Today, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) issued a decision reversing the jury’s fair use verdict in the long running copyright infringement litigation between Oracle and Google. The CAFC found that Google’s replication of elements of the Java Application Programming Interface (“API”) in the Android API was not a fair use, as a matter of law. (A timeline of this eight year litigation, and a summary of the complex facts, is available here.) This is CAFC’s second ruling in this case; in 2014, the same CAFC panel held that the Java declaring code copied by Google was protectable expression. Today’s decision is as flawed as the 2014 ruling.
This post will focus on the CAFC’s central substantive error: its holding that Google’s use was not transformative. The CAFC correctly observed that in examining the first fair use factor, the purpose and character of the use, it must consider whether the new work is transformative or simply supplants the original. Citing the Supreme Court’s decision in Campbell v. Acuff-Rose, the CAFC noted that a use is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” The Supreme Court added that the question is “whether the new work merely supersedes the objects of the original creation…or instead adds something new.”
The CAFC found that Google’s use was not transformative largely because “the purpose of the API packages in Android is the same as the purpose of the packages in the Java platform.” The CAFC added that Google did not alter “the expressive content or message of the original work.” In the view of the CAFC, “the fact that Google created exact copies of the declaring code and SSO [structure, sequence and organization] and used those copies for the same purpose as the original material seriously weakens the claimed fair use.”
The problem with this analysis is that it means that virtually no use of a functional work such as a computer program could ever be transformative. The copied elements invariably would perform the same function in the new work; these elements were designed to perform a specific function. The categorically non-transformative nature of the use of functional works, in turn, makes a fair use finding less likely for a functional work than for a fictional work, contrary to Supreme Court precedent. The only use of the API that the CAFC suggests would have been a fair use is “if it had copied the APIs for some other purpose—such as teaching how to design an API….”
Ninth Circuit fair use decisions involving computer programs—e.g., Sega v. Accolade and Sony v. Connectix—indicate that a far more nuanced transformative use analysis is required when dealing with functional works such as software. Otherwise, copyright could restrain legitimate competition. The CAFC, however, relied on cases involving news programs, biographies, street art, and comedy routines.