By Michael Rosen

Last week, the Supreme Court handed down its long-awaited ruling in the copyright fight between Google and Oracle, a decision that figures to provide modestly more room for computer programmers to operate.

As we explored previously, the two Silicon Valley behemoths have wrestled for more than a decade over Google’s use in its Android operating system of certain Java application programming interfaces (APIs) created by Oracle. After a jury excused this use as “fair,” the Federal Circuit Court of Appeals reversed the verdict in 2018, finding Google’s use of this so-called “declaring code” substantial, highly commercial, and non-transformative. Google petitioned the Supreme Court for review of the Federal Circuit’s decision, and the justices heard arguments last October; observers believed their questioning indicated an overall lean toward Google.

Sure enough, Justice Stephen Breyer, writing for a 6-2 majority (Justice Amy Coney Barrett had not been seated on the high court when it heard arguments), found for Google, reversing the Federal Circuit’s ruling and holding that Google’s use of Java was indeed fair.

First, Justice Breyer found
that the APIs in question were “inherently bound together with uncopyrightable
ideas (general task division and organization) and new creative expression
(Android’s implementing code).”

Next, he held that the jury
could reasonably have considered Google’s use transformative of the original
material because it “seeks to expand the use and usefulness of Android-based
smartphones” and “offers programmers a highly creative and innovative tool for
a smartphone environment.”

Justice Breyer then ruled that
the jury could plausibly have found Google’s use of Oracle’s APIs insubstantial,
because even though Google admittedly copied 11,500 lines of computer code, the
sum total of Java API code ran to 2.86 million lines.

Finally, and perhaps most importantly, Justice Breyer found that the jury was reasonable in concluding that Android operated in a market that was distinct from Java Standard Edition and that “given programmers’ investment in learning the Sun Java API, to allow enforcement of Oracle’s copyright here would risk harm to the public.” The high court further determined that “the reimplementation of a user interface allows creative new computer code to more easily enter the market.”

In dissent, Justice Clarence
Thomas, joined by Justice Samuel Alito, concluded that Google “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.” Justice Thomas found that the copyright statute
“does not remove protection from declaring code simply because it is
functional.” He lambasted the majority’s broadening of “transformative” use to
include merely creating new products. And he held that “by copying Oracle’s
code to develop and release Android, Google ruined Oracle’s potential market.”

(After oral argument, we speculated here that the decision would come down to a battle of analogies, and indeed the Supreme Court did not disappoint, likening APIs and declaring code to a robot selecting recipes for a chef from a file cabinet; to book chapters, plots, and footnotes; to a car’s gas pedal; to a QWERTY keyboard; to a factory floor; and to language itself.)

In the wake of the ruling, both
companies reacted predictably.

“The Google platform just got bigger and market power greater — the barriers to entry higher and the ability to compete lower,” Dorian Daley, Oracle’s executive vice president and general counsel, said after the ruling. “They stole Java and spent a decade litigating as only a monopolist can. This behavior is exactly why regulatory authorities around the world and in the United States are examining Google’s business practices.”

For its part, Google called the ruling “a victory for consumers, interoperability, and computer science.” Kent Walker, the company’s chief legal officer, said “the decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers.”

Meanwhile, in an apparently unrelated move, Google parent Alphabet announced plans to migrate its financial software from Oracle to SAP in the coming weeks.

Practically, the decision will make it slightly easier for software developers to copy declaring code, so long as they use it to create genuinely new products. Perhaps for this reason, Matt Schruers, president of the Computer & Communications Industry Association, praised the ruling, calling it “a win for interoperability, copyright principles and the future of innovation.” But it’s unlikely to mark a fundamental change in how we conceive of computer code copyright issues.

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