Repurposed Foul Lines after Google v. Oracle

• Date: 01 December 2022
• Author: Roderick M. Thompson

Published in Landslide, Volume 14, Number 2, 2022. © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the

American Bar Association.

5

A

fter more than 10 years of litigation, in April 2021,

the U.S. Supreme Court issued its much-anticipated

decision in Google LLC v. Oracle America, Inc.

1

The

2,151st and nal entry in the district court’s docket of May 14,

2021, reects that nal judgment in favor of Google was afrmed

by the Supreme Court’s decision. While the litigation may be

nished for the parties, the Supreme Court’s decision will have a

lasting impact on the proper interpretation and determination of

fair use, substantively and procedurally.

The majority opinion was somewhat disappointing, at least to

some, in avoiding the rst of two questions presented by Google:

whether application programming interface (API) “declaring

code” and its associated organizational structure is copyright-

able. The Google decision, however, has signicant relevance to

copyright law in that it squarely addresses the other question:

whether Google’s admitted copying was protected by the fair use

defense. Certainly, the decision did not resolve all fair use issues,

and it may have created some new questions.2 Nevertheless, the

Repurposed

Foul Lines after

Google v. Oracle

By Roderick M. Thompson

Image: Getty Images