By Natalie DeCoste

The Committee for Justice hosted a panel called “Google v. Oracle: The Supreme Court and Copyright in the Digital Age” to discuss the recent landmark decision from the Supreme court on Google v. Oracle.

Curt Levey, the President of the Committee for Justice, and one of the authors of the Committee’s amicus brief on behalf of Oracle, moderated the event. The panelists were Adam Mossoff, Professor of Law at the George Mason University Antonin Scalia Law School, Zvi Rosen, Assistant Professor at the Southern Illinois University School of Law, and Steven Tepp, President & CEO of Sentinel Worldwide.

Levey began the event by providing the background for the case. Google wanted to take advantage of app developers’ familiarity with Java script when developing its Android phone operating system, so the company copied over 11,000 lines of Java code without a license. When Oracle acquired ownership of Java, it sued Google for copyright infringement and won twice in the lower courts. The Supreme Court examined two primary issues in its hearing of the case: the copyrightability of the code and whether there was a fair use exception.

Steven Tepp began by focusing on Justice Stephen Breyer’s majority opinion in the case. Tepp offered that the Court did not conduct a proper copyrightability analysis where they would have found that the code in question was copyrightable and then preceded with a fair use analysis. In Tepp’s view, Justice Breyer’s opinion does not stay true to how Congress intended copyright law to be analyzed.

“The result is an opinion that purports to assume copyrightability so that they can then discuss fair use, but then in the course of that discussion of fair use contradicts and undermines the assumption of copyrightability, which creates an untenable internal contradiction in the opinion, said Tepp.

Specifically, Tepp said that Justice Breyer’s mic drop moment was calling Oracle’s code “user interface.” The moment was important because it was a stray from the normal assumption of copyrightability with creative code and immediately adopted Google’s argument that code is not protectable.

Tepp said that copyright truly is for expression, not function, and the Copyright Act protects code as a literary work. However, Justice Breyer concluded the opposite of what assumption of copyrightability would dictate. The Justice found the second factor out of the four to consider in copyright cases favored Google.

In terms of transformative use of the software, the first of the four factors, Justice Breyer primarily adopted Google’s argument in his opinion.

“The first fair use factor deals with the nature of the use… frankly Justice Breyer simply adopts Google’s view of the case…He brushes aside the fact that Google used the copied code for exactly the same purpose for which it was written, which is the opposite of transformative-ness,” said Tepp.

Specifically, Tepp noted that Justice Breyer ignores that Google rejected a license because it did not want to abide by Oracle’s licensing requirement and continued to have an interoperable system. The conclusion that Justice Breyer reached is that Google’s actions were transformative because the code was turned into a different form, a smartphone.

The consideration of market harm is the fourth factor at play and the most important for consumers.

“For the fourth-factor harm to the market or potential market for the work the Court contradicts itself first it suggests that the original authors of the code would not have been successful migrating it to smartphone devices then it acknowledges that enforcement of Copyright, quote, could well prove highly profitable to Oracle, end quote. That sounds a lot like market harm,” said Tepp

Adam Mossof next focused on Justice Thomas’s dissenting opinion.

“Justice Breyer skipped factor one, a point Justice Thomas and his dissent immediately calls him out for, and rightly so. Again, this is, as Justice Thomas points out in his dissent, heavily dispositive in cases, and in fact, I think it’s just as a general understanding and as a practical rule that if someone deliberately, explicitly copies another work and it’s explicitly to create a commercial product in the marketplace that will be competing in some way shape or form with the work that they copied that that would never be found to be fair use,” explained Mossof.

Justice Thomas’ dissent, and Mossof in his explanation of the opinion, takes issue with Justice Breyer’s improper truncation and mangling of the fair use analysis by not addressing a statutorily set forth factor in the analysis. Essentially, the dissent shows that Google’s copying has absolutely crushed Oracle’s licensing business model, which happens due to predatory infringement of all intellectual property rights both in the Copyright space the patent space.

Rosen was the last to speak, and he offered his take on what he thought the outcome of the opinion would be.

“I know I’ve talked to software developers who have said as it is it’s a huge problem where you know apps for smartphones are a big industry ironic given the context of this opinion, and frankly increasingly if you develop an app it’s in any way successful 100 competitors will pop up all of them want to get profit… it’s really potentially problematic in terms of, you know, not dealing with knockoffs wherever there is any kind of copying of bits and pieces, but it’s a new sort of clone with different code,” explained Rosen.

In addition to general app development, Rosen also thought that the opinion could create issues in the PC game market and create unsanctioned modifications.

“Potentially the biggest impact decision I think that will be a purpose…person character analysis is just wild. I mean for starts they really push hard are transformative-ness, and you know they…say ‘oh we’re not worried about bad face,” explained Rosen.

Essentially, the opinion broadens the scope of what considerations of transformative-ness can encompass and how much change needs to happen.

After the panelists gave their remarks, Levey asked the audience questions to the group. Levey asked the panelists if they agreed with Justice Thomas’s dissent that the decision effectively removes copyright protection from declaring code and where computer code protections are headed.

“If the Court were to actually do an analysis and find it copyrightable, it would find almost anything is fair use if it followed the Breyer reasoning. But as all of us have pointed out, Breyer’s reasoning, even factor by factor, within the fair use test is not consistent with prior precedent, and then at the end of the decision, the Court says we’re not changing any president on fair use, so I mean anybody who tells you for certain what this means has an agenda because there’s no way to know what this gobbledygook means,” said Tepp.

Mossof shared similar sentiments to Tepp and highlighted that future cases would come down to what degree will trial court judges and appellate court judges would be willing to accept Justice Breyer’s decision and his logic.

The panel questions then turned to anticompetiveness and Justice Breyer’s contention that if Oracle’s code could not be copied, there would be an anticompetitive impact.

“After Google puts forth this false dichotomy, it’s either copyright locking everything up or freedom and innovation. That’s an absolutely, as I said, false dichotomy because the reality that exists in the middle is licensing where the Copyright owner’s rights are respected, where their investment is rewarded, and where people get to use the copyrighted works for further productive use and the reality that justices prior refused to even acknowledge is that Oracle had and unfortunately it may well be a past tense a very vibrant licensing market for the code,” said Tepp.

“Speaking of monopoly, in his dissent, Thomas basically accused Google of being a monopoly. I think to keep pointing out they were fined about $5 billion for using Android to violate antitrust laws… I think he also said that Google’s strategy was to use Android as a vehicle to, you know, get data on consumers and deliver behavioral ads,” added Levey.