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6 April 2021CopyrightMuireann Bolger

‘A win for the internet’: Oracle loses $9bn, decade-long Google copyright case

Google has emerged victorious from its long-running copyright dispute with Oracle after the US Supreme Court ruled that the tech company’s use of a computer code constituted “fair use”.

The decision was handed down yesterday, April 5, in a 6-2 decision authored by Justice Stephen Breyer, preventing Google from being hit with potentially billions of dollars worth of damages.

‘Creativity-related harms to the public’

In his written opinion, Justice Breyer, said that a win for Oracle could cause “creativity-related harms to the public” and that Google’s copying took only "what was needed to allow users to put their accrued talents to work in a new and transformative" programme.

This, he said, constituted a “fair use” of that material as a matter of law.

He noted that there are “numerous ways in which re-implementing an interface can further the development of computer programmes”, and that Google’s “purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself”.

He added that so many programmers used and had deep knowledge of Oracle's building blocks that a ruling in favour of Oracle would turn computer code into “a lock limiting the future creativity of new programmes”.

Oracle alone would hold the key, noted Breyer, and “the lock would interfere with, not further, copyright’s basic creativity objectives”.

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

Meanwhile, Google declared the decision as a win for the victory for the entire software industry. “Today's Supreme Court decision in Google v Oracle is a big win for innovation, interoperability and computing,” said Kent Walker, the company's senior vice president for global affairs on social media platform Twitter.

An important win for the internet

According to Mark Lemley, the William H. Neukom Professor of Law at Stanford Law School, the ruling marks an important win for the internet and for the principle of interoperability, preserving the freedom of programmers to reimplement standards in their own code.

“Beyond software, the court holds that fair use can be resolved as a matter of law and strengthens the law's commitment to protecting transformative uses,” he said. “That throws considerable doubt on some recent appellate rulings cutting back on fair use, such as last week's ruling by the Second Circuit that Andy Warhol was a copyright infringer and that his works weren't transformative.”

The suit between Google and Oracle, the owners of Java script, broached the controversial question of whether application software interfaces (APIs) can be protected by copyright.

APIs make it easier for programmers to develop software compatible with scripts such as Java.

According to Bill Frankel, chair of Brinks Gilson & Lione’s copyright group, the court has now created a distinction between computer code that is unquestionably copyrightable and code that is “further from the core of copyright” because it facilitates interoperability.

“This approach seems to blur the line between copyrightable and uncopyrightable code, on the one hand, and between copyrightability and fair use, on the other,” he explained.

The $9 billion lawsuit

The origins of the dispute began in 2005 when Google acquired Android to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE programme.

Oracle filed a complaint back in 2010, alleging that Google’s Android mobile operating system infringed Oracle’s patents and copyrights and demanded $9 billion in damages. Google countered that use of a software interface in the context of creating a new computer program constituted fair use.

A jury at the US District Court for the Northern District of California initially agreed, ruling that APIs were not subject to copyright protection.

But that judgment was ultimately overturned when the US Court of Appeals for the Federal Circuit revived the case, reversing the district court’s verdict.

APIs not traditionally copyrightable

Until this decision, APIs were traditionally not considered to infringe copyright.

But the appeals court stated that APIs should be considered in the same way “one would analyse copyrightability or fair use for a work of entertainment such as a book or screenplay”.

Google successfully petitioned the Supreme Court for certiorari, after it argued that APIs should not be copyrightable because they have little creative expression. According to the tech company, a win for Oracle would destroy the software industry, creating huge obstacles for developers who would be stumped with licensing fees to cover the simplest of programming tasks.

Conversely, Oracle garnered the support of the US government, which urged the Supreme Court to deny Google’s petition for certiorari. Oracle argued that the Supreme Court should uphold the Federal Circuit’s decision, arguing that a death of strong copyright protection would stifle innovation as companies would be disinclined to make large investments in new tech products.

The court found in favour of Google and Breyer’s majority opinion was joined by Chief Justice John Roberts, along with Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh.

However, Justices Clarence Thomas and Samuel Alito dissented. "Oracle's code at issue here is copyrightable, and Google's use of that copyrighted code was anything but fair," the justices argued. Justice Amy Coney Barrett did not participate.

Fair use now a viable defence

Jason Bloom, chair of the copyright practice group at Haynes and Boone, said the court had tried to minimise the far-reaching implications of its ruling.

“I think the court did its best to write an opinion that would address the immediate dispute without having far-reaching impacts on IP law or technology industries," he said.

But he predicted that the ruling would have significant ramifications for arguments around “fair use”.

Noted Bloom: “The court also explicitly stated that it was not modifying its existing fair use precedent. That being said, I think the opinion will have the effect of making fair use a more viable defence in the software context going forward, especially as applied to declaring code.”

Look out for further WIPR analysis, opinion and interviews on this story.

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26 February 2019   The Electronic Frontier Foundation has filed an amicus brief urging the US Supreme Court to review the long-running case between Google and Oracle.
Copyright
28 March 2018   The US Court of Appeals for the Federal Circuit has revived a billion-dollar copyright clash between Oracle and Google.