Breaking News: Was Oracle v. Google More About Fair Use Than Software?

When: April 20, 2021 at 12:30pm - 1:00pm EDT - This event has passed


On April 5, 2021, the U.S. Supreme Court issued its long-anticipated ruling in the decade-long Oracle v. Google software copyright litigation. The Court reviewed two Federal Circuit Court opinions issued in the case, one dealing with the copyrightability of application programming interface (API) code, and the other overturning a jury verdict of fair use and finding that fair use determinations should be made by judges on de novo review. Many commentators believed that the Court would clarify open questions around the scope of copyright protection for computer programs, including whether that protection extends to nonliteral elements and how to apply the merger doctrine to separate methods of operation from expression. However, the Court’s approach to fair use, which will be precedential in software and non-software cases alike, may prove to have the most lasting impact.
The Court found that, although fair use is a question of mixed law and fact, the application of the law to the facts ultimately rests with judges. Thus, while juries make factual determinations regarding things like whether there was harm to a particular market, or how much of a work was copied, it is up to judges to determine whether the facts show a “fair use.” The Court also emphasized the importance of the second fair use factor (the nature of the work being examined), applied what appears to be a broad “transformative use” standard in the first factor (the purpose and character of the use), and applied a very searching, fact-intensive inquiry in the fourth factor (the effect of the use on the potential market for or value of the work).



Chad Rutkowski
Partner, BakerHostetler LLP

Chad Rutkowski’s practice focuses on the intersection of copyright and technology. As co-lead of BakerHostetler’s Digital Transformation and Data Economy team, he assists clients in the midst of the “digital transformation,” helping them identify and capture the intellectual property (IP) in their valuable data, algorithms, and enterprise software. Clients rely on him to help identify their IP, to build internal processes for its management, navigate open source and other open innovation strategies, and to create licensing programs that enable full value realization. He further protects that value in disputes and litigation, whether through enforcing his clients’ IP rights or fending off attacks by competitors. Chad is the principal author of the firm’s Beyond Source Code web tool, which digests all court decisions addressing the scope of copyright protection in the non-literal elements of source code. Chad writes and presents regularly on the robust protections afforded by copyright law to software, data, artificial intelligence, and related innovations. He has helped his clients protect innovations in healthcare technology, water management, smart cities, population health management, and online consumer lending. Chad’s interest in how IP law has adapted to digital transformation began in his former role as a founder and business manager of a digital media publisher. Drawing from his professional and legal experiences, he co-leads the firm’s Technology & IP Transactions and Outsourcing practice team and contributes regularly to the firm’s IP blogs. Additionally, he is an active member of The Copyright Society and the ABA IP Law Section. Chad is AV Preeminent-rated by Martindale-Hubbell and has been voted by his peers as a Pennsylvania Super Lawyer and Rising Star.

Theresa Weisenberger
Partner, BakerHostetler LLP

Theresa Weisenberger focuses her practice on the intersection of technology, business, and the law and regularly advises technology clients on various aspects of intellectual property law. She reviews, analyzes, and negotiates agreements that directly and tangentially affect all types of intellectual property rights, including licenses and sales of patents, trademarks, copyrights, and trade secrets. Theresa also regularly advises clients on information technology and transactions, including agreements regarding standard software licensing, software-as-a-service, cloud hosting, and technology development. She also conducts due diligence to facilitate the transfer of intellectual property rights, including as part of mergers and larger acquisitions. Her technical experience includes all aspects of electrical and computer technologies, including software and mobile applications, automotive systems, control systems, robotics, communication systems, networking, cloud computing, cryptography, and wireless technologies. Her technical experience also includes apparel, mechanical equipment, residential and commercial appliances, and consumer products.


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CLE credit will not be offered for this breaking news update.