Yesterday, the Supreme Court of the United States handed down its long-awaited ruling in the case of Google v. Oracle. Dubbed by Google as the “copyright case of the decade” the decision was an unmitigated victory for Google, bringing a decisive end to more than ten years of litigation between the two tech giants and possibly marking a broad expansion of fair use.
However, the decision has left a lot of copyright watchers scratching their heads, myself included. Not only did the decision completely punt on one of the most important issues that was brought before the court, but the ruling itself seems like a broad expansion of fair use that the court is attempting to make extremely narrow.
It’s a truly bizarre ruling in many respects and one that is going to have lasting impacts on copyright litigation, whether or not that was the goal of the Supreme Court.
As such, it’s worth taking a few minutes to try and break down the ruling and try to understand what the Supreme Court said and how that may impact future cases.
To start with, we first need to look at the history of this case itself to understand the questions the Supreme Court was supposed to answer for us.
A Brief History of the Case
Note: For a more extensive (but still somewhat brief) history on this case, you can read my previous article from 2013.
In 2005, Google purchased Android Inc. and, along with it, the Android mobile operating system. It quickly set about work developing the operating system and, as part of it, wanted to include Java libraries so Java applications could run in Android.
Google approached Sun Microsystems, which developed and owned Java at that time, but the two sides did not reach a licensing deal and Google ended up developing its own software development kit but copied part of the Java APIs, which would ensure that existing Java applications could work on Google’s new platform and Java developers would have an easier time coding for Android.
Sun seemed satisfied that Google didn’t require a license for what it did but when Oracle bought Sun in 2009, they disagreed and, in August 2010, filed a lawsuit against Google claiming copyright infringement.
The case hinged on two questions:
- Is the Code at Issue Copyright Protected? Though the Java language has over 2.8 million lines of code, only about 11,000 were copied and those copied lines were APIs, not functional code. Many argued that APIs did not qualify for copyright protection, arguing that it more akin to a phone book than a regular computer program.
- Was the Copying Fair Use? If the code can be protected by copyright, was the copying of it a fair use? Once again, only a small percentage of the code was copied, but it was argued that it is amongst the most important code as it is what other programmers interact with.
In two separate trials, Google won on both issues at the lower court. However, both of those issues were overturned by the Federal Circuit Court of Appeals.
This, in turn, led to the appeal to the Supreme Court, which the Supreme Court agreed to hear and issued its ruling on yesterday.
The Google v Oracle Ruling
When the Supreme Court took the case, they said they were going to answer more or less the same two questions above: Can the code at issue be protected by copyright? And, if it can, was the copying a fair use?
However, the court only actually answered one of those questions: The second. It skipped the issue of whether the specific code could be protected by copyright and only looked directly at the fair use issue.
That said, the court did say that the code in question is “inherently bound together with uncopyrightable ideas” but still declined to say whether the code itself is protected by copyright
Under the law, there are four factors that determine whether a use of a copyright protected work is a fair use or not. Those factors are:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
Of the four factors, the first and the fourth are considered the most important so the court spent the lion’s share of its time on those two.
In both of those factors, the court found in favor of Google but the logic in doing so has raised eyebrows among many copyright watchers.
Factor 1: Transformative Use
The first factor, normally, looks at whether the new use is an attempt to transform the work into something new or create a substitute of the original. For example, a review of a book is a very different kind of work than the original novel.
In this case, however, the Supreme Court expanded its analysis of the factor to look beyond mere transformation.
Rather, in determining whether a use is “transformative,” we must go further and examine the copying’s more specifically described “purpose[s]” and “character.”Google v Oracle Majority Opinion
To that end, the court found that Google was creating a new language, one targeted at mobile users, and the aim of the copying was to simply make it easier for programmers to write for it.
As such, the court was convinced that Google’s copying was transformative and that this factor should weigh in favor of Google.
Factor 4: Economic Impacts
The fourth factor looks at the harm to the potential markets for the original work if the copying is permitted. here, the court did find that Google’s copying did not have significant impacts on Sun and Oracle’s market for Java.
The court noted that Sun had positioned Java as a language for desktops and laptops, not mobile devices and further quoted Sun’s former CEO when discussing Sun’s failure to break into the mobile market.
When Sun’s former CEO was asked directly whether Sun’s failure to build a smartphone was attributable to Google’s development of Android, he answered that it was not.Google v Oracle Majority Opinion
However, the court did not stop there, it continued the examination and found that they also had to consider the risk of harm to the public and found that allowing Oracle to enforce its copyright in this manner would be counter to the objectives of copyright.
Finally, 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.Google v Oracle Majority Opinion
As a result, the court found that the fourth (as well as all other factors) favored Google and that Google’s copying was a fair use as a matter of law.
Additional Thoughts and Notes
Normally, when I read a Supreme Court decision, even one I disagree with, I feel like I walk away with a new sense of certainty and clarity. I don’t feel that here.
This ruling smacks of working backwards. The justices in the majority clearly felt that Google was in the right but was unsure how, using the existing fair use factors and case law, to get to the desired outcome. It’s an outcome that could have been simply reached by simply ruling that the code was not protectable by copyright, but the court chose to do it through a fair use analysis.
The court seems to be aware of this and tries to walk back some of the potential impacts of this ruling in the opinion itself. When looking at the fourth factor, the court said:
We do not say that these questions are always relevant to the application of fair use, not even in the world of computer programs. Nor do we say that these questions are the only questions a court might ask. But we do find them relevant here in helping to determine the likely market effects of Google’s reimplementation.Google v Oracle Majority Opinion
However, it’s unlikely that this ruling will remain as narrow as the court hopes. While it is a very fact-specific ruling that the court tries to apply to just this case, the broad reading on transformative use and the discussion of public harm as part of the economic impacts will likely be used by other defendants sooner rather than later.
Another element that is likely to have major impacts down the line is that the Supreme Court found that fair use questions are largely questions of law, not fact, meaning that they are to be weighed primarily by judges and not juries. This also sets it up for appeals courts to be more aggressive in overturning fair use decisions by juries, as the Appeals Court did in this case.
In this case the Federal Circuit carefully applied the fact/law principles we set forth in U. S. Bank, leaving factual determinations to the jury and reviewing the ultimate question, a legal question, de novo.Google v Oracle Majority Opinion
Though the court agrees there are factual questions as part of the fair use analysis that juries can and should resolve, the legal questions can and should be decided by judges, including Appellate Court judges.
In the long term, this could actually matter far more than actual fair use decision itself, especially if lower courts adopt a narrow view of it and apply it just to the specific facts of this case.
The court is clear about how narrow it wants this ruling to be interpreted. It wants it to apply to this specific case and, at most, to computer code.
Generically speaking, computer programs differ from books, films, and many other “literary works” in that such programs almost always serve functional purposes.Google v Oracle Majority Opinion
According to the court, this functional purpose of code justifies the unique (and more lenient) fair use analysis, but that analysis should not be assumed to apply to other creative works. However, it’s hard to see how that won’t at least be attempted.
But even if the fair use analysis itself is never applied to other kinds of works, it will definitely be applied to computer code and other elements of the ruling, in particular the ruling that fair use is a question of law, will apply more broadly.
Ultimately, this ruling is going to have drastic impacts. If for no other reason than the fact the Supreme Court weighs in on fair use so rarely that every time it does it creates a new bellwether moment.
This will not be the last we talk about this ruling, but we won’t really know the importance of it until we are able to look back on the cases it changed and altered.
As with most things from the Supreme Court, the importance will only become visible through hindsight.