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Supreme Court Tech Ruling Could Have Wider Effects on Copyright

Three observations about—and one question arising from—the Google v. Oracle ‘fair use’ case.
April 7, 2021
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The Oracle logo on the company’s world headquarters in 2009 in Redwood Shores, California. (Photo by Justin Sullivan / Getty)

The Supreme Court ruled on Monday that Google didn’t infringe Oracle’s copyright when it copied some Java code into early versions of the Android operating system. The decision is—to borrow a Bidenism—a big fucking deal. It will take lawyers and courts years (and thousands of billable hours of attorney time) to work out all the ways this case is going to change copyright practice. But right off the bat, it’s clear that there are at least three important things that this case tells us that go beyond Google’s fight with Oracle—things about the Supreme Court and partisanship, about some fundamental aspects of copyright that we’re still arguing about, and about some of the reasons that copyright isn’t the best tool for everything we’re using it for. It also raises one huge question: What, if anything, does the case mean outside the software industry?

Before we get to that, though, it’s probably worth remembering how a case about decade-old software got us to this Supreme Court ruling, and why it’s such a big deal for the software industry.

Google v. Oracle has been dragging on for so long that Dickens would have written about it if he weren’t dead. Oracle sued Google for patent and copyright infringement in 2010. Three trials and two appeals later, the patent claims were long-gone, the software that Oracle sued over was obsolete, and only a few copyright claims remained. The Supreme Court’s ruling deals with just those. The Court held that Google didn’t infringe Oracle’s copyright—that copying Oracle’s code was permissible under the copyright law’s “fair use” provisions.

So why is this a big deal? If most of Oracle’s case died a long time ago and the software at issue isn’t in newer Android devices, why all the excitement in the press and on social media? Part of the reason is that, by holding that Google’s use of the things Oracle wrote was fair, the Supreme Court passed on what many saw as an opportunity to completely change how much of the software industry works. Google got sued for using Oracle’s Java APIs, or application programming interfaces. The use of APIs lets developers build applications that work together. That’s important to how software and software development work, and it’s why even Google competitors like Microsoft weighed in on Google’s side.

Oracle wanted to be paid—it wanted Google to have to license the APIs. The Supreme Court disagreed. By holding that the use of the APIs was fair, and thus that APIs generally can be used without a license, the Court makes it easier for developers to reuse code to make new things. That alone makes this a very important ruling.

But there’s more we can learn from this case, and some things we don’t know yet:

Observation 1: Not everything the Court does is partisan.

It’s easy, especially in the wake of the confirmation hearings of the last few years, to look at Supreme Court rulings through the lens of partisanship. And, sure, sometimes the partisan divide is important, and sometimes the left-right labels that the press applies to justices are suited to a specific case.

But sometimes they’re not.

Monday’s ruling was 6-2—three Republican-appointed justices joined with the three  Democratic appointees to rule in Google’s favor. The other side also has some strange bedfellows: The American Conservative Union and most of Hollywood’s movie studios both supported Oracle’s position. Other copyright cases have cut across partisan lines even more clearly; when, in 2003, the Court decided that a 1998 law extending the duration of copyright was constitutional, Justice Ruth Bader Ginsburg wrote the Court’s opinion, all the conservatives joined her, and Justices Stevens and Breyer were the dissenters. Copyright, like many legal issues, isn’t an area where the usual left-right divide is all that important.

Observation 2: Monday’s decision is about more than just a pissing match between Google and Oracle. It’s about what copyright should do in the first place.

Article I, section 8, clause 8 of the Constitution tells us that Congress can make copyright law in order to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” We’ve been arguing ever since about how that’s best accomplished.

In a dissent, Justice Thomas (joined by Justice Alito) argues that Google’s use of Oracle’s code, which deprived Oracle of billions in licensing revenue, was not fair use. Oracle, in Thomas’s view, spent years developing a programming library, only to have Google swoop in, take a chunk of it, and use it without paying Oracle a dime. (This, by the way, is not the Thomas opinion that has been stirring up controversy this week.)

Justice Breyer, who wrote the majority opinion, looked at the question in very different terms. The use was fair because Google’s use gave “programmers a highly creative and innovative tool,” and it was consistent with the “basic constitutional objective of copyright itself.” Copyright, Justice Breyer reminded the reader, isn’t there to reward authors; it’s there to promote progress.

Justice Breyer’s views got six votes from the Court; Justice Thomas’s got two. (Justice Barrett did not participate in this case.) This was a clear endorsement of the principle that copyright is not intended to provide authors with the right to make as much money as possible from their works.

Observation 3: One-size-fits-none copyright is nuts.

The software that Google and Oracle are fighting over is obsolete. Google stopped using Oracle’s APIs years ago—less than 10 percent of the Android devices still on the market use the software involved in this suit. Yet not only did the case keep going, so does the copyright in these programs. Google—or its corporate descendants, if any—will still hold a valid and enforceable copyright in those early versions of Android well into the twenty-second century.

Does the copyright on the software in the phone you traded in back in 2012 really need to last as long as the copyright in Citizen Kane? Should things that allow interoperability even be protected, or should they be free to use specifically to encourage people to make things that work with each other? We’ve been using one copyright law to cover all the kinds of creative work under the sun, but, as this case shows us, that might not make sense. Different kinds of protection for different kinds of things might be more reasonable.

The Unanswered Question: What does this decision mean beyond copyright?

Fair use is one of the most complicated and murky areas of copyright. This is probably the biggest fair use decision since the Court held that 2 Live Crew made fair use of Roy Orbison’s song “Pretty Woman.” But what does it mean outside the software industry? We don’t know yet, but we do know that we’re going to have to figure that out soon.

Two weeks ago, a lower court took on the fair use doctrine and came to a very different result. The appeals court judges in that case held, in a decision that gave curators around the nation simultaneous heart attacks, that a series of Andy Warhol pictures infringed the copyright of the photographer who took the photo Warhol used as the starting point for his work. Warhol’s use was, that court held, not fair.

What we don’t know yet is whether the Google v. Oracle ruling will have any effect on that case, or on other cases involving fair use in the arts. Some of the language in the Google case is very favorable to artists like Warhol, but the case involved software that the Court didn’t think warranted much copyright protection in the first place. Will that reasoning apply to things that are more creative, and less like the tools that are used to create things? Will it apply to other areas where the right to fair use is unsettled, such as memes and tweets? Stay tuned—those issues will be coming to a courtroom near you.

Mike Dunford

Mike Dunford is a lawyer and intellectual property researcher at Queen Mary University of London, where he focuses on issues related to copyright and online communities. The views expressed here are his own. Twitter: @questauthority.