Google LLC v. Oracle America, Inc.

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 1
Pages 1–60
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 5, 2021
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 2020
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 platform,
Google copied roughly 11,500 lines of code from the Java SE program.
The copied lines are part of a tool called an Application Programming
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 re-
versed, 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-
1
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2 GOOGLE
LLC v. ORACLE AMERICA, INC.
Syllabus
crued talents to work in a new and transformative program, was a fair
use
of that material as a matter of law. Pp. 16–40.
(a) Copyright and patents, the Constitution says, serve to “promote
the Progress of Science and the 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 encourages the
production of works that others might cheaply reproduce by granting
the author an exclusive right to produce the work for a period of time.
Because 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. 16–20.
(b) The doctrine of “fair use” is fexible 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 impor-
tant 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. 20–23.
(c) The “fair use” question is a mixed question of fact and law. Re-
viewing courts should appropriately defer to the jury's fndings 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. 23–25.
(d) To determine whether Google's limited copying of the Java 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

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3
Syllabus
factors may prove more important in some contexts than in others.
C
ampbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 577. Pp. 26–40.
(1) The nature of the work favors fair use. The copied lines of code
are part of a “user interface” that provides a way for programmers to
access prewritten computer code through the use of simple commands.
As a result, this code is different from many other types of code, such
as the code that actually instructs the computer to 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 cre-
ation of new creative expression (the code independently written by
Google). Unlike many other computer programs, the value of the cop-
ied lines is in signifcant part derived from the investment 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. 26–29.
(2) The inquiry into the “the purpose and character” of the use
turns in large measure on whether the copying at issue was “transform-
ative,” i.e., whether it “adds something new, with a further purpose
or different character.” Campbell, 510 U. S., at 579. Google's limited
copying of the Java API is a transformative use. Google copied only
what was needed to allow programmers to work in a different comput-
ing environment without discarding a portion of a familiar programming
language. Google's purpose was to create a different task-related sys-
tem for a different computing environment (smartphones) and to create
a platform—the Android platform—that would help achieve and popu-
larize that objective. The record demonstrates numerous ways in
which reimplementing an interface can further the development of com-
puter programs. Google's purpose was therefore consistent with that
creative progress that is the basic constitutional objective of copyright
itself. Pp. 29–33.
(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 Java 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
interface, 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
programmers to bring their skills to a new smartphone computing envi-
ronment. The “substantiality” factor will generally weigh in favor of

4 GOOGLE
LLC v. ORACLE AMERICA, INC.
Syllabus
fair use where, as here, the amount of copying was tethered to a valid,
and
transformative, purpose. Pp. 33–35.
(4) The fourth statutory factor focuses upon the “effect” of the copy-
ing 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 beneft from the reimplementation of its
interface into a different market. Finally, enforcing the copyright on
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. 35–40.
(e) The fact that computer programs are primarily functional makes
it diffcult to apply traditional copyright concepts in that technological
world. Applying the principles of the Court's precedents and Congress'
codifcation 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 program,
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 in-
volving fair use. P. 40.
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. Tho-
mas, J., fled a dissenting opinion, in which Alito, J., joined, post, p. 43.
Barrett, J., took no part in the consideration or decision of the case.
Thomas C. Goldstein argued the cause for petitioner.
With him on the briefs were Sarah E. Harrington, Kevin K.
Russell, Daniel Woofter, Erica Oleszczuk Evans, Michael
S. Kwun, Bruce W. Baber, Catherine Lacavera, Lisa S.
Blatt, David M. Krinsky, Sarah M. Harris, Robert A. Van
Nest, Eugene M. Paige, and Reid P. Mullen.
E. Joshua Rosenkranz argued the cause for respondent.
With him on the brief were Annette L. Hurst, Lisa T. Simp-
son, Andrew D. Silverman, Matthew R. Shahabian, Jeremy
Peterman, Hannah Garden-Monheit, Dorian E. Daley,
Deborah K. Miller, Dale M. Cendali, and Joshua L.
Simmons.
Deputy Solicitor General Stewart argued the cause for
the United States as amicus curiae urging affrmance.
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5
Counsel
With him on the brief were Solicitor General Francisco, As-
sistan
t Attorney General Hunt, Matthew Guarnieri, Mark
R. Freeman, Daniel Tenny, Sonia M. Carson, Regan A.
Smith, Kevin R. Amer, Michael J. Walsh, Jr., and Megan
Heller.*
*Briefs of amici curiae urging reversal were fled for the American
Antitrust Institute by Randy M. Stutz; for the American Library Associa-
tion et al. by Brandon Butler; for the Auto Care Association et al. by Seth
D. Greenstein and Robert S. Schwartz; for the Center for Democracy and
Technology et al. by Joseph C. Gratz, Mark A. Lemley, and Lisa A. Hayes;
for the Computer & Communications Industry Association et al. by Jona-
than Band and Matt Schruers; for Copyright Scholars by Rebecca Tush-
net, pro se; for the Developers Alliance by James H. Hulme and Bruce
Gustafson; for the Electronic Frontier Foundation by Michael Barclay
and Corynne McSherry; for Empirical Legal Researchers by Elie I. Her-
man; for Engine Advocacy by Jef Pearlman; for International Business
Machines Corp. et al. by James W. Dabney, Richard M. Koehl, James R.
Klaiber, Stefanie M. Garibyan, Steven M. Purdy, and Jeffrey R. Kauf-
man; for Microsoft Corp. by Jeffrey A. Lamken and Michael G. Pattillo,
Jr.; for the Python Software Foundation et al. by Van Lindberg and Jill
Wheaton; for the Retail Litigation Center, Inc., by Jonathan S. Massey,
Deborah R. White, and Matthew M. Collette; for Rimini Street, Inc., by
Mark A. Perry, Jeremy M. Christiansen, Blaine H. Evanson, and Joseph
A. Gorman; for the R Street Institute et al. by Charles Duan and Mere-
dith F. Rose; for Small, Medium, and Open Source Technology Organiza-
tions by Jason M. Schultz and Christopher J. Morten; for Software and
System Developers and Engineers for U. S. Government Agencies by An-
drew P. Bridges; for the Software Freedom Law Center by Eben Moglen;
for Software Innovators et al. by J. Carl Cecere; for Glynn Lunney by
Mr. Lunney, pro se; for Peter S. Menell et al. by Mr. Menell, pro se; for
72 Intellectual Property Scholars by Catherine Crump and Pamela Sam-
uelson; and for 83 Computer Scientists by Phillip R. Malone.
Briefs of amici curiae urging affrmance were fled for the American
Conservative Union Foundation by David L. Applegate; for the Associa-
tion of American Publishers, Inc., by Maria A. Pallante; for the Center
for Medicine in the Public Interest by Edward A. Pennington; for The
Committee for Justice by Ryan J. Walsh and Curt Levey; for Consumers'
Research by Thomas R. McCarthy, William S. Consovoy, and Jeffrey M.
Harris; for the Copyright Alliance by Ian Heath Gershengorn and Devi
M. Rao; for the Digital Justice Foundation by Edward F. Cunningham;
for Dolby Laboratories, Inc., by Garrard R. Beeney; for Former Congress-
men by William A. Isaacson; for the Hudson Institute by Erik S. Jaffe and

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6 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
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 specifc tasks. The lower courts have con-
sidered (1) whether Java SE's owner could copyright the por-
tion that Google copied, and (2) if so, whether Google's copy-
ing nonetheless constituted a “fair use” of that material,
Gene C. Schaerr; for the Interdisciplinary Research Team on Programmer
Creativity by Ralph D. Clifford; for the Internet Accountability Project
by John Thorne; for The Mathworks, Inc., by David C. Frederick and
Jonathan T. Foot; for the News Media Alliance by Robert P. LoBue;
for the Recording Industry Association of America et al. by Frank P.
Scibilia and Donald S. Zakarin; for the SAS Institute, Inc., by Peter
K. Stris, Elizabeth Rogers Brannen, Dana Berkowitz, Douglas D. Geyser,
Jhaniel James, and John Stokes; for Synopsys, Inc., by William M.
Jay, Andrew Kim, and I. Neel Chatterjee; for Helienne Lindvall et al.
by Charles J. Sanders; for Scott McNealy by Celeste L. M. Koeleveld;
for Arthur R. Miller by Theodore Stevenson III; for Ralph Oman by Marc
R. Lewis; for Eugene H. Spafford et al. by Anne M. Cappella; for Joseph
M. Tucci et al. by David W. Shapiro; for 9 Professors of Intellectual Prop-
erty by Robert S. Friedman; for 10 Creators' Rights Organizations by
Nancy E. Wol ff; and for 25 Professors of Journalism et al. by Daniel J.
Brooks.
Briefs of amici curiae were fled for Alliance of U. S. Startups and In-
vestors for Jobs by Robert P. Taylor and David Boundy; for the American
Intellectual Property Law Association by Jennifer Librach Nall, Barbara
A. Fiacco, Jeffrey Han, Janice L. Ta, and Aaron M. Streett; for the Ameri-
can Legislative Exchange Council by Jonathon P. Hauenschild; for Civ
Pro Professors et al. by Jaclyn Cherry; for Copyright Thought Leaders
by Steven Tepp; for the Motion Picture Association, Inc., by Robert H.
Rotstein, Eleanor M. Lackman, and J. Matthew Williams; for the Robert
Rauschenberg Foundation et al. by John Paul Schnapper-Casteras and
Carolyn E. Shapiro; for USTelecom–The Broadband Association by Rus-
sell P. Hanser and Jennifer B. Tatel; and for Michael Risch by Mr. Risch,
pro se.

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7
Opinion of the Court
thereby freeing Google from copyright liability. The Fed-
era
l 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 argu-
ment's sake, that the material was copyrightable. But we
hold that the copying here at issue nonetheless constituted a
fair use. Hence, Google's copying did not violate the copy-
right law.
I
In 2005, Google acquired Android, Inc., a startup frm that
hoped to become involved in smartphone software. Google
sought, through Android, to develop a software platform 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 programmers to de-
velop new programs and applications. One might think of a
software platform as a kind of factory foor where computer
programmers (analogous to autoworkers, designers, or man-
ufacturers) 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 spe-
cialized 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 de-
velopers using its Android platform would develop ever more
Android-based applications, all of which would make Google's
Android-based smartphones more attractive to ultimate con-
sumers. 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
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8 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
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 de-
velopers 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
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 frm, 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 inter-
operable. 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 Android
platform software. Id., at 45, 117, 212. In doing so, Google
tailored the Android platform to smartphone technology,
which differs from desktop and laptop computers in impor-
tant 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 programmers the
ability to program for that environment. To build the plat-
form, Google wrote millions of lines of new code. Because
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9
Opinion of the Court
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,
rather than write their own code to perform those functions
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
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10 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
as telling you, of two numbers, which is the higher). See
O
racle, 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 hundreds
of lines long. It would be diffcult, perhaps impossible, for
a programmer to create complex software programs without
drawing on prewritten task-implementing programs to exe-
cute discrete tasks.
But how do you as the programmer tell the computer
which of the implementing code programs it should choose,
i. e., which task it should carry out? You do so by entering
into your own program a command that corresponds to the
specifc 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 pro-
gram will fnd 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 invoke
countless tasks.
And how does the method call (which a programmer types)
actually locate and invoke the particular implementing 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.” Declaring
code is part of the API. For each task, the specifc command
entered by the programmer matches up with specifc declar-
ing code inside the API. That declaring code provides 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 declar-
ing code and the method call form a link, allowing the pro-
grammer to draw upon the thousands of prewritten tasks,

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Opinion of the Court
written in implementing code. See id., at 979–980. With-
out
that declaring code, the method calls entered by the pro-
grammer would not call up the implementing code.
The declaring code therefore performs at least two impor-
tant functions in the Sun Java API. The frst, more obvious,
function is that the declaring code enables a set of shortcuts
for programmers. By connecting complex implementing
code with method calls, it allows a programmer to pick out
from the API's task library a particular task without having
to learn anything more than a simple command. For exam-
ple, a programmer building a new application for personal
banking may wish to use various tasks to, say, calculate 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 function 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 cer-
tain letter when you press a particular key. As those analo-
gies 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 refect the way in
which Java's creators have divided the potential world of dif-
ferent 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 declar-
ing code performs an organizational function. It determines
the structure of the task library that Java's creators have
decided to build. To understand this organizational 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 organiza-
tional 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, de-

12 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
cided to place a method called “draw image” inside of a class
ca
lled “graphics.”
Consider a comprehensive, albeit farfetched, analogy that
illustrates how the API is actually used by a programmer.
Imagine that you can, via certain keystrokes, instruct a
robot to move to a particular fle cabinet, to open a certain
drawer, and to pick out a specifc recipe. With the proper
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 impor-
tantly, to select the dish that you want for your meal, you do
not need to know the recipe's contents, just as a programmer
using an API does not need to learn the implementing code.
In both situations, learning the simple command 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 determine
which of two integers is the larger. To do so in the Java
lang uage, she w ill first wr ite java.l an g. Those words
(which we have put in bold type) refer to the “package” (or
by analogy to the fle 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
parentheses ( ). 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
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Opinion of the Court
placed them. But the symbols by themselves do nothing.
She
must also use software that connects the symbols to the
equivalent of fle cabinets, drawers, and fles. 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 that ac-
tually carries it out. (For an illustration of this technology,
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 im-
plementing code, from the Sun Java API. It wrote its own
task-implementing programs, such as those that would de-
termine 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-

14 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
plementing programs carry out those tasks. Without that
copy
ing, 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 fve years of its release in 2007, Android-based de-
vices claimed a large share of the United States market.
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 copyright
claim, Oracle alleged that Google infringed its copyright 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 frst would cover the
copyright issues, the second would cover the patent issues,
and the third would, if necessary, calculate damages. Ora-
cle, 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
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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 specifes. Ibid. Google
copied only the declaring code and organizational structure
that was necessary for Java-trained programmers to activate
familiar 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
specifcally 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 declar-
ing 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 system) 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 stife 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
suffcient factual fndings upon which we could base a de
novo assessment of Google's affrmative 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
certiorari, seeking review of the Federal Circuit's copyright-
ability determination. We denied the petition. Google,
Inc. v. Oracle America, Inc., 576 U. S. 1071 (2015).
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16 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
On remand the District Court, sitting with a jury, heard
e
vidence 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
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 delib-
eration the jury answered the question in the affrmative.
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 competing
platform.” Id., at 1210. It remanded the case again, this
time for a trial on damages.
Google then fled 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
order to encourage the production of works that others
might reproduce more cheaply. At the same time, copyright
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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
exclusive rights it awards can sometimes stand in the way of
others exercising their own creative powers. See generally
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 writers.”
T. Macaulay, Speeches on Copyright 25 (E. Miller ed. 1913).
Congress, weighing advantages and disadvantages, will de-
termine the more specifc 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 partic-
ular relevance in this case. First, a defnitional 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 “fxed 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 original
“creative spark” and therefore does not reach the facts that
a particular expression describes).
Second, the statute lists certain kinds of works that copy-
right 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
defned “computer program” as “ `a set of statements or in-
structions to be used directly or indirectly in a computer in
order to bring about a certain result.' ” § 10, 94 Stat. 3028
(codifed at 17 U. S. C. § 101).
Third, the statute sets forth limitations on the works that
can be copyrighted, including works that the defnitional pro-
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18 GOOGLE
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Opinion of the Court
visions might otherwise include. It says, for example, that
copyr
ight protection cannot be extended to “any idea, proce-
dure, process, system, method of operation, concept, princi-
ple, or discovery . . . .” § 102(b). These limitations, along
with the need to “fx” a work in a “tangible medium of ex-
pression,” 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 stife 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 provi-
sion says:
“[T]he fair use of a copyrighted work, . . . for purposes
such as criticism, comment, news reporting, teaching . . .
scholarship, or research, is not an infringement of copy-
right. In determining whether the use made of a work
in any particular case is a fair use the factors to be con-
sidered shall include—
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“(1) the purpose and character of the use, including
whether
such use is of a commercial nature or is for non-
proft educational purposes;
“(2) the nature of the copyrighted work;
“(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 circum-
stances, including “signifcant 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 tech-
nological 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
frst 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-

20 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
tem[s],” and “method[s] of operation.” Pet. for Cert. 12.
Goog
le 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
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 defnition of that which can be copyrighted.
We shall ask instead whether Google's use of part of that
API was a “fair use.” Unlike the Federal Circuit, we con-
clude that it was.
IV
The language of § 107, the “fair use” provision, refects 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
fexible, that courts must apply it in light of the sometimes
conficting aims of copyright law, and that its application may
well vary depending upon context. Thus, copyright's pro-
tection may be stronger where the copyrighted material is
fction, not fact, where it consists of a motion picture rather
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. Nim-
mer & D. Nimmer, Copyright § 13.05[A] [2][a] (2019) (herein-
after Nimmer on Copyright) (“[C]opyright protection is nar-
rower, and the corresponding application of the fair use
defense greater, in the case of factual works than in the case
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of works of fction or fantasy”). Similarly, courts have held
that
in some circumstances, say, where copyrightable mate-
rial is bound up with uncopyrightable material, copyright
protection is “thin.” See Feist, 499 U. S., at 349 (noting that
“the copyright in a factual compilation is thin”); see also
Experian Information Solutions, Inc. v. Nationwide Mar-
keting Servs. Inc., 893 F. 3d 1176, 1186 (CA9 2018) (“In the
context of factual compilations, . . . there can be no infringe-
ment unless the works are virtually identical” (internal quo-
tation marks omitted)).
Generically speaking, computer programs differ from
books, flms, 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 “[a]pplying copyright law to computer programs is
like assembling a jigsaw puzzle whose pieces do not quite
ft.” 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 pro-
tection. 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 concluded
that the “availability of copyright protection for computer
programs is desirable.” Final Report 11 (July 31, 1978).
At the same time, it recognized that computer programs had
unique features. Mindful of not “unduly burdening users of
programs and the general public,” it wrote that copyright
“should not grant anyone more economic power than is nec-
essary 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 hold-
ers from using copyright to stife innovation. Ibid. (“Rela-
tively 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.
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The upshot, in our view, is that fair use can play an impor-
t
ant role in determining the lawful scope of a computer pro-
gram copyright, such as the copyright at issue here. It can
help to distinguish among technologies. It can distinguish
between expressive and functional features of computer code
where those features are mixed. It can focus on the legit-
imate need to provide incentives to produce copyrighted
material while examining the extent to which yet further
protec ti on creates unrelated or i l leg iti mate har ms i n
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 pre-
liminary 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 consid-
ering “the nature of the work,” see post, at 51, even though
there are important distinctions in the ways that programs
are used and designed, post, at 59 (“The declaring code is
what attracted programmers”). We are told that no reuse
of code in a new program will ever have a valid “purpose and
character,” post, at 57, even though the reasons for copying
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computer code may vary greatly and differ from those appli-
cable
to other sorts of works, ibid. (accepting that copying
as part of “reverse engineer[ing] a system to ensure compati-
bility” could be a valid purpose). And we are told that our
fair use analysis must prioritize certain factors over others,
post, at 50, n. 5, even though our case law instructs 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 copy-
right's limiting doctrines in this way. By defning computer
programs in § 101, Congress chose to place this subject
matter within the copyright regime. Like other protected
works, that means that the owners of computer programs
enjoy the exclusive rights set forth in the Act, including the
right to “reproduce [a] copyrighted work” or to “prepare de-
rivative works.” 17 U. S. C. § 106. But that also means
that exclusive rights in computer programs are limited like
any other works. Just as fair use distinguishes among books
and flms, which are indisputably subjects of copyright, so
too must it draw lines among computer programs. And just
as fair use takes account of the market in which scripts and
paintings are bought and sold, so too must it consider the
realities of how technological works are created and dissemi-
nated. We do not believe that an approach close to “all or
nothing ” would be faithful to the Copyright 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” justifed 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
fndings of underlying facts; but that the ultimate question

24 GOOGLE
LLC v. ORACLE AMERICA, INC.
Opinion of the Court
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. 387, 396 (2018).
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 copyright);
Harper & Row, 471 U. S., at 564 (“scope of fair use is nar-
rower with respect to unpublished works”); Sony, 464 U. S.,
at 451 (wholesale copying aimed at creating a market substi-
tute is presumptively unfair). This type of work is legal
work. U. S. Bank, 583 U. S., at 396 (“[W]hen applying the
law involves developing auxiliary legal principles of use in
other cases[,] appellate courts should typically review a deci-
sion 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
extremely close question of fact”). In this case the Federal
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Circuit carefully applied the fact/ law principles we set forth
i
n 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
Reexamination 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
determine 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 fnd pre-
Revolutionary English cases in which a judge sent related
questions like fair abridgment to a jury, those questions were
signifcantly 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) (discussing the
jury's role in resolving whether copying constituted infringe-
ment). As far as contemporary fair use is concerned, we
have described the doctrine as an “equitable,” not a “legal,”
doctrine. We have found no case suggesting that applica-
tion of U. S. Bank here would fail “to preserve the substance
of the common-law [ jury trial] right as it existed in 1791.”
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26 GOOGLE
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VI
W
e turn now to the basic legal question before us: Was
Google's copying of the Sun Java API, specifcally 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 fnd them applicable to the kind of computer
programs before us. We have reproduced those four statu-
tory factors supra, at 18–19. 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
“manipulate and control” task-performing computer pro-
grams “via a series of menu commands.” Lotus Develop-
ment Corp., 49 F. 3d, at 809. The API refects 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 numer-
als) to perform that “larger integer” task. No one claims
that the decisions about what counts as a task are themselves
copyrightable—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 9–11, and in Appendix B,
infra, we can think of the technology as having three essen-
tial parts. First, the API includes “implementing code,”
which actually instructs the computer on the steps to follow
to carry out each task. Google wrote its own programs (im-
plementing programs) that would perform each one of the
tasks that its API calls up.
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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 com-
mand 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 implement-
ing code. This is the declaring code. The declaring code
both labels the particular tasks in the API and organizes
those tasks, or “methods,” into “packages” and “classes.”
We have referred to this organization, by way of rough
analogy, as fle cabinets, drawers, and fles. 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.
Congress has specifed 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 fles, an idea
that is also not copyrightable. It is inextricably bound up
with the use of specifc commands known to programmers,
known here as method calls (such as java.lang.Math.max,
etc.), that Oracle does not here contest. And it is inextrica-
bly bound up with implementing code, which is copyrightable
but was not copied.
Moreover, the copied declaring code and the uncopied im-
plementing programs call for, and refect, different kinds of
capabilities. A single implementation may walk a computer
through dozens of different steps. To write implementing
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programs, witnesses told the jury, requires balancing such
considerati
ons as how quickly a computer can execute a task
or the likely size of the computer's memory. One witness
described that creativity as “magic” practiced by an API de-
veloper 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 creativity 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 fnd 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 reluc-
tant to use another. See post, at 51 (“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
use is inherently bound together with uncopyrightable ideas
(general task division and organization) and new creative ex-
pression (Android's implementing code). Unlike many other
programs, its value in signifcant part derives from the value
that those who do not hold copyrights, namely, computer pro-
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grammers, 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 programmers 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 [copyright] 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 programs (such as the
implementing code) from the core of copyright. That fact
diminishes the fear, expressed by both the dissent and the
Federal Circuit, that application of “fair use” here would se-
riously 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 “fulfll[s] the objective of copyright law to
stimulate creativity for public illumination.” Leval 1111.
In answering this question, we have used the word “trans-
formative” to describe a copying use that adds something
new and important. Campbell, 510 U. S., at 579. An “ `ar-
tistic painting ' ” might, for example, fall within the scope of
fair use even though it precisely replicates a copyrighted
“ `advertising logo to make a comment about consumerism.' ”
4 Nimmer on Copyright § 13.05[A][1][b] (quoting Netanel,
Making Sense of Fair Use, 15 Lewis & Clark L. Rev. 715,
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30 GOOGLE
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Opinion of the Court
746 (2011)). Or, as we held in Campbell, a parody can be
transfor
mative because it comments on the original or criti-
cizes 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 spe-
cifcally 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 smart-
phone 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 consistent with
that creative “progress” that is the basic constitutional objec-
tive of copyright itself. Cf. Feist, 499 U. S., at 349–350 (“The
primary objective of copyright is not to reward 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 specifc programming demands related to
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
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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,” defned as the “building of a system . . .
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 develop-
ment 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
device”). It heard that the reimplementation of interfaces is
necessary if programmers are to be able to use their acquired
skills. Id., at 191 (“If the API labels change, then either the
software wouldn't continue to work anymore or the devel-
oper . . . 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 cre-
ating 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 bene-
ft the company. Id., at 130–133.
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-
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Opinion of the Court
tional code enables innovation that creates new opportunities
for
the whole market to grow”); Brief for 83 Computer Scien-
tists as Amici Curiae 20 (“Reimplementing interfaces fueled
widespread adoption of popular programming languages”
(emphasis deleted)); Brief for R Street Institute et al. as
Amici Curiae 15–20 (describing Oracle's reimplementation
of other APIs); see also Brief for American Antitrust Insti-
tute as Amicus Curiae 7 (“Copyright on largely functional
elements of software that [have] become an industry stand-
ard gives a copyright holder anticompetitive 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 frst factor: commerciality and good faith. The
text of § 107 includes various noncommercial uses, such as
teaching and scholarship, as paradigmatic examples of privi-
leged copying. There is no doubt that a fnding that copying
was not commercial in nature tips the scales in favor of fair
use. But the inverse is not necessarily true, as many com-
mon fair uses are indisputably commercial. For instance,
the text of § 107 includes examples like “news reporting,”
which is often done for commercial proft. So even though
Google's use was a commercial endeavor—a fact no party
disputed, see 886 F. 3d, at 1197—that is not dispositive of the
frst factor, particularly in light of the inherently transforma-
tive role that the reimplementation played in the new An-
droid system.
As for bad faith, our decision in Campbell expressed some
skepticism about whether bad faith has any role in a fair use
analysis. 510 U. S., at 585, n. 18. We fnd this skepticism
justifable, 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 helpful in-
quiry. We simply note that given the strength of the other

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Opinion of the Court
factors pointing toward fair use and the jury fnding in
Goog
le's favor on hotly contested evidence, that factbound
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 quanti-
tative amount of what Google copied was large. Google cop-
ied 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, including 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 cen-
tral 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 defendant
had copied one sentence in a novel, that copying may well be
insubstantial. But if that single sentence set forth one of
the world's shortest short stories—“When he awoke, the di-
nosaur was still there.”—the question looks much different,
as the copied material constitutes a small part of the novel
but the entire short story. See A. Monterroso, El Dino-
saurio, in Complete Works & Other Stories 42 (E. Grossman
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34 GOOGLE
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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
another, Google copied those lines not because of their cre-
ativity, 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 diffcult, perhaps prohibitively so, to attract
programmers to build its Android smartphone system with-
out them. Further, Google's basic purpose was to create a
different task-related system for a different computing envi-
ronment (smartphones) and to create a platform—the An-
droid 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 copying was
tethered to a valid, and transformative, purpose. Supra, at
30–31; see Campbell, 510 U. S., at 586–587 (explaining that
the factor three “enquiry will harken back to the frst of the
statutory factors, for . . . the extent of permissible 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 objective
by copying only the 170 lines of code that are “necessary to
write in the Java language.” 886 F. 3d, at 1206. In our
view, that conclusion views Google's legitimate objectives too
narrowly. Google's basic objective was not simply to make
the Java programming language usable on its Android sys-
tems. 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,
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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 energies.
And it needed those energies to create and to improve 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 frst 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, “verbatim copy-
ing of the original in its entirety for commercial purposes”
may well produce a market substitute for an author's work.
510 U. S., at 591. Making a flm of an author's book may
similarly mean potential or presumed losses to the copyright
owner. Those losses normally confict 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
directly translated into foregone dollars, is not “cognizable
under the Copyright Act.” Id., at 592.
Further, we must take into account the public benefts the
copying will likely produce. Are those benefts, for exam-
ple, related to copyright's concern for the creative production
of new expression? Are they comparatively important, or
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36 GOOGLE
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unimportant, when compared with dollar amounts likely lost
(t
aking 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 benefts 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 computer
programs. Nor do we say that these questions are the only
questions a court might ask. But we do fnd them relevant
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 suc-
cessfully whether Google did, or did not, copy a part of its
API. First, evidence at trial demonstrated that, regardless
of Android's smartphone technology, Sun was poorly posi-
tioned 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 pro-
jected declining revenue for mobile phones because of emerg-
ing smartphone technology. Id., at 240. When Sun's for-
mer 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
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-
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plained that the broader industry distinguished between
smar
tphones and simpler “feature phones.” Id., at 237. As
to the specifc 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 system,
id., at 206. This record evidence demonstrates that, rather
than just “repurposing [Sun's] code from larger computers to
smaller computers,” post, at 57, Google's Android platform
was part of a distinct (and more advanced) market than
Java software.
Looking to these important differences, Google's economic
expert told the jury that Android was not a market substi-
tute for Java's software. As he explained, “the two prod-
ucts are on very different devices,” and the Android plat-
form, 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
beneft 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
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

38 GOOGLE
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Opinion of the Court
to bring those talents to the other market (laptops). See 4
Ni
mmer 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 market for
the present work).
Oracle presented evidence to the contrary. Indeed, the
Federal Circuit held that the “market effects” factor mili-
tated against fair use in part because Sun had tried to enter
the Android market. 886 F. 3d, at 1209 (Sun sought licens-
ing agreement with Google). But those licensing negotia-
tions concerned much more than 37 packages of declaring
code, covering topics like “the implementation of [Java's]
code” and “branding and cooperation” between the frms.
App. 245; see also 4 Nimmer on Copyright § 13.05[A][4] (cau-
tioning against the “danger of circularity . . . posed” by con-
sidering 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 defned 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 conficting evidence can
overcome evidence indicating that, at a minimum, it would
have been diffcult 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 Ora-
cle a signifcant 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, frst comes on the market, it may
attract new users because of its expressive qualities, such as
a better visual screen or because of its superior functionality.
As time passes, however, it may be valuable for a different
reason, namely, because users, including programmers, are
just used to it. They have already learned how to work with
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Opinion of the Court
it. See Lotus Development Corp., 49 F. 3d, at 821 (Bou-
di
n, J., concurring).
The record here is flled 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
proftability 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
diffculties of producing alternative APIs with similar appeal
to programmers, allowing enforcement here would make of
the Sun Java API's declaring code a lock limiting the future
creativity of new programs. Oracle alone would hold the
key. The result could well prove highly proftable to Oracle
(or other frms holding a copyright in computer interfaces).
But those profts could well fow from creative improve-
ments, new applications, and new uses developed by users
who have learned to work with that interface. To that ex-
tent, the lock would interfere with, not further, copyright's
basic creativity objectives. See Connectix Corp., 203 F. 3d,
at 607; see also Sega Enterprises, 977 F. 2d, at 1523–1524
(“[A]n attempt to monopolize the market by making it impos-
sible for others to compete runs counter to the statutory pur-
pose of promoting creative expression”); Lexmark Int'l, 387
F. 3d, at 544 (noting that where a subsequent user copied a
computer program to foster functionality, it was not exploit-
ing the program's “commercial value as a copyrighted work”
(emphasis in original)). After all, “copyright supplies the
economic incentive to [both] create and disseminate ideas,”
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40 GOOGLE
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Harper & Row, 471 U. S., at 558, and the reimplementation
of
a user interface allows creative 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 functional
makes it diffcult to apply traditional copyright concepts 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, journal-
istic writings, and parodies. Rather, we here recognize that
application of a copyright doctrine such as fair use has long
proved a cooperative effort of Legislatures and courts, and
that Congress, in our view, intended that it so continue. As
such, we have looked to the principles set forth in the fair
use statute, § 107, and set forth in our earlier cases, and ap-
plied 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,
and the case is remanded for further proceedings in conform-
ity with this opinion.
It is so ordered.
Justice Barrett took no part in the consideration or
decision of this case.
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41
Appendix A to opinion of the Court
APPENDIXES
A
Computer
System Diagram
Some readers might fnd 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 refecting
the division between a computer's hardware and its soft-
ware. (It is not intended to refect any specifc technology
at issue in this case.)
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J. Garrido & R. Schlesinger, Principles of Modern Operating
Systems 8 (2008) (“Figure 1.4. An External View of a Com-
puter System”).

42 GOOGLE
LLC v. ORACLE AMERICA, INC.
Appendix B to opinion of the Court
B
Sun
Java API Diagram
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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 located
within a particular class. That class is located within a par-
ticular package. All of the lines of code that provide that
organization and name the methods, classes, and packages
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 (which Google
wrote for its Android API) that actually instructs the com-
puter in the programmer's application.

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Thomas, J., dissenting
Justice Thomas, w ith whom Justice Alito joi ns,
dissenti
ng.
Oracle spent years developing a programming library that
successfully attracted software developers, thus enhancing
the value of Oracle's products.
1
Google sought a license to
use the library in Android, the operating system it was de-
veloping for mobile phones. But when the companies could
not agree on terms, Google simply copied verbatim 11,500
lines of code from the library. As a result, it erased 97.5%
of the value of Oracle's partnership with Amazon, made tens
of billions of dollars, and established its position as the owner
of the largest mobile operating system in the world. De-
spite this, the majority holds that this copying 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 Congress
gave to computer code. By skipping over the copyrightabil-
ity question, the majority disregards half the relevant statu-
tory text and distorts its fair-use analysis. Properly consid-
ering that statutory text, Oracle's code at issue here is
copyrightable, and Google's use of that copyrighted code was
anything but fair.
I
In the 1990s, Oracle created a programming language
ca lled Java. Like many programming lang uages, Java
allows 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-
fne terms and then use those defnitions as a shorthand.
For example, the legal defnition for “refugee” is more than
1
A different company, Sun, created the library. But because Oracle
later purchased Sun, for simplicity I refer to both companies as Oracle.
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44 GOOGLE
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Thomas, J., dissenting
300 words long. 8 U. S. C. § 1101(42). Rather than repeat
a
ll 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 defned, 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 programs
w ithout hav i ng to wr ite from scratch a l l the basic
subprograms.
To create Java methods, developers use two kinds of code.
The frst, “declaring code,” names the method, defnes what
information it can process, and defnes what kind of data it
can output. It is like the defned 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 defnition in a statute.
Oracle's declaring code was central to its business model.
Oracle profted fnancially by encouraging developers to cre-
ate programs written in Java and then charging manufactur-
ers a fee to embed in their devices the Java software plat-
form 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
2
Consider what the relevant text of a simple method—designed to re-
turn the largest of three integers—might look like:
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 frst line is declaring code that defnes 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).”
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methods to encourage them to write programs for the Java
platfor
m. In return, developers were required to make
their programs compatible with the Java platform on any
device. Developers were encouraged to make improve-
ments to the platform, but they were required to release
benefcial modifcations to the public. If a company wanted
to customize the platform and keep those customizations
secret for business purposes, it had to pay for a separate
license.
By 2005, many companies were racing to develop operating
systems for what would become modern smartphones. Ora-
cle's strategy had successfully encouraged millions of pro-
grammers 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 ne-
gotiate a license, but they were unsuccessful, in part because
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 contain-
ing “Core Java Libraries.” Id., at 600. Oracle predictably
responded by suing Google for copyright infringement. The
Federal Circuit ruled that Oracle's declaring code is copy-
rightable 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.
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Thomas, J., dissenting
Computer code occupies a unique space in intellectual
proper
ty. 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 ft 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 defnes
“ `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 defnition 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 would
satisfy the general test for copyrightability. “Copyright
protection subsists . . . in original works of authorship fxed
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 numeri-
cal 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 opera-
tion” and thus excluded from protection by § 102(b). That
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47
Thomas, J., dissenting
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 codifes the “idea /expression dichotomy” that copyright
protection covers only “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
code is much more functional and thus is a “method of opera-
tion” 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 27. Declaring code defnes
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 con-
suming 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' deci-
sion to defne 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-
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48 GOOGLE
LLC v. ORACLE AMERICA, INC.
Thomas, J., dissenting
cal distinction between declaring and implementing code.
Implementi
ng 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 specifc language
protecting declaring code, the “ `specifc 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 oper-
ation” in § 102(b) does not remove protection from declaring
code simply because it is functional. That interpretation
does not, however, render “method of operation” meaning-
less. It is “given more precise content by the neighboring
words with which it is associated.” United States v. Wil-
liams, 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 ideas
implemented by computer code—such as math functions, ac-
counting methods, or the idea of declaring code—not the spe-
cifc expression Oracle created. Oracle cannot copyright the
idea of using declaring code, but it can copyright the specifc
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,
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49
Thomas, J., dissenting
and business-related circumstances” are “rapidly changing.”
An
te, at 20. That, of course, has been a constant where com-
puters 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 23. 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 declaring
and implementing code. But the majority creates just such
a distinction. The result of this distorting analysis is an
opinion that makes it diffcult to imagine any circumstance
in which declaring code will remain protected by copyright.
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 fnding of fair
use in favor of Google, we must construe all factual disputes
and inferences in Google's favor and ask whether the evi-
dence was suffcient 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
3
I would not, however, defnitively 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 ratifed. 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.

50 GOOGLE
LLC v. ORACLE AMERICA, INC.
Thomas, J., dissenting
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, can-
not 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 distinc-
tion that the statute rejects. Tellingly, the majority evalu-
ates the factors neither in sequential order nor in order of
importance (at least two factors are more important under
our precedent
5
). 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 declaring
and implementing code that renders the former less worthy
of protection than the latter. Because the majority's mis-
taken 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,
4
The factors are: “(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonproft 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).
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 element
of fair use.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471
U. S. 539, 566 (1985). The frst factor—the purpose and character of the
use, including whether the use is commercial—is the second-most impor-
tant 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' ”).
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Thomas, J., dissenting
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 copy-
rightable, this factor alone cannot support a fnding of fair
use.
The majority, however, uses this factor to create a distinc-
tion between declaring and implementing code that in effect
removes copyright protection from declaring code. It con-
cludes 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 28–29.
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 29. 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 28 (declaring code is “user-centered”). Implement-
ing code thus conveys no expression to developers. Declar-
ing code, in contrast, 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.
Even setting those concerns aside, the majority's dis-
tinction is untenable. True, declaring code is “inher-
ently bound together with uncopyrightable ideas.” Ibid.
Is anything not? Books are inherently bound with uncopy-
rightable ideas—the use of chapters, having a plot, or includ-
ing 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
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52 GOOGLE
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Thomas, J., dissenting
bound up with “the division of computing tasks” that cannot
be
copyrighted.
6
Ante, at 27. We have not discounted a
work of authorship simply because it is associated with non-
copyrightable ideas. While ideas cannot be copyrighted, ex-
pressions of those ideas can. Golan, 565 U. S., at 328.
Similarly, it makes no difference that the value of declaring
code depends on how much time third parties invest in learn-
ing it. Many other copyrighted works depend on the same.
A Broadway musical script needs actors and singers to in-
vest 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 effcient 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 27,
but it overlooks the implications of its own conclusion.
Only after wrongly concluding that the nature of declaring
code makes that code generally unworthy of protection does
the Court move on to consider the other factors. This open-
ing 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
6
The majority also belittles declaring code by suggesting it is simply a
way to organize implementing code. Ante, at 27. Not so. Declaring
code defnes 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 10. Declaring code creates the method
calls.
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53
Thomas, J., dissenting
market for or value of [Oracle's] copyrighted work.' ” Har-
pe
r & 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
sales. Its strategy was to release Android to device manu-
facturers for free and then use Android as a vehicle to collect
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 manufac-
turers 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 Edi-
tion 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 oper-
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54 GOOGLE
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Thomas, J., dissenting
ating systems. Before Google copied Oracle's code, nearly
e
very mobile phone on the market contained the Java plat-
form. Oracle's code was extraordinarily valuable to any-
body who wanted to develop smartphones, which explains
why Google tried no fewer than four times to license it. The
majority's remark that Google also sought other licenses
from Oracle, ante, at 38, does not change this central fact.
Both parties agreed that Oracle could enter Google's current
market by licensing its declaring code. But by copying the
code and releasing Android, Google eliminated Oracle's op-
portunity 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
enter the modern smartphone market successfully.
7
Ante,
at 36. But whether Oracle could itself enter that market is
only half the picture. We look at not only the potential mar-
ket “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 flm 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 dis-
astrous effect on Oracle's potential market, the majority
changes course and asserts that enforcing copyright pro-
tection could harm the public by giving Oracle the power
to “limi[t] the future creativity” of programs on Android.
Ante, at 39. But this case concerns only versions of Android
released through November 2014. Order in No. 3:10–cv–
3561 (ND Cal., Feb. 5, 2016), Doc. 1479, p. 2 (identifying ver-
sions through Android Lollipop 5.0). Google has released
7
It also suggests that Oracle may have received some incidental beneft
from Android. Ante, at 37–38. But even assuming that is true, it would
go to the question of damages, not fair use. And there is no evidence that
any beneft came even close to offsetting Oracle's enormous loss.
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55
Thomas, J., dissenting
six major versions since then. Only about 7.7% of active
Android
devices still run the versions at issue.
8
The majori-
ty's concern 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 versions that are close to obsolete.
The majority's concern about a lock-in effect also is specu-
lation belied by history. First, Oracle never had lock-in
power. The majority (again) overlooks that Apple and Mi-
crosoft created mobile operating systems without using Ora-
cle's declaring code. Second, Oracle always made its declar-
ing 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 dam-
ages 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 39. But it
is Google that recently was fned a record $5 billion for abus-
ing 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, others will likely hesitate
to spend the resources Oracle did to create intuitive, well-
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.
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56 GOOGLE
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Thomas, J., dissenting
organized libraries that attract programmers and could com-
pete
with Android. If the majority is worried about monop-
olization, it ought to consider whether Google is the greater
threat.
By copying Oracle's work, Google decimated Oracle's mar-
ket 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.
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 nonproft 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.
Beg i n w ith the over whelmi ng commercia l 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 heavily—if not
decisively—against fair use.
The majority attempts to dismiss this overwhelming com-
mercial use by noting that commercial use does “not neces-
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 consum-
ers on desktops. Using control over Android to choose a default search
engine may seem trivial, but Google certainly does not think so. Accord-
ing 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, Business Insider,
Sept. 29, 2018. Google does not appear to have disputed this fgure.
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57
Thomas, J., dissenting
sarily” weigh against fair use. Ante, at 32. True enough.
Commercia
l use sometimes can be overcome by use that is
suffciently “transformative.” Campbell, 510 U. S., at 579.
But “we cannot ignore [Google's] intended purpose of
supplanting [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
the copyright holder's market.
Regardless, Google fares no better on transformative use.
A court generally cannot fnd 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 frst with new expression, meaning, or
message.” 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 re-
search.” § 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 re-
verse 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
purpose 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,
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).
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at 30. So, by turns, the majority transforms the defnition
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
31 (Google's copying “can further the development of com-
puter programs”).
That new defnition eviscerates copyright. A movie stu-
dio that converts a book into a flm without permission not
only creates a new product (the flm) 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 manuscripts.
11
Ultimately, the majority wrongly confates transformative
use with derivative use. To be transformative, a work must
do something fundamentally different from the original.
A work that simply serves the same purpose in a new
context—which the majority concedes is true here—is deriv-
ative, not transformative. Congress made clear that Oracle
holds “the exclusive rights . . . to prepare derivative works.”
§ 106(2). Rather than create a transformative product,
Google “proft[ed] from exploitation of the copyrighted mate-
rial 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 copy-
ing is unfair. Ibid. But even if the copier takes only a
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.
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as: 593 U. S. 1 (2021)
59
Thomas, J., dissenting
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.
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 inter-
ested in that code. And Google copied that code “verbatim,”
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 transforma-
tive. Campbell, 510 U. S., at 586 (recognizing that this
four th fac tor “w i l l harken back to the [pur pose-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 fll about 600 pages in an
appendix, Tr. of Oral Arg. 57—were just a fraction of the
code in the Java platform. But the proper denominator is
declaring code, not all code. A copied work is quantitatively
substantial if it could “serve as a market substitute for the
original” work or “potentially licensed derivatives” of that
work. Campbell, 510 U. S., at 587. The declaring code is
what attracted programmers. And it is what made Android
a “market substitute” for “potentially licensed derivatives”
of Oracle's Java platform. Google's copying was both quali-
tatively 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
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60 GOOGLE
LLC v. ORACLE AMERICA, INC.
Thomas, J., dissenting
itself support a determination of fair use because holding
other
wise 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 fawed fair-use analysis with a
fnding 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 identifes no
other relevant factors; and I can think of none that could overcome the
overwhelming weight of these key factors.
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