Google LLC v. Oracle America, Inc.

(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.

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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.

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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

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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.

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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,

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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.

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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

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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.

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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.

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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.

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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

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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,

Cite as: 593 U. S. ____ (2021) 13

Opinion of the Court

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

Opinion of the Court

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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Opinion of the Court

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

Cite as: 593 U. S. ____ (2021) 19

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).

Sun 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.

Cite as: 593 U. S. ____ (2021) 37

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.