By Natalie DeCoste
The Supreme Court has made its decision in what has been called the “copyright lawsuit of the decade,” ruling for Google over Oracle.
The lawsuit centered around roughly 12,000 lines of code Google used to build its Android operating system that it copied from the Java SE application programming interface (API) developed by Sun Microsystems, which Oracle acquired in 2010.
The Court was asked to consider if Oracle, Java SE’s owner, could copyright the copied lines from the API and, if so, whether Google’s copying constituted a permissible “fair use” of that material, freeing Google from copyright liability.
Oracle claimed that it was owed as much as $9 billion, while Google contended that its use of the code was covered under the fair use doctrine and therefore not subject to copyright liability.
Consumers’ Bulletin’s publisher, Consumers’ Research, got involved in the case in early 2020 when it submitted an amicus brief in favor of Oracle. The non-profit took the position that Oracle’s computer code is copyrightable under the Copyright Act and that Google’s unauthorized copying of the code was not excusable under fair use.
The amicus brief highlighted that Google’s position in the case, which was that the public has seemingly benefitted from that pirated code improperly, separated the economic-incentive rationale for copyright protection from the origins of copyright protections in America. Additionally, the brief noted that Google was incorrect in its claim that copyright in any way decreases innovation.
As a consumer advocacy group, Consumers’ Research took the position that Google’s theft of the code would hurt consumers. By diminishing the economic incentive to create products like the code in dispute, consumers will have fewer choices in the marketplace.
The Supreme Court disagreed with Oracle and Consumers’ Research, ruling 6-2 in favor of Google. Justice Stephen Breyer authored the majority opinion, and Justice Amy Coney Barret did not participate in the decision.
The Court found that Google’s copying of the code, which included only those lines of code needed to allow programmers to work in a new and transformative program, was a fair use of that material as a matter of law. The Court determined that this case implicated two of the limits in the current Copyright Act. Copyright protection cannot extend to “any
idea, procedure, process, system, method of operation, concept, principle, or discovery.” Also, a copyright holder may not prevent another person from making fair use of a copyrighted work.
The holding of the Court focused primarily on the fair use of Oracle’s code by Google.
“Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language… The record demonstrates numerous ways in which reimplementing an interface can further the development of computer programs. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself,” wrote Justice Breyer in his majority opinion.
The opinion also noted that the very nature of code lends itself to fair use. According to the Court, the copied code lines are inherently bound to uncopyrightable ideas, those being the overall organization of the API. Given that the copied lines are in significant part derived from the investment of computer programmers who have learned the API’s system, the application of fair use is unlikely to undermine the general copyright protection that Congress provided for computer programs.
When looking at the market effects of allowing Google to copy the code lines, the Court determined that allowing fair use would have favorable outcomes on the market. The majority noted that the jury found that Oracle, at the time, was poorly positioned to succeed in the mobile phone market, creating a loss in the market should the copyright be allowed. It also noted that Google’s products were distinct from Oracle’s and more advanced, making them unique in the market.
“Looking to these important differences, Google’s economic expert told the jury that Android was not a market substitute for Java’s software… 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,” wrote Justice Breyer.
Additionally, the Court noted that given programmers’ investment in learning the Sun Java API, to allow enforcement of Oracle’s copyright here would risk harm to the public.
“Given the costs and difficulties of producing alternative APIs with similar 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 … The uncertain nature of Sun’s ability to compete in Android’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,” wrote Justice Breyer.
Justice Thomas’s dissent scolded the majority for skipping over what he viewed as an essential part of the analysis, the question of copyrightability.
“The majority purports to save for another day the question whether declaring code is copyrightable. The only apparent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding declaring code is copyrightable,” wrote Justice Thomas.
