- The Washington Times - Monday, April 5, 2021

The Supreme Court on Monday ruled 6-2 for Google in its years-long copyright fight with Oracle

At issue were more than 11,000 lines of computer code, which Oracle said Google stole when it was creating its Android operating system. Supreme Court Justice Stephen G. Breyer wrote the majority opinion that ruled Google’s copying was a “fair use” of Oracle’s computer code, which he said the justices assumed was capable of being copyrighted. 

“Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy,” Justice Breyer wrote.

Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose,” he wrote. “It copied them because programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.” 

Justice Breyer was joined by the liberal bloc of justices as well as Chief Justice John G. Roberts Jr., Justice Neil M. Gorsuch and Justice Brett M. Kavanaugh. The case was argued before Justice Amy Coney Barrett joined the court, and she did not participate in its ruling. 

Justice Clarence Thomas wrote a dissent joined by Justice Samuel A. Alito Jr. that said the majority opinion’s “fair use” analysis was inconsistent with copyright protection for computer code provided by Congress. 

“By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis,” Justice Thomas wrote. “Properly considering that statutory text, Oracle’s code at issue here is copyrightable, and Google’s use of that copyrighted code was anything but fair.”

Google’s chief legal officer, Kent Walker, called the ruling a “victory for consumers, interoperability and computer science.” 

“The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers,” Mr. Walker wrote in a statement.  

Oracle’s chief legal officer, Dorian Daley, condemned the outcome. “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,” she wrote in a statement.

Google’s critics also criticized the court’s decision. The conservative Internet Accountability Project said it thought Justice Thomas’ dissent had the law right and called for new congressional action to undo the Supreme Court’s decision. 

“Legislating is tough business, and the court has once again proven the Founders correct that it’s not very good at it,” said Mike Davis, Internet Accountability Project founder, in a statement. “The Internet Accountability Project calls on Congress to rewrite the Supreme Court’s rewrite of our Copyright Act, returning it back to its original purpose of protecting intellectual property from theft and promoting innovation.”

The court’s decision will spook content providers, said William H. Frankel, shareholder at intellectual property law firm Brinks Gilson & Lione. 

“The decision in this case creates some unsettling precedent for [application programming interface] software developers concerned about software copyrightability and for content providers concerned about defending against fair use arguments,” he said in a statement. “However, from a policy standpoint, there is some logic to not making software developers reinvent the wheel, and spend money to create identical functionality using different forms of expression.” 

 But many other tech companies were relieved after the decision.

The Computer & Communications Industry Association, a major trade group, was among the technology voices celebrating the Supreme Court’s decision. The court decision also will be welcome news to independent software developers, small startups and others who are tinkering with code, said Tiffany Li, a visiting law professor at Boston University.

“This decision probably won’t change how startups and software developers operate. It just kind of confirms how they’ve been operating already,” Ms. Li said, adding that an Oracle win could have harmed many developers because it would have been contrary to how the community currently functions.

This article is based in part on wire service reports.

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