Fair Use Goes Hand in Hand with Copyright Enforcement: Key Takeaways From the Google v. Oracle Supreme Court Decision

Justice Stephen Breyer’s majority opinion highlights the importance of Fair Use to benefit the public, which is the key purpose of copyright law. See below for key findings from the opinion, illustrated by quotes from Breyer’s opinion.

The purpose of copyright law is to encourage more innovation, not create a “special reward.”

Breyer: “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 order 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 consumers. It can impose special costs, such as the cost of contacting owners to obtain reproduction permission. And the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers . . . Macaulay once said that the principle of copyright is a ‘tax on readers for the purpose of giving a bounty to writers.’”

Fair use is needed to keep a copyright monopoly in check and promote creativity.

Breyer: “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…The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here. It can help to distinguish among technologies. It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted 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 monopoly within its lawful bounds.”

Copyright does not provide a blank check to a rightsholder, at the expense of the public’s benefit.

Breyer: “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 appeal 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, copyright’s basic creativity objectives.”

It doesn’t have to be non-commercial to still be a fair use.

Breyer: “There is no doubt that a finding that copying was not commercial in nature tips the scales in favor of fair use. But the inverse is not necessarily true, as many common fair uses are indisputably commercial…Further, we must take into account the public benefits the copying will likely produce. Are those benefits, for example, related to copyright’s concern for the creative production of new expression? Are they comparatively important, or unimportant, when compared with dollar amounts likely lost (taking into account as well the nature of the source of the loss)?”

Congress wrote the fair use doctrine to be flexible. 

Breyer: “In a word, we have understood the [fair use] provision to set forth general principles, the application of which requires judicial balancing, depending upon relevant circumstances, including ‘significant changes in technology.’”

Fair use is an important part of the Copyright Act, and it applies to technology just like it applies to the arts. 

Breyer: “Just as fair use distinguishes among books and films, which are indisputably subjects of copyright, so too must it draw lines among computer programs. 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 approach close to ‘all or nothing’ would be faithful to the Copyright Act’s overall design.”

Fair use should be decided by the judiciary. Congress and the Courts recognize the value of fair use in popular culture.

Breyer: “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 recognize 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.”

Google’s use of the Java APIs is a fair use. 

Breyer: “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.”