Jenner & Block

Client Alert: US Supreme Court Holds that Copying "Declaring Code" Is Fair Use

On April 5, 2021, the US Supreme Court decided the long-running and closely-watched case of Google v. Oracle, holding that it was a fair use for Google to copy the “declaring code” from the application program interface (API) of Oracle’s Java SE platform when implementing Java for Google’s Android operating system. The Court sidestepped the question of whether Oracle’s copyright protected such code at all, instead assuming that it did. The Court then conducted a fair use analysis that, depending on one’s perspective, was either an “ordinary application of copyright’s limiting doctrines,” or “wholly inconsistent with the substantial protection Congress gave to computer code.” Although the Court went to great lengths to cabin its holding to the very narrow type of code at issue, the decision is sure to feature prominently in fair use analyses in copyright infringement cases in the years to come.

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