Google v Oracle: a closer look at the dissent

While copyright holders and challengers alike are still digesting the consequences of the US Supreme Court’s expansive view of fair use in Google v Oracle (2021), it bears noting that the court was not unanimous in its decision.

Justice Clarence Thomas, joined by Justice Samuel Alito, wrote a blistering 18-page dissent, rebuking the majority for basing its decision on what the dissent felt was a non-existent distinction between the “declaring code” and the “implementing code” that was “wholly inconsistent with the substantial protection Congress gave to computer code”.

The US Copyright Act expressly recognises the copyrightable nature of computer programmes and defines computer programs as instructions “to be used directly or indirectly in a computer in order to bring about a certain result”.

According to the dissent, the declaring code of Oracle’s application programming interface (API) clearly qualified as a computer program that is used to bring about a result indirectly—as Java programmers use the declaring code to issue commands that were performed by the implementing code, which brings about those results directly.

The declaring code deserved no less protection than the implementing code, according to the dissent.

The core of copyright

Contrary to the majority’s opinion, the dissent wrote that the declaring code is actually closer to the “core of copyright” than the implementing code because the declaring code is the user-facing code that the developers actually use, whereas developers never interact with the implementing code.

While the court found for Google on all four fair use factors, Justice Thomas disagreed, finding that three factors “decisively favour Oracle”.

As for the first fair use factor addressed by the majority—the nature of the copyrighted work—Justice Thomas criticised their reliance on the fact that declaring code is “inherently bound together with uncopyrightable ideas” such as general task division and organisation.