Google v. Oracle: Takeaways for Software Preservation, Cultural Heritage, and Fair Use Generally (2021 Reflection)

From a Software Preservation Network Post by Brandon Butler:

On April 5, 2021, the Supreme Court issued its opinion on the long-running litigation between Oracle and Google over the reuse of aspects of Oracle’s Java programming framework in Google’s Android mobile operating system. The majority opinion, written by Justice Breyer and joined by five of his fellow justices (Chief Justice Roberts, and Justices Kagan, Sotomayor, Kavanaugh, and Gorsuch), sided with Google, saying its use was lawful because it was protected by fair use. Justice Thomas wrote a dissent, joined only by Justice Alito, arguing that Google’s use was infringing. The newest Justice, Amy Coney Barrett, did not participate in the arguments or decision of the case as it predated her joining the Court. More background on the case can be found in my earlier blog post for SPN summarizing the oral arguments.

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Takeaways for Cultural Heritage Institutions and Fair Use Generally

While the clearest implications of the Oracle opinion are for software, the principles deployed in this case are certainly susceptible to an even more generalized reading. At the level of cultural heritage uses generally, the most important takeaways are:

• Fair use continues to play a crucial role in maintaining the central balance in the copyright system between the private incentive to create and distribute new works and the public interest in access and reuse of existing works. As cultural heritage institutions serve the public, they should understand and rely on their fair use rights.
• Core public interest activities like teaching and research are especially worthy of fair use protection, and fair use doctrines like transformative use should be read with an eye to ensuring these activities are not unduly impeded by copyright law.
• Specifically, when analyzing the purpose and character of a use for transformative use purposes, courts should avoid reductive or simplistic characterizations that result in an overly narrow scope of fair use or an overly broad scope of market power.

Oracle v. Google provides important fair use guidance for software preservation professionals, cultural heritage institutions, and all fair users. And luckily, it is very friendly, useful guidance that will serve software collections particularly well as they cope with the unique challenges posed by copyright in software. The pieces of the jigsaw puzzle of software copyright certainly fit together a little better today than they did before this opinion.

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