also
means that exclusive rights in computer programs are lim-
ited like any other works. Just as fair use distinguishes
among books and films, which are indisputably subjects of
copyright, so too must it draw lines among computer pro-
grams. And just as fair use takes account of the market in
which scripts and paintings are bought and sold, so too
must it consider the realities of how technological works are
created and disseminated. We do not believe that an ap-
proach close to “all or nothing” would be faithful to the Cop-
yright Act’s overall design.
V
At the outset, Google argues that “fair use” is a question
for a jury to decide; here the jury decided the question in
Google’s favor; and we should limit our review to determin-
ing whether “substantial evidence” justified the jury’s deci-
sion. The Federal Circuit disagreed. It thought that the
“fair use” question was a mixed question of fact and law;
that reviewing courts should appropriately defer to the
jury’s findings of underlying facts; but that the ultimate
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Opinion of the Court
question whether those facts showed a “fair use” is a legal
question for judges to decide de novo.
We agree with the Federal Circuit’s answer to this ques-
tion. We have said, “[f]air use is a mixed question of law
and fact.” Harper & Row, 471 U. S., at 560. We have ex-
plained that a reviewing court should try to break such a
question into its separate factual and legal parts, reviewing
each according to the appropriate legal standard. But when
a question can be reduced no further, we have added that
“the standard of review for a mixed question all depends—
on whether answering it entails primarily legal or factual
work.” U. S. Bank N. A. v. Village at Lakeridge, LLC, 583
U. S. ___, ___(2018) (slip op., at 9).
In this case, the ultimate “fair use” question primarily in-
volves legal work. “Fair use” was originally a concept fash-
ioned by judges. Folsom, 9 F. Cas., at 348. Our cases still
provide legal interpretations of the fair use provision. And
those interpretations provide general guidance for future
cases. See, e.g., Campbell, 510 U. S., at 592–593 (describing
kinds of market harms that are not the concern of copy-
right); Harper & Row, 471 U. S., at 564 (“scope of fair use is
narrower with respect to unpublished works”); Sony, 464
U. S., at 451 (wholesale copying aimed at creating a market
substitute is presumptively unfair). This type of work is
legal work. U. S. Bank, 583 U. S., at ___ (slip op., at 8)
(“When applying the law involves developing auxiliary legal
principles for use in other cases[,] appellate courts should
typically review a decision de novo”).
Applying a legal “fair use” conclusion may, of course, in-
volve determination of subsidiary factual questions, such as
“whether there was harm to the actual or potential markets
for the copyrighted work” or “how much of the copyrighted
work was 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 suit
“the question of substantial similarity typically presents an
20 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
extremely close question of fact”). In this case the Federal
Circuit carefully applied the fact/law principles we set forth
in U. S. Bank, leaving factual determinations to the jury
and reviewing the ultimate question, a legal question, de
novo.
Next, Google argues that the Federal Circuit’s approach
violates the Seventh Amendment. The Amendment both
requires that “the right of trial by jury . . . be preserved”
and forbids courts to “re-examin[e ]” any “fact tried by a
jury.” U. S. Const., Amdt. 7; see also Gasperini v. Center for
Humanities, Inc., 518 U. S. 415, 432–433 (1996). The Reex-
amination Clause is no bar here, however, for, as we have
said, the ultimate question here is one of law, not fact. It
does not violate the Reexamination Clause for a court to de-
termine the controlling law in resolving a challenge to a
jury verdict, as happens any time a court resolves a motion
for judgment as a matter of law. See, e.g., Neely v. Martin
K. Eby Constr. Co., 386 U. S. 317, 322 (1967).
Nor is Google correct that “the right of trial by jury” in-
cludes the right to have a jury resolve a fair use defense.
That Clause is concerned with “the particular trial decision”
at issue. Markman v. Westview Instruments, Inc., 517 U. S.
370, 376 (1996). Even though it is possible to find pre-Rev-
olutionary English cases in which a judge sent related ques-
tions like fair abridgment to a jury, those questions were
significantly different from the “fair use” doctrine as courts
apply 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 resolve the narrow question whether a shortened
work could be considered a new work); Sayre v. Moore, 1
East 361, n., 102 Eng. Rep. 138, 139, n. (K. B. 1785) (dis-
cussing the jury’s role in resolving whether copying consti-
tuted infringement). As far as contemporary fair use is con-
cerned, we have described the doctrine as an “equitable,”
not a “legal,” doctrine. We have found no case suggesting
that application of U. S. Bank here would fail “to preserve
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Opinion of the Court
the substance of the common-law [jury trial] right as it ex-
isted in 1791.” Markman, 517 U. S., at 376.
VI
We turn now to the basic legal question before us: Was
Google’s copying of the Sun Java API, specifically its use of
the declaring code and organizational structure for 37 pack-
ages of that API, a “fair use.” In answering this question,
we shall consider the four factors set forth in the fair use
statute as we find them applicable to the kind of computer
programs before us. We have reproduced those four statu-
tory factors supra, at 13–14. For expository purposes, we
begin with the second.
A. “The Nature of the Copyrighted Work”
The Sun Java API is a “user interface.” It provides a way
through which users (here the programmers) can “manipu-
late and control” task-performing computer programs “via
a series of menu commands.” Lotus Development Corp., 49
F. 3d, at 809. The API reflects Sun’s division of possible
tasks that a computer might perform into a set of actual
tasks that certain kinds of computers actually will perform.
Sun decided, for example, that its API would call up a task
that compares one integer with another to see which is the
larger. Sun’s API (to our knowledge) will not call up the
task of determining which great Arabic scholar decided to
use Arabic numerals (rather than Roman numerals) to per-
form that “larger integer” task. No one claims that the de-
cisions about what counts as a task are themselves copy-
rightable—although one might argue about decisions as to
how to label and organize such tasks (e.g., the decision to
name a certain task “max” or to place it in a class called
“Math.” Cf. Baker v. Selden, 101 U. S. 99 (1880)).
As discussed above, supra, at 3–5, and in Appendix B, in-
fra, we can think of the technology as having three essential
parts. First, the API includes “implementing code,” which
22 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
actually instructs the computer on the steps to follow to
carry out each task. Google wrote its own programs (imple-
menting programs) that would perform each one of the
tasks that its API calls up.
Second, the Sun Java API associates a particular com-
mand, called a “method call,” with the calling up of each
task. The symbols java.lang., for example, are part of the
command that will call up the program (whether written by
Sun or, as here, by Google) that instructs the computer to
carry out the “larger number” operation. Oracle does not
here argue that the use of these commands by programmers
itself violates its copyrights.
Third, the Sun Java API contains computer code that will
associate the writing of a method call with particular
“places” in the computer that contain the needed imple-
menting code. This is the declaring code. The declaring
code both labels the particular tasks in the API and organ-
izes those tasks, or “methods,” into “packages” and “clas-
ses.” We have referred to this organization, by way of rough
analogy, as file cabinets, drawers, and files. Oracle does
claim that Google’s use of the Sun Java API’s declaring code
violates its copyrights.
The declaring code at issue here resembles other copy-
righted works in that it is part of a computer program. Con-
gress has specified that computer programs are subjects of
copyright. It differs, however, from many other kinds of
copyrightable computer code. It is inextricably bound to-
gether with a general system, the division of computing
tasks, that no one claims is a proper subject of copyright. It
is inextricably bound up with the idea of organizing tasks
into what we have called cabinets, drawers, and files, an
idea that is also not copyrightable. It is inextricably bound
up with the use of specific commands known to program-
mers, known here as method calls (such as
java.lang.Math.max, etc.), that Oracle does not here con-
test. And it is inextricably bound up with implementing
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Opinion of the Court
code, which is copyrightable but was not copied.
Moreover, the copied declaring code and the uncopied im-
plementing programs call for, and reflect, different kinds of
capabilities. A single implementation may walk a computer
through dozens of different steps. To write implementing
programs, witnesses told the jury, requires balancing such
considerations as how quickly a computer can execute a
task or the likely size of the computer’s memory. One wit-
ness described that creativity as “magic” practiced by an
API developer when he or she worries “about things like
power management” for devices that “run on a battery.”
App. 143; see also id., at 147, 204. This is the very creativ-
ity that was needed to develop the Android software for use
not in laptops or desktops but in the very different context
of smartphones.
The declaring code (inseparable from the programmer’s
method calls) embodies a different kind of creativity. Sun
Java’s creators, for example, tried to find declaring code
names that would prove intuitively easy to remember. Id.,
at 211. They wanted to attract programmers who would
learn the system, help to develop it further, and prove re-
luctant to use another. See post, at 10 (“Declaring code . . .
is user facing. It must be designed and organized in a way
that is intuitive and understandable to developers so that
they can invoke it”). Sun’s business strategy originally em-
phasized the importance of using the API to attract pro-
grammers. It sought to make the API “open” and “then . . .
compete on implementations.” App. 124–125. The testi-
mony at trial was replete with examples of witnesses draw-
ing this critical line between the user-centered declaratory
code and the innovative implementing code. Id., at 126–
127, 159–160, 163–164, 187, 190–191.
These features mean that, as part of a user interface, the
declaring code differs to some degree from the mine run of
computer programs. Like other computer programs, it is
functional in nature. But unlike many other programs, its
24 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
use is inherently bound together with uncopyrightable
ideas (general task division and organization) and new cre-
ative expression (Android’s implementing code). Unlike
many other programs, its value in significant part derives
from the value that those who do not hold copyrights,
namely, computer programmers, invest of their own time
and effort to learn the API’s system. And unlike many other
programs, its value lies in its efforts to encourage program-
mers to learn and to use that system so that they will use
(and continue to use) Sun-related implementing programs
that Google did not copy.
Although copyrights protect many different kinds of writ-
ing, Leval 1116, we have emphasized the need to
“recogni[ze] that some works are closer to the core of [copy-
right] than others,” Campbell, 510 U. S., at 586. In our
view, for the reasons just described, the declaring code is, if
copyrightable at all, further than are most computer pro-
grams (such as the implementing code) from the core of cop-
yright. That fact diminishes the fear, expressed by both the
dissent and the Federal Circuit, that application of “fair
use” here would seriously undermine the general copyright
protection that Congress provided for computer programs.
And it means that this factor, “the nature of the copyrighted
work,” points in the direction of fair use.
B. “The Purpose and Character of the Use”
In the context of fair use, we have considered whether the
copier’s use “adds something new, with a further purpose or
different character, altering” the copyrighted work “with
new expression, meaning or message.” Id., at 579. Com-
mentators have put the matter more broadly, asking
whether the copier’s use “fulfill[s] the objective of copyright
law to stimulate creativity for public illumination.” Leval
1111. In answering this question, we have used the word
“transformative” to describe a copying use that adds some-
thing new and important. Campbell, 510 U. S., at 579. An
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Opinion of the Court
“ ‘artistic painting’ ” might, for example, fall within the
scope of fair use even though it precisely replicates a copy-
righted “ ‘advertising logo to make a comment about con-
sumerism.’ ” 4 Nimmer on Copyright §13.05[A][1][b] (quot-
ing Netanel, Making Sense of Fair Use, 15 Lewis & Clark
L. Rev. 715, 746 (2011)). Or, as we held in Campbell, a par-
ody can be transformative because it comments on the orig-
inal or criticizes it, for “[p]arody needs to mimic an original
to make its point.” 510 U. S., at 580–581.
Google copied portions of the Sun Java API precisely, and
it did so in part for the same reason that Sun created those
portions, namely, to enable programmers to call up imple-
menting programs that would accomplish particular tasks.
But since virtually any unauthorized use of a copyrighted
computer program (say, for teaching or research) would do
the same, to stop here would severely limit the scope of fair
use in the functional context of computer programs.
Rather, in determining whether a use is “transformative,”
we must go further and examine the copying’s more specif-
ically described “purpose[s]” and “character.” 17 U. S. C.
§107(1).
Here Google’s use of the Sun Java API seeks to create
new products. It seeks to expand the use and usefulness of
Android-based smartphones. Its new product offers pro-
grammers a highly creative and innovative tool for a
smartphone environment. To the extent that Google used
parts of the Sun Java API to create a new platform that
could be readily used by programmers, its use was con-
sistent with that creative “progress” that is the basic con-
stitutional objective of copyright itself. Cf. Feist, 499 U. S.,
at 349–350 (“The primary objective of copyright is not to re-
ward the labor of authors, but ‘[t]o promote the Progress of
Science and useful Arts’ ” (quoting U. S. Const., Art. I, §8,
cl. 8)).
The jury heard that Google limited its use of the Sun Java
API to tasks and specific programming demands related to
26 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
Android. It copied the API (which Sun created for use in
desktop and laptop computers) only insofar as needed to in-
clude tasks that would be useful in smartphone programs.
App. 169–170. And it did so only insofar as needed to allow
programmers to call upon those tasks without discarding a
portion of a familiar programming language and learning a
new one. Id., at 139–140. To repeat, Google, through An-
droid, provided a new collection of tasks operating in a dis-
tinct and different computing environment. Those tasks
were carried out through the use of new implementing code
(that Google wrote) designed to operate within that new en-
vironment. Some of the amici refer to what Google did as
“reimplementation,” defined as the “building of a sys-
tem . . . that repurposes the same words and syntaxes” of
an existing system—in this case so that programmers who
had learned an existing system could put their basic skills
to use in a new one. Brief for R Street Institute et al. as
Amici Curiae 2.
The record here demonstrates the numerous ways in
which reimplementing an interface can further the devel-
opment of computer programs. The jury heard that shared
interfaces are necessary for different programs to speak to
each other. App. 125 (“We have to agree on the APIs so that
the application I write to show a movie runs on your de-
vice”). It heard that the reimplementation of interfaces is
necessary if programmers are to be able to use their ac-
quired skills. Id., at 191 (“If the API labels change, then
either the software wouldn’t continue to work anymore or
the developer . . . would have to learn a whole new language
to be able to use these API labels”). It heard that the reuse
of APIs is common in the industry. Id., at 115, 155, 663. It
heard that Sun itself had used pre-existing interfaces in
creating Java. Id., at 664. And it heard that Sun executives
thought that widespread use of the Java programming lan-
guage, including use on a smartphone platform, would ben-
efit the company. Id., at 130–133.
Cite as: 593 U. S. ____ (2021) 27
Opinion of the Court
Amici supporting Google have summarized these same
points—points that witnesses explained to the jury. See,
e.g., Brief for Copyright Scholars as Amici Curiae 25 (“[T]he
portions of Java SE that Google reimplemented may have
helped preserve consistency of use within the larger Java
developer community”); Brief for Microsoft Corporation as
Amicus Curiae 22 (“[A]llowing reasonable fair use of func-
tional code enables innovation that creates new opportuni-
ties for the whole market to grow”); Brief for 83 Computer
Scientists as Amici Curiae 20 (“Reimplementing interfaces
fueled widespread adoption of popular programming lan-
guages” (emphasis deleted)); Brief for R Street Institute et
al. as Amici Curiae 15–20 (describing Oracle’s reimplemen-
tation of other APIs); see also Brief for American Antitrust
Institute as Amicus Curiae 7 (“Copyright on largely func-
tional elements of software that [have] become an industry
standard gives a copyright holder anti-competitive power”).
These and related facts convince us that the “purpose and
character” of Google’s copying was transformative—to the
point where this factor too weighs in favor of fair use.
There are two other considerations that are often taken
up under the first factor: commerciality and good faith. The
text of §107 includes various noncommercial uses, such as
teaching and scholarship, as paradigmatic examples of
privileged copying. There is no doubt that a finding that
copying was not commercial in nature tips the scales in fa-
vor of fair use. But the inverse is not necessarily true, as
many common fair uses are indisputably commercial. For
instance, the text of §107 includes examples like “news re-
porting,” which is often done for commercial profit. So even
though Google’s use was a commercial endeavor—a fact no
party disputed, see 886 F. 3d, at 1197—that is not disposi-
tive of the first factor, particularly in light of the inherently
transformative role that the reimplementation played in
the new Android system.
As for bad faith, our decision in Campbell expressed some
28 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
skepticism about whether bad faith has any role in a fair
use analysis. 510 U. S., at 585, n. 18. We find this skepti-
cism justifiable, as “[c]opyright is not a privilege reserved
for the well-behaved.” Leval 1126. We have no occasion
here to say whether good faith is as a general matter a help-
ful inquiry. We simply note that given the strength of the
other factors pointing toward fair use and the jury finding
in Google’s favor on hotly contested evidence, that fact-
bound consideration is not determinative in this context.
C. “The Amount and Substantiality of the Portion Used”
If one considers the declaring code in isolation, the quan-
titative amount of what Google copied was large. Google
copied the declaring code for 37 packages of the Sun Java
API, totaling approximately 11,500 lines of code. Those
lines of code amount to virtually all the declaring code
needed to call up hundreds of different tasks. On the other
hand, if one considers the entire set of software material in
the Sun Java API, the quantitative amount copied was
small. The total set of Sun Java API computer code, includ-
ing implementing code, amounted to 2.86 million lines, of
which the copied 11,500 lines were only 0.4 percent. App.
212.
The question here is whether those 11,500 lines of code
should be viewed in isolation or as one part of the consider-
ably greater whole. We have said that even a small amount
of copying may fall outside of the scope of fair use where the
excerpt copied consists of the “ ‘heart’ ” of the original work’s
creative expression. Harper & Row, 471 U. S., at 564–565.
On the other hand, copying a larger amount of material can
fall within the scope of fair use where the material copied
captures little of the material’s creative expression or is
central to a copier’s valid purpose. See, e.g., Campbell, 510
U. S., at 588; New Era Publications Int’l, ApS v. Carol Pub-
lishing Group, 904 F. 2d 152, 158 (CA2 1990). If a defend-
ant had copied one sentence in a novel, that copying may
Cite as: 593 U. S. ____ (2021) 29
Opinion of the Court
well be insubstantial. But if that single sentence set forth
one of the world’s shortest short stories—“When he awoke,
the dinosaur was still there.”—the question looks much dif-
ferent, as the copied material constitutes a small part of the
novel but the entire short story. See A. Monterroso, El Di-
nosaurio, in Complete Works & Other Stories 42 (E. Gross-
man transl. 1995). (In the original Spanish, the story reads:
“Cuando despertó, el dinosaurio todavía estaba allí.”)
Several features of Google’s copying suggest that the bet-
ter way to look at the numbers is to take into account the
several million lines that Google did not copy. For one
thing, the Sun Java API is inseparably bound to those task-
implementing lines. Its purpose is to call them up. For an-
other, Google copied those lines not because of their crea-
tivity, their beauty, or even (in a sense) because of their
purpose. It copied them because programmers had already
learned to work with the Sun Java API’s system, and it
would have been difficult, perhaps prohibitively so, to at-
tract programmers to build its Android smartphone system
without them. Further, Google’s basic purpose was to cre-
ate a different task-related system for a different computing
environment (smartphones) and to create a platform—the
Android platform—that would help achieve and popularize
that objective. The “substantiality” factor will generally
weigh in favor of fair use where, as here, the amount of cop-
ying was tethered to a valid, and transformative, purpose.
Supra, at 25–26; see Campbell, 510 U. S., at 586–587 (ex-
plaining that the factor three “enquiry will harken back to
the first of the statutory factors, for . . . the extent of per-
missible copying varies with the purpose and character of
the use”).
We do not agree with the Federal Circuit’s conclusion
that Google could have achieved its Java-compatibility ob-
jective by copying only the 170 lines of code that are “neces-
sary to write in the Java language.” 886 F. 3d, at 1206. In
30 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
our view, that conclusion views Google’s legitimate objec-
tives too narrowly. Google’s basic objective was not simply
to make the Java programming language usable on its An-
droid systems. It was to permit programmers to make use
of their knowledge and experience using the Sun Java API
when they wrote new programs for smartphones with the
Android platform. In principle, Google might have created
its own, different system of declaring code. But the jury
could have found that its doing so would not have achieved
that basic objective. In a sense, the declaring code was the
key that it needed to unlock the programmers’ creative en-
ergies. And it needed those energies to create and to im-
prove its own innovative Android systems.
We consequently believe that this “substantiality” factor
weighs in favor of fair use.
D. Market Effects
The fourth statutory factor focuses upon the “effect” of the
copying in the “market for or value of the copyrighted
work.” 17 U. S. C. §107(4). Consideration of this factor, at
least where computer programs are at issue, can prove
more complex than at first it may seem. It can require a
court to consider the amount of money that the copyright
owner might lose. As we pointed out in Campbell, “verba-
tim copying of the original in its entirety for commercial
purposes” may well produce a market substitute for an au-
thor’s work. 510 U. S., at 591. Making a film of an author’s
book may similarly mean potential or presumed losses to
the copyright owner. Those losses normally conflict with
copyright’s basic objective: providing authors with exclusive
rights that will spur creative expression.
But a potential loss of revenue is not the whole story. We
here must consider not just the amount but also the source
of the loss. As we pointed out in Campbell, a “lethal parody,
like a scathing theatre review,” may “kil[l ] demand for the
original.” Id., at 591–592. Yet this kind of harm, even if
Cite as: 593 U. S. ____ (2021) 31
Opinion of the Court
directly translated into foregone dollars, is not “cognizable
under the Copyright Act.” Id., at 592.
Further, we must take into account the public benefits
the copying will likely produce. Are those benefits, for ex-
ample, related to copyright’s concern for the creative pro-
duction of new expression? Are they comparatively im-
portant, or unimportant, when compared with dollar
amounts likely lost (taking into account as well the nature
of the source of the loss)? Cf. MCA, INC. v. Wilson, 677
F. 2d 180, 183 (CA2 1981) (calling for a balancing of public
benefits and losses to copyright owner under this factor).
We do not say that these questions are always relevant
to the application of fair use, not even in the world of com-
puter programs. Nor do we say that these questions are the
only questions a court might ask. But we do find them rel-
evant here in helping to determine the likely market effects
of Google’s reimplementation.
As to the likely amount of loss, the jury could have found
that Android did not harm the actual or potential markets
for Java SE. And it could have found that Sun itself (now
Oracle) would not have been able to enter those markets
successfully whether Google did, or did not, copy a part of
its API. First, evidence at trial demonstrated that, regard-
less of Android’s smartphone technology, Sun was poorly
positioned to succeed in the mobile phone market. The jury
heard ample evidence that Java SE’s primary market was
laptops and desktops. App. 99, 200. It also heard that Sun’s
many efforts to move into the mobile phone market had
proved unsuccessful. Id., at 135, 235, 671. As far back as
2006, prior to Android’s release, Sun’s executives projected
declining revenue for mobile phones because of emerging
smartphone technology. Id., at 240. When Sun’s former
CEO was asked directly whether Sun’s failure to build a
smartphone was attributable to Google’s development of
Android, he answered that it was not. Id., at 650. Given
32 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
the evidence showing that Sun was beset by business chal-
lenges in developing a mobile phone product, the jury was
entitled to agree with that assessment.
Second, the jury was repeatedly told that devices using
Google’s Android platform were different in kind from those
that licensed Sun’s technology. For instance, witnesses ex-
plained that the broader industry distinguished between
smartphones and simpler “feature phones.” Id., at 237. As
to the specific devices that used Sun-created software, the
jury heard that one of these phones lacked a touchscreen,
id., at 359–360, while another did not have a QWERTY key-
board, id., at 672. For other mobile devices, the evidence
showed that simpler products, like the Kindle, used Java
software, id., at 396, while more advanced technology, like
the Kindle Fire, were built on the Android operating sys-
tem, id., at 206. This record evidence demonstrates that,
rather than just “repurposing [Sun’s] code from larger com-
puters to smaller computers,” post, at 16, Google’s Android
platform was part of a distinct (and more advanced) market
than Java software.
Looking to these important differences, Google’s eco-
nomic expert told the jury that Android was not a market
substitute for Java’s software. As he explained, “the two
products are on very different devices,” and the Android
platform, which offers “an entire mobile operating stack,” is
a “very different typ[e] of produc[t]” than Java SE, which is
“just an applications programming framework.” App. 256;
see also id., at 172–174. Taken together, the evidence
showed that Sun’s mobile phone business was declining,
while the market increasingly demanded a new form of
smartphone technology that Sun was never able to offer.
Finally, the jury also heard evidence that Sun foresaw a
benefit from the broader use of the Java programming lan-
guage in a new platform like Android, as it would further
expand the network of Java-trained programmers. Id., at
131–133; see also id., at 153 (“Once an API starts getting
Cite as: 593 U. S. ____ (2021) 33
Opinion of the Court
reimplemented, you know it has succeeded”). In other
words, the jury could have understood Android and Java SE
as operating in two distinct markets. And because there
are two markets at issue, programmers learning the Java
language to work in one market (smartphones) are then
able to bring those talents to the other market (laptops).
See 4 Nimmer on Copyright §13.05[A][4] (explaining that
factor four asks what the impact of “widespread conduct of
the sort engaged in by the defendant” would be on the mar-
ket for the present work).
Oracle presented evidence to the contrary. Indeed, the Fed-
eral Circuit held that the “market effects” factor militated
against fair use in part because Sun had tried to enter the
Android market. 886 F. 3d, at 1209 (Sun sought licensing
agreement with Google). But those licensing negotiations
concerned much more than 37 packages of declaring code,
covering topics like “the implementation of [Java’s] code”
and “branding and cooperation” between the firms. App.
245; see also 4 Nimmer on Copyright §13.05[A][4] (caution-
ing against the “danger of circularity posed” by considering
unrealized licensing opportunities because “it is a given in
every fair use case that plaintiff suffers a loss of a potential
market if that potential is defined as the theoretical market
for licensing the very use at bar”). In any event, the jury’s
fair use determination means that neither Sun’s effort to
obtain a license nor Oracle’s conflicting evidence can over-
come evidence indicating that, at a minimum, it would have
been difficult for Sun to enter the smartphone market, even
had Google not used portions of the Sun Java API.
On the other hand, Google’s copying helped Google make
a vast amount of money from its Android platform. And
enforcement of the Sun Java API copyright might give Or-
acle a significant share of these funds. It is important, how-
ever, to consider why and how Oracle might have become
entitled to this money. When a new interface, like an API
or a spreadsheet program, first comes on the market, it may
34 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
attract new users because of its expressive qualities, such
as a better visual screen or because of its superior function-
ality. As time passes, however, it may be valuable for a dif-
ferent reason, namely, because users, including program-
mers, are just used to it. They have already learned how to
work with it. See Lotus Development Corp., 49 F. 3d, at 821(Boudin, J., concurring).
The record here is filled with evidence that this factor ac-
counts for Google’s desire to use the Sun Java API. See,
e.g., App. 169–170, 213–214. This source of Android’s prof-
itability has much to do with third parties’ (say, program-
mers’) investment in Sun Java programs. It has corre-
spondingly less to do with Sun’s investment in creating the
Sun Java API. We have no reason to believe that the Copy-
right Act seeks to protect third parties’ investment in learn-
ing how to operate a created work. Cf. Campbell, 510 U. S.,
at 591–592 (discussing the need to identify those harms
that are “cognizable under the Copyright Act”).
Finally, given programmers’ investment in learning the
Sun Java API, to allow enforcement of Oracle’s copyright
here would risk harm to the public. Given the costs and
difficulties of producing alternative APIs with similar ap-
peal to programmers, allowing enforcement here would
make of the Sun Java API’s declaring code a lock limiting
the future creativity of new programs. Oracle alone would
hold the key. The result could well prove highly profitable
to Oracle (or other firms holding a copyright in computer
interfaces). But those profits could well flow from creative
improvements, new applications, and new uses developed
by users who have learned to work with that interface. To
that extent, the lock would interfere with, not further, cop-
yright’s basic creativity objectives. See Connectix Corp.,
203 F. 3d, at 607; see also Sega Enterprises, 977 F. 2d, at
1523–1524 (“An attempt to monopolize the market by mak-
ing it impossible for others to compete runs counter to the
statutory purpose of promoting creative expression”);
Cite as: 593 U. S. ____ (2021) 35
Opinion of the Court
Lexmark Int’l, 387 F. 3d, at 544 (noting that where a subse-
quent user copied a computer program to foster functional-
ity, it was not exploiting the programs “commercial value
as a copyrighted work” (emphasis in original)). After all,
“copyright supplies the economic incentive to [both] create
and disseminate ideas,” Harper & Row, 471 U. S., at 558,
and the reimplementation of a user interface allows crea-
tive new computer code to more easily enter the market.
The uncertain nature of Sun’s ability to compete in An-
droid’s market place, the sources of its lost revenue, and the
risk of creativity-related harms to the public, when taken
together, convince that this fourth factor—market effects—
also weighs in favor of fair use.
* * *
The fact that computer programs are primarily func-
tional makes it difficult to apply traditional copyright con-
cepts in that technological world. See Lotus Development
Corp., 49 F. 3d, at 820 (Boudin, J., concurring). In doing so
here, we have not changed the nature of those concepts. We
do not overturn or modify our earlier cases involving fair
use—cases, for example, that involve “knockoff ” products,
journalistic writings, and parodies. Rather, we here recog-
nize that application of a copyright doctrine such as fair use
has long proved a cooperative effort of Legislatures and
courts, and that Congress, in our view, intended that it so
continue. As such, we have looked to the principles set forth
in the fair use statute, §107, and set forth in our earlier
cases, and applied them to this different kind of copyrighted
work.
We reach the conclusion that in this case, where Google
reimplemented a user interface, taking only what was
needed to allow users to put their accrued talents to work
in a new and transformative program, Google’s copying of
the Sun Java API was a fair use of that material as a matter
of law. The Federal Circuit’s contrary judgment is reversed,
36 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion of the Court
and the case is remanded for further proceedings in con-
formity with this opinion.
It is so ordered.
JUSTICE BARRETT took no part in the consideration or de-
cision of this case.
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Opinion
Appendix of the of
to opinion Court
the Court
APPENDIXES
A
Computer System Diagram
Some readers might find it helpful to start with an expla-
nation of what a “software platform” is. Put simply, a soft-
ware platform collects all of the software tools that a pro-
grammer may need to build computer programs. The
Android platform, for instance, includes an “operating sys-
tem,” “core libraries,” and a “virtual machine,” among other
tools. App. 197–198.
The diagram below illustrates the general features of a
standard computer system, with the dotted line reflecting
the division between a computer’s hardware and its soft-
ware. (It is not intended to reflect any specific technology
at issue in this case.)
J. Garrido & R. Schlesinger, Principles of Modern Operat-
ing Systems 8 (2008) (“Figure 1.4. An External View of a
Computer System”).
38 GOOGLE LLC v. ORACLE AMERICA, INC.
Opinion
Appendix of the of
to opinion Court
the Court
B
Sun Java API Diagram
Programmer Inputs Sun Java API
Method Call Declaring Code
java.lang.Math.max Package java.lang
(4, 10)
public class Math
public static int max
(int x, int y)
Implementing
Code
{ if (x >y), return x
else return y }
This image depicts the connection between the three
parts of the Sun Java API technology at issue, using the
District Court’s example. Oracle, 872 F. Supp. 2d, at 980–
981. The programmer enters a method call to invoke a task
from within the API (the solid arrow). The precise symbols
in the method call correspond to a single task, which is lo-
cated within a particular class. That class is located within
a particular package. All of the lines of code that provide
that organization and name the methods, classes, and pack-
ages are “declaring code.” For each method, the declaring
code is associated with particular lines of implementing
code (the dotted arrow). It is that implementing code
Cite as: 593 U. S. ____ (2021) 39
Opinion
Appendix of the of
to opinion Court
the Court
(which Google wrote for its Android API) that actually in-
structs the computer in the programmer’s application.
Cite as: 593 U. S. ____ (2021) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–956
_________________
GOOGLE LLC, PETITIONER v.
ORACLE AMERICA, INC.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FEDERAL CIRCUIT
[April 5, 2021]
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dis-
senting.
Oracle spent years developing a programming library
that successfully attracted software developers, thus en-
hancing the value of Oracle’s products.1 Google sought a
license to use the library in Android, the operating system
it was developing for mobile phones. But when the compa-
nies could not agree on terms, Google simply copied verba-
tim 11,500 lines of code from the library. As a result, it
erased 97.5% of the value of Oracle’s partnership with Am-
azon, made tens of billions of dollars, and established its
position as the owner of the largest mobile operating system
in the world. Despite this, the majority holds that this cop-
ying was fair use.
The Court reaches this unlikely result in large part be-
cause it bypasses the antecedent question clearly before us:
Is the software code at issue here protected by the Copy-
right Act? The majority purports to assume, without decid-
ing, that the code is protected. But its fair-use analysis is
wholly inconsistent with the substantial protection Con-
gress gave to computer code. By skipping over the copy-
——————
1 A different company, Sun, created the library. But because Oracle
later purchased Sun, for simplicity I refer to both companies as Oracle.
2 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
rightability question, the majority disregards half the rele-
vant statutory text and distorts its fair-use analysis.
Properly considering that statutory text, Oracle’s code at is-
sue here is copyrightable, and Google’s use of that copy-
righted code was anything but fair.
I
In the 1990s, Oracle created a programming language
called Java. Like many programming languages, Java al-
lows developers to prewrite small subprograms called
“methods.” Methods form the building blocks of more com-
plex programs. This process is not unlike what legislatures
do with statutes. To save space and time, legislatures de-
fine terms and then use those definitions as a shorthand.
For example, the legal definition for “refugee” is more than
300 words long. 8 U. S. C. §1101(42). Rather than repeat
all those words every time they are relevant, the U. S. Code
encapsulates them all with a single term that it then inserts
into each relevant section. Java methods work similarly.
Once a method has been defined, a developer need only type
a few characters (the method name and relevant inputs) to
invoke everything contained in the subprogram. A pro-
grammer familiar with prewritten methods can string
many of them together to quickly develop complicated pro-
grams without having to write from scratch all the basic
subprograms.
To create Java methods, developers use two kinds of code.
The first, “declaring code,” names the method, defines what
information it can process, and defines what kind of data it
can output. It is like the defined term in a statute. The
second, “implementing code,” includes the step-by-step in-
structions that make those methods run.2 It is like the de-
tailed definition in a statute.
——————
2 Consider what the relevant text of a simple method—designed to re-
turn the largest of three integers—might look like:
Cite as: 593 U. S. ____ (2021) 3
THOMAS, J., dissenting
Oracle’s declaring code was central to its business model.
Oracle profited financially by encouraging developers to
create programs written in Java and then charging manu-
facturers a fee to embed in their devices the Java software
platform needed to run those programs. To this end, Oracle
created a work called Java 2 Platform, Standard Edition,
which included a highly organized library containing about
30,000 methods. Oracle gave developers free access to these
methods to encourage them to write programs for the Java
platform. In return, developers were required to make their
programs compatible with the Java platform on any device.
Developers were encouraged to make improvements to the
platform, but they were required to release beneficial mod-
ifications to the public. If a company wanted to customize
the platform and keep those customizations secret for busi-
ness purposes, it had to pay for a separate license.
By 2005, many companies were racing to develop operat-
ing systems for what would become modern smartphones.
Oracle’s strategy had successfully encouraged millions of
programmers to learn Java. As a result, Java software plat-
forms were in the vast majority of mobile phones. Google
wanted to attract those programmers to Android by includ-
ing in Android the declaring code with which they were now
familiar. But the founder of Android, Andrew Rubin, un-
derstood that the declaring code was copyrighted, so Google
sought a custom license from Oracle. At least four times
between 2005 and 2006, the two companies attempted to
——————
public static int MaxNum (int x, int y, int z) {
if (x >= y && x >= z) return x;
else if (y >= x && y >= z) return y;
else return z;
}
The first line is declaring code that defines the method, including what
inputs (integers x, y, and z) it can process and what it can output (an
integer). The remainder is implementing code that checks which of the
inputs is largest and returns the result. Once this code is written, a pro-
grammer could invoke it by typing, for example, “MaxNum (4, 12, 9).”
4 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
negotiate a license, but they were unsuccessful, in part be-
cause of “trust issues.” App. 657.
When those negotiations broke down, Google simply de-
cided to use Oracle’s code anyway. Instead of creating its
own declaring code—as Apple and Microsoft chose to do—
Google copied verbatim 11,500 lines of Oracle’s declaring
code and arranged that code exactly as Oracle had done. It
then advertised Android to device manufacturers as con-
taining “Core Java Libraries.” Id., at 600. Oracle predict-
ably responded by suing Google for copyright infringement.
The Federal Circuit ruled that Oracle’s declaring code is
copyrightable and that Google’s copying of it was not fair
use.
II
The Court wrongly sidesteps the principal question that
we were asked to answer: Is declaring code protected by
copyright? I would hold that it is.
Computer code occupies a unique space in intellectual
property. Copyright law generally protects works of au-
thorship. Patent law generally protects inventions or dis-
coveries. A library of code straddles these two categories.
It is highly functional like an invention; yet as a writing, it
is also a work of authorship. Faced with something that
could fit in either space, Congress chose copyright, and it
included declaring code in that protection.
The Copyright Act expressly protects computer code. It
recognizes that a “computer program” is protected by copy-
right. See 17 U. S. C. §§109(b), 117, 506(a). And it defines
“ ‘computer program’ ” as “a set of statements or instructions
to be used directly or indirectly in a computer in order to
bring about a certain result.” §101. That definition clearly
covers declaring code—sets of statements that indirectly
perform computer functions by triggering prewritten imple-
menting code.
Even without that express language, declaring code
Cite as: 593 U. S. ____ (2021) 5
THOMAS, J., dissenting
would satisfy the general test for copyrightability. “Copy-
right protection subsists . . . in original works of authorship
fixed in any tangible medium of expression.” §102(a).
“Works of authorship include . . . literary works,” which are
“works . . . expressed in words, numbers, or other verbal or
numerical symbols.” §§101, 102(a). And a work is “original”
if it is “independently created by the author” and “possesses
at least some minimal degree of creativity.” Feist Publica-
tions, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345
(1991). The lines of declaring code in the Java platform
readily satisfy this “extremely low” threshold. Ibid. First,
they are expressed in “words, numbers, or other verbal or
numerical symbols” and are thus works of authorship.
§101. Second, as Google concedes, the lines of declaring
code are original because Oracle could have created them
any number of ways.
Google contends that declaring code is a “method of oper-
ation” and thus excluded from protection by §102(b). That
subsection excludes from copyright protection “any idea,
procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied.” This provi-
sion codifies the “idea/expression dichotomy” that copyright
protection covers only the “the author’s expression” of an
idea, not the idea itself. Golan v. Holder, 565 U. S. 302, 328
(2012). A property right in the idea itself “can only be se-
cured, if it can be secured at all, by letters-patent.” Baker
v. Selden, 101 U. S. 99, 105 (1880). Thus, for example, a
“method of book-keeping” is not protected by copyright, but
the expression describing that accounting method is. Id., at
101–102. So too, a person who writes a book inventing the
idea of declaring code has a copyright protection in the ex-
pression in the book, but not in the idea of declaring code
itself. Google acknowledges that implementing code is pro-
tected by the Copyright Act, but it contends that declaring
6 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
code is much more functional and thus is a “method of op-
eration” outside the scope of protection.
That argument fails. As the majority correctly recog-
nizes, declaring code and implementing code are “inextrica-
bly bound” together. Ante, at 22. Declaring code defines
the scope of a set of implementing code and gives a pro-
grammer a way to use it by shortcut. Because declaring
code incorporates implementing code, it has no function on
its own. Implementing code is similar. Absent declaring
code, developers would have to write every program from
scratch, making complex programs prohibitively time
consuming to create. The functionality of both declaring
code and implementing code will thus typically rise and fall
together.
Google’s argument also cannot account for Congress’ de-
cision to define protected computer code as “a set of state-
ments or instructions to be used directly or indirectly in a
computer in order to bring about a certain result.” §101
(emphasis added). Hence, Congress rejected any categori-
cal distinction between declaring and implementing code.
Implementing code orders a computer operation directly.
Declaring code does so indirectly by incorporating imple-
menting code. When faced with general language barring
protection for “methods of operation” and specific language
protecting declaring code, the “ ‘specific governs the gen-
eral.’ ” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U. S. 639, 645 (2012).
This context makes clear that the phrase “method of op-
eration” in §102(b) does not remove protection from declar-
ing code simply because it is functional. That interpreta-
tion does not, however, render “method of operation”
meaningless. It is “given more precise content by the neigh-
boring words with which it is associated.” United States v.
Williams, 553 U. S. 285, 294 (2008). Other terms in the
same subsection such as “idea,” “principle,” and “concept”
suggest that “method of operation” covers the functions and
Cite as: 593 U. S. ____ (2021) 7
THOMAS, J., dissenting
ideas implemented by computer code—such as math func-
tions, accounting methods, or the idea of declaring code—
not the specific expression Oracle created. Oracle cannot
copyright the idea of using declaring code, but it can copy-
right the specific expression of that idea found in its library.
Google also contends that declaring code is not copyright-
able because the “merger doctrine” bars copyright protec-
tion when there is only one way to express an idea. That
argument fails for the same reasons Google’s §102(b) argu-
ment fails. Even if the doctrine exists, Google admits that
it is merely an application of §102(b). And, in any event,
there may have been only one way for Google to copy the
lines of declaring code, but there were innumerable ways
for Oracle to write them. Certainly, Apple and Microsoft
managed to create their own declaring code.
III
The Court inexplicably declines to address copyrightabil-
ity. Its sole stated reason is that “technological, economic,
and business-related circumstances” are “rapidly chang-
ing.” Ante, at 15. That, of course, has been a constant
where computers are concerned.
Rather than address this principal question, the Court
simply assumes that declaring code is protected and then
concludes that every fair-use factor favors Google. I agree
with the majority that Congress did not “shiel[d] computer
programs from the ordinary application” of fair use. Ante,
at 18. But the majority’s application of fair use is far from
ordinary. By skipping copyrightability, the majority gets
the methodology backward, causing the Court to sidestep a
key conclusion that ineluctably affects the fair-use analysis:
Congress rejected categorical distinctions between declar-
ing and implementing code. But the majority creates just
such a distinction. The result of this distorting analysis is
an opinion that makes it difficult to imagine any circum-
8 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
stance in which declaring code will remain protected by cop-
yright.
I agree with the majority that, under our precedent, fair
use is a mixed question of fact and law and that questions
of law predominate.3 Because the jury issued a finding of
fair use in favor of Google, we must construe all factual dis-
putes and inferences in Google’s favor and ask whether the
evidence was sufficient as a matter of law to support the
jury’s verdict. See Fed. Rule Civ. Proc. 50(b). But whether
a statutory fair-use factor favors one side or the other is a
legal question reviewed de novo. Congress has established
four statutory fair-use factors for courts to weigh.4 Three
decisively favor Oracle. And even assuming that the re-
maining factor favors Google, that factor, without more,
cannot legally establish fair use in this context.
The majority holds otherwise—concluding that every fac-
tor favors Google—by relying, in large part, on a distinction
it draws between declaring and implementing code, a dis-
tinction that the statute rejects. Tellingly, the majority
——————
3 I would not, however, definitively resolve Google’s argument that the
Seventh Amendment commits the question of fair use to a jury. I tend
to agree with the Court that fair use was not “itself necessarily a jury
issue” when the Constitution was ratified. Markman v. Westview Instru-
ments, Inc., 517 U. S. 370, 376–377 (1996). Google cites cases about “fair
abridgment,” but Congress has since made clear that copyright holders
have “exclusive rights” over any “abridgment.” 17 U. S. C. §§101, 106.
And in any event, judges often declined to refer these issues to juries.
See, e.g., Gyles v. Wilcox, 2 Atk. 141, 144, 26 Eng. Rep. 489, 490–491 (Ch.
1740); Folsom v. Marsh, 9 F. Cas. 342, 345–349 (No. 4,901) (CC Mass.
1841) (Story, J). Still, we should not so casually decide this question
when the parties barely addressed it.
4 The factors are: “(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes; (2) the nature of the copyrighted work; (3) the amount and sub-
stantiality of the portion used in relation to the copyrighted work as a
whole; and (4) the effect of the use upon the potential market for or value
of the copyrighted work.” §§107(1)–(4).
Cite as: 593 U. S. ____ (2021) 9
THOMAS, J., dissenting
evaluates the factors neither in sequential order nor in or-
der of importance (at least two factors are more important
under our precedent5). Instead, it starts with the second
factor: the nature of the copyrighted work. It proceeds in
this manner in order to create a distinction between declar-
ing and implementing code that renders the former less
worthy of protection than the latter. Because the majority’s
mistaken analysis rests so heavily on this factor, I begin
with it as well.
A. The Nature of the Copyrighted Work
This factor requires courts to assess the level of creativity
or functionality in the original work. It generally favors fair
use when a copyrighted work is more “informational or
functional” than “creative.” 4 M. Nimmer & D. Nimmer,
Copyright §13.05[A][2][a] (2019). Because code is predomi-
nantly functional, this factor will often favor copying when
the original work is computer code. But because Congress
determined that declaring and implementing code are cop-
yrightable, this factor alone cannot support a finding of fair
use.
The majority, however, uses this factor to create a dis-
tinction between declaring and implementing code that in
effect removes copyright protection from declaring code. It
concludes that, unlike implementing code, declaring code is
far “from the core of copyright” because it becomes valuable
only when third parties (computer programmers) value it
and because it is “inherently bound together with uncopy-
rightable ideas.” Ante, at 23–24.
——————
5 The fourth factor—the effect of Google’s copying on the potential mar-
ket for Oracle’s work—is “undoubtedly the single most important ele-
ment of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises,
471 U. S. 539, 566 (1985). The first factor—the purpose and character of
the use, including whether the use is commercial—is the second-most
important because it can prove dispositive. See id., at 550 (“[In general,]
the fair use doctrine has always precluded a use that ‘supersede[s] the
use of the original’ ”).
10 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
Congress, however, rejected this sort of categorical dis-
tinction that would make declaring code less worthy of pro-
tection. The Copyright Act protects code that operates “in
a computer in order to bring about a certain result” both
“directly” (implementing code) and “indirectly” (declaring
code). §101. And if anything, declaring code is closer to the
“core of copyright.” Ante, at 24. Developers cannot even see
implementing code. Oracle Am., Inc. v. Google Inc., 2016
WL 3181206, *4 (ND Cal., June 8, 2016); see also ante, at
23 (declaring code is “user-centered”). Implementing code
thus conveys no expression to developers. Declaring code,
in contrast, is user facing. It must be designed and orga-
nized in a way that is intuitive and understandable to de-
velopers so that they can invoke it.
Even setting those concerns aside, the majority’s distinc-
tion is untenable. True, declaring code is “inherently bound
together with uncopyrightable ideas.” Ante, at 23–24. Is
anything not? Books are inherently bound with uncopy-
rightable ideas—the use of chapters, having a plot, or in-
cluding dialogue or footnotes. This does not place books far
“from the core of copyright.” And implementing code, which
the majority concedes is copyrightable, is inherently bound
up with “the division of computing tasks” that cannot be
copyrighted.6 Ante, at 22. We have not discounted a work
of authorship simply because it is associated with noncopy-
rightable ideas. While ideas cannot be copyrighted, expres-
sions of those ideas can. Golan, 565 U. S., at 328.
Similarly, it makes no difference that the value of declar-
ing code depends on how much time third parties invest in
——————
6 The majority also belittles declaring code by suggesting it is simply a
way to organize implementing code. Ante, at 22–23. Not so. Declaring
code defines subprograms of implementing code, including by controlling
what inputs they can process. Similarly, the majority is wrong to suggest
that the purpose of declaring code is to connect pre-existing method calls
to implementing code. Ante, at 5. Declaring code creates the method
calls.
Cite as: 593 U. S. ____ (2021) 11
THOMAS, J., dissenting
learning it. Many other copyrighted works depend on the
same. A Broadway musical script needs actors and singers
to invest time learning and rehearsing it. But a theater
cannot copy a script—the rights to which are held by a
smaller theater—simply because it wants to entice actors to
switch theaters and because copying the script is more effi-
cient than requiring the actors to learn a new one.
What the majority says is true of declaring code is no less
true of implementing code. Declaring code is how program-
mers access prewritten implementing code. The value of
that implementing code thus is directly proportional to how
much programmers value the associated declaring code.
The majority correctly recognizes that declaring code “is in-
extricably bound up with implementing code,” ante, at 22–
23, but it overlooks the implications of its own conclusion.
Only after wrongly concluding that the nature of declar-
ing code makes that code generally unworthy of protection
does the Court move on to consider the other factors. This
opening mistake taints the Court’s entire analysis.
B. Market Effects
“[U]ndoubtedly the single most important element of fair
use” is the effect of Google’s copying “ ‘upon the potential
market for or value of [Oracle’s] copyrighted work.’ ” Har-
per & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S.
539, 566 (1985). As the Federal Circuit correctly deter-
mined, “evidence of actual and potential harm stemming
from Google’s copying was ‘overwhelming.’ ” 886 F. 3d 1179,
1209 (2018). By copying Oracle’s code to develop and re-
lease Android, Google ruined Oracle’s potential market in
at least two ways.
First, Google eliminated the reason manufacturers were
willing to pay to install the Java platform. Google’s busi-
ness model differed from Oracle’s. While Oracle earned rev-
enue by charging device manufacturers to install the Java
platform, Google obtained revenue primarily through ad
12 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
sales. Its strategy was to release Android to device manu-
facturers for free and then use Android as a vehicle to col-
lect data on consumers and deliver behavioral ads. With a
free product available that included much of Oracle’s code
(and thus with similar programming potential), device
manufacturers no longer saw much reason to pay to embed
the Java platform.
For example, before Google released Android, Amazon
paid for a license to embed the Java platform in Kindle de-
vices. But after Google released Android, Amazon used the
cost-free availability of Android to negotiate a 97.5% dis-
count on its license fee with Oracle. Evidence at trial simi-
larly showed that right after Google released Android, Sam-
sung’s contract with Oracle dropped from $40 million to
about $1 million. Google contests none of this except to say
that Amazon used a different Java platform, Java Micro
Edition instead of Java Standard Edition. That difference
is inconsequential because the former was simply a smaller
subset of the latter. Google copied code found in both plat-
forms. The majority does not dispute—or even mention—
this enormous harm.
Second, Google interfered with opportunities for Oracle
to license the Java platform to developers of smartphone
operating systems. Before Google copied Oracle’s code,
nearly every mobile phone on the market contained the
Java platform. Oracle’s code was extraordinarily valuable
to anybody who wanted to develop smartphones, which ex-
plains why Google tried no fewer than four times to license
it. The majority’s remark that Google also sought other li-
censes from Oracle, ante, at 33, does not change this central
fact. Both parties agreed that Oracle could enter Google’s
current market by licensing its declaring code. But by cop-
ying the code and releasing Android, Google eliminated Or-
acle’s opportunity to license its code for that use.
The majority writes off this harm by saying that the jury
could have found that Oracle might not have been able to
Cite as: 593 U. S. ____ (2021) 13
THOMAS, J., dissenting
enter the modern smartphone market successfully.7 Ante,
at 31–32. But whether Oracle could itself enter that market
is only half the picture. We look at not only the potential
market “that creators of original works would in general de-
velop” but also those potential markets the copyright holder
might “license others to develop.” Campbell v. Acuff-Rose
Music, Inc., 510 U. S. 569, 592 (1994). A book author need
not be able to personally convert a book into a film so long
as he can license someone else to do so. That Oracle could
have licensed its code for use in Android is undisputed.
Unable to seriously dispute that Google’s actions had a
disastrous effect on Oracle’s potential market, the majority
changes course and asserts that enforcing copyright protec-
tion could harm the public by giving Oracle the power to
“limi[t] the future creativity” of programs on Android. Ante,
at 34. But this case concerns only versions of Android re-
leased through November 2014. Order in No. 3:10–cv–3561
(ND Cal., Feb. 5, 2016), Doc. 1479, p. 2 (identifying versions
through Android Lollipop 5.0). Google has released six ma-
jor versions since then. Only about 7.7% of active Android
devices still run the versions at issue.8 The majority’s con-
cern about a lock-in effect might carry more weight if this
suit concerned versions of Android widely in use or that will
be widely in use. It makes little sense in a suit about ver-
sions that are close to obsolete.
The majority’s concern about a lock-in effect also is spec-
ulation belied by history. First, Oracle never had lock-in
——————
7 It also suggests that Oracle may have received some incidental bene-
fit from Android. Ante, at 32–33. But even assuming that is true, it
would go to the question of damages, not fair use. And there is no evi-
dence that any benefit came even close to offsetting Oracle’s enormous
loss.
8 Rahman, Android Version Distribution Statistics Will Now Only Be
Available in Android Studio (Apr. 10, 2020), https://www.xda-developers.
com/android-version-distribution-statistics-android-studio.
14 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
power. The majority (again) overlooks that Apple and Mi-
crosoft created mobile operating systems without using Or-
acle’s declaring code. Second, Oracle always made its de-
claring code freely available to programmers. There is little
reason to suspect Oracle might harm programmers by stop-
ping now. And third, the majority simply assumes that the
jury, in a future suit over current Android versions, would
give Oracle control of Android instead of just awarding
damages or perpetual royalties.
If the majority is going to speculate about what Oracle
might do, it at least should consider what Google has done.
The majority expresses concern that Oracle might abuse its
copyright protection (on outdated Android versions) and
“ ‘attempt to monopolize the market.’ ” Ante, at 34–35. But
it is Google that recently was fined a record $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 most
widely used mobile operating system in the world. And if
companies may now freely copy libraries of declaring code
whenever it is more convenient than writing their own, oth-
ers will likely hesitate to spend the resources Oracle did to
create intuitive, well-organized libraries that attract pro-
grammers and could compete with Android. If the majority
is worried about monopolization, it ought to consider
whether Google is the greater threat.
By copying Oracle’s work, Google decimated Oracle’s
market and created a mobile operating system now in over
2.5 billion actively used devices, earning tens of billions of
dollars every year. If these effects on Oracle’s potential
market favor Google, something is very wrong with our fair-
use analysis.
Cite as: 593 U. S. ____ (2021) 15
THOMAS, J., dissenting
C. The Purpose and Character of the Use
The second-most important factor—“the purpose and
character of the use, including whether such use is of a com-
mercial nature or is for nonprofit educational purposes,”
§107(1)—requires us to consider whether use was “commer-
cial” and whether it was “transformative.” Campbell, 510
U. S., at 578–579. Both aspects heavily favor Oracle.
Begin with the overwhelming commercial nature of
Google’s copying. In 2015 alone, the year before the fair-
use trial, Google earned $18 billion from Android. That
number has no doubt dramatically increased as Android
has grown to dominate the global market share.9 On this
scale, Google’s use of Oracle’s declaring code weighs heav-
ily—if not decisively—against fair use.
The majority attempts to dismiss this overwhelming com-
mercial use by noting that commercial use does “not neces-
sarily” weigh against fair use. Ante, at 27. True enough.
Commercial use sometimes can be overcome by use that is
sufficiently “transformative.” Campbell, 510 U. S., at 579.
But “we cannot ignore [Google’s] intended purpose of sup-
planting [Oracle’s] commercially valuable” platform with
its own. Harper, 471 U. S., at 562 (emphasis in original).
Even if we could, we have never found fair use for copying
that reaches into the tens of billions of dollars and wrecks
——————
9 The real value also may be much higher because Android indirectly
boosts other sources of revenue. For years Google has set its search en-
gine as the default engine on Android. Google can use that engine to
collect reams of data used to deliver behavioral advertisements to con-
sumers on desktops. Using control over Android to choose a default
search engine may seem trivial, but Google certainly does not think so.
According to a Goldman Sachs analysis, Google paid Apple $12 billion to
be the default search engine for Safari, Apple’s web browser, for just one
year. Leswing, Apple Makes Billions From Google’s Dominance in
Search—And It’s a Bigger Business Than iCloud or Apple Music, Busi-
ness Insider, Sept. 29, 2018. Google does not appear to have disputed
this figure.
16 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
the copyright holder’s market.
Regardless, Google fares no better on transformative use.
A court generally cannot find fair use unless the copier’s use
is transformative.10 A work is “transformative” if it “adds
something new, with a further purpose or different charac-
ter, altering the first with new expression, meaning, or mes-
sage.” Campbell, 510 U. S., at 579. This question is “guided
by the examples [of fair use] given in the preamble to §107.”
Id., at 578. Those examples include: “criticism, comment,
news reporting, teaching . . . , scholarship, or research.”
§107. Although these examples are not exclusive, they are
illustrative, and Google’s repurposing of Java code from
larger computers to smaller computers resembles none of
them. Google did not use Oracle’s code to teach or reverse
engineer a system to ensure compatibility. Instead, to
“avoid the drudgery in working up something fresh,” id., at
580, Google used the declaring code for the same exact pur-
pose Oracle did. As the Federal Circuit correctly deter-
mined, “[t]here is nothing fair about taking a copyrighted
work verbatim and using it for the same purpose and func-
tion as the original in a competing platform.” 886 F. 3d, at
1210.
The majority acknowledges that Google used the copied
declaring code “for the same reason” Oracle did. Ante, at
25. So, by turns, the majority transforms the definition of
“transformative.” Now, we are told, “transformative”
simply means—at least for computer code—a use that will
help others “create new products.” Ibid; accord, ante, at 26
(Google’s copying “can further the development of computer
programs”).
——————
10 Although “transformative use is not absolutely necessary” every
time, Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 579, and n. 11
(1994) (emphasis added), as a general matter “the fair use doctrine has
always precluded a use that ‘supersedes the use of the original,’ ” Harper,
471 U. S., at 550 (brackets omitted).
Cite as: 593 U. S. ____ (2021) 17
THOMAS, J., dissenting
That new definition eviscerates copyright. A movie stu-
dio that converts a book into a film without permission not
only creates a new product (the film) but enables others to
“create products”—film reviews, merchandise, YouTube
highlight reels, late night television interviews, and the
like. Nearly every computer program, once copied, can be
used to create new products. Surely the majority would not
say that an author can pirate the next version of Microsoft
Word simply because he can use it to create new manu-
scripts.11
Ultimately, the majority wrongly conflates transforma-
tive use with derivative use. To be transformative, a work
must do something fundamentally different from the origi-
nal. A work that simply serves the same purpose in a new
context—which the majority concedes is true here—is de-
rivative, not transformative. Congress made clear that Or-
acle holds “the exclusive rights . . . to prepare derivative
works.” §106(2). Rather than create a transformative prod-
uct, Google “profit[ed] from exploitation of the copyrighted
material without paying the customary price.” Harper, 471
U. S., at 562.
D. The Amount and Substantiality of the Portion Used
The statutory fair-use factors also instruct us to consider
“the amount and substantiality of the portion used in rela-
tion to the copyrighted work as a whole.” §107(3). In gen-
eral, the greater the amount of use, the more likely the cop-
ying is unfair. Ibid. But even if the copier takes only a
small amount, copying the “ ‘heart’ ” or “focal points” of a
work weighs against fair use, Harper, 471 U. S., at 565–
566, unless “ ‘no more was taken than necessary’ ” for the
copier to achieve transformative use, Campbell, 510 U. S.,
at 589.
——————
11 Because the majority’s reasoning would undermine copyright protec-
tion for so many products long understood to be protected, I understand
the majority’s holding as a good-for-declaring-code-only precedent.
18 GOOGLE LLC v. ORACLE AMERICA, INC.
THOMAS, J., dissenting
Google does not dispute the Federal Circuit’s conclusion
that it copied the heart or focal points of Oracle’s work. 886
F. 3d, at 1207. The declaring code is what attracted pro-
grammers to the Java platform and why Google was so in-
terested in that code. And Google copied that code “verba-
tim,” which weighs against fair use. Harper, 471 U. S., at
565. The majority does not disagree. Instead, it concludes
that Google took no more than necessary to create new
products. That analysis fails because Google’s use is not
transformative. Campbell, 510 U. S., at 586 (recognizing
that this fourth factor “will harken back to the [purpose-
and-character] statutory facto[r]”). This factor thus weighs
against Google.
Even if Google’s use were transformative, the majority is
wrong to conclude that Google copied only a small portion
of the original work. The majority points out that the
11,500 lines of declaring code—enough to fill about 600
pages in an appendix, Tr. of Oral Arg. 57—were just a frac-
tion of the code in the Java platform. But the proper de-
nominator is declaring code, not all code. A copied work is
quantitatively substantial if it could “serve as a market sub-
stitute for the original” work or “potentially licensed deriv-
atives” of that work. Campbell, 510 U. S., at 587. The de-
claring code is what attracted programmers. And it is what
made Android a “market substitute” for “potentially li-
censed derivatives” of Oracle’s Java platform. Google’s cop-
ying was both qualitatively and quantitatively substantial.
* * *
In sum, three of the four statutory fair-use factors weigh
decidedly against Google. The nature of the copyrighted
work—the sole factor possibly favoring Google—cannot by
itself support a determination of fair use because holding
Cite as: 593 U. S. ____ (2021) 19
THOMAS, J., dissenting
otherwise would improperly override Congress’ determina-
tion that declaring code is copyrightable.12
IV
The majority purports to save for another day the ques-
tion whether declaring code is copyrightable. The only ap-
parent reason for doing so is because the majority cannot
square its fundamentally flawed fair-use analysis with a
finding that declaring code is copyrightable. The majority
has used fair use to eviscerate Congress’ considered policy
judgment. I respectfully dissent.
——————
12 To be sure, these factors are not necessarily exclusive, but they are
“especially relevant,” Harper, 471 U. S., at 560; the majority identifies no
other relevant factors; and I can think of none that could overcome the
overwhelming weight of these key factors.