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The US Supreme Court on Monday ruled in a 6-2 decision that Google's limited copying of Oracle's Java APIs in its Android operating system constitutes fair use under US law.

The ruling puts an end to a case that troubled the software industry for more than a decade and narrows the scope of copyright law as it applies to software.

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The court had two questions before it: whether software interfaces qualify for copyright protection and whether Google's use of Oracle's software interface code represents fair use, assuming the Java APIs can be copyrighted.

Oracle [2]filed its lawsuit against Google in 2010, claiming copyright and patent infringement for Google's use of Java APIs in Android. In 2012, after the patent claims had been dismissed, US District Court Judge William Alsup ruled that Oracle's Java APIs did not qualify for copyright protection. In 2014, the US Court of Appeals for the Federal Circuit disagreed. Google then asked the Supreme Court to review the decision but its petition was denied.

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Following the appellate ruling that APIs are copyrightable, a new trial was held to determine whether Google's use of Oracle's Java API could be excused as fair use, a defense against infringement claims under copyright law. In 2016, a jury found that Google's reuse of 37 Java APIs and 11,500 lines of copyrighted Oracle implementing code its Android operating system represented fair use.

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Oracle, however, appealed to the Federal Circuit and in 2018 the appeals court [5]reversed the jury's decision, ruling as a matter of law that Google could not avail itself of the fair use defense because its Android implementation of the Java APIs didn't meet the four legal criteria for fair use.

For assessing fair use, Copyright law requires consideration of: the purpose and character of the usage; the nature of the work; the proportion of the copied work in relation to the original; and the effect the copy has on the market for the original.

Thus the case was sent back to the trial judge to determine damages, which had been estimated at about $9bn.

In 2019, Google appealed again to the Supreme Court and its petition this time was [6]accepted . On Monday, six justices sided with Google – Breyer, Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh – and two – Thomas and Alito – dissented, with Justice Barrett not taking part in the decision.

"Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law," the majority opinion

[7]PDF

says.

Harsh words

Oracle, in a statement emailed to The Register , decried the ruling. Denied a copyright-granted monopoly on Java, Big Red characterized Google as a thief and a monopolist, citing the ad company's ongoing regulatory challenges to justify its disparagement.

"The Google platform just got bigger and market power greater — the barriers to entry higher and the ability to compete lower," an Oracle spokesperson said. "They stole Java and spent a decade litigating as only a monopolist can. This behavior is exactly why regulatory authorities around the world and in the United States are examining Google's business practices."

Google, meanwhile, celebrated the decision.

“The Supreme Court’s clear ruling is a victory for consumers, interoperability, and computer science," said Kent Walker, SVP of global affairs, in a statement. "The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers."

Walker expressed gratitude for the many organizations that supported Google's cause and advocated for its behalf during the years of litigation.

"The Court's decision suggests that the scope of copyright and computer programs is narrower than the federal circuit thought," said Pamela Samuelson, professor of law and information at the University of California, Berkeley, in a phone interview with The Register .

Samuelson said the court made its decision based on the question of fair use "but I don't see this as a repudiation of Judge Alsup's opinion on the copyrightability issue."

Indeed, the majority opinion specifically cites the functional nature of computer code as a complicating factor in determining what qualifies for copyright protection. "The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world," the opinion says.

The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world

Samuelson said the decision makes it more likely defendants will be able to win a motion to dismiss API copyright litigation for failure to state a valid claim.

In a statement emailed to The Register , J. Michael Keyes, a partner at law firm Dorsey & Whitney, described the ruling as the biggest copyright decision in a generation.

"The Court noted that fair use has 'an important role to play for computer programs by providing a context-based check that keeps the copyright monopoly afforded to computer programs within its lawful bounds,'" he said. "I suspect this theme will unlock many future arguments and claims regarding the application of fair use to software related claims. We will see more copying, more cases, and more claims of fair use."

Keyes in an email to The Register said that the Court left open whether declaring code is copyrightable. "The Court assumes that it is, but that 'assumption' will not bind future litigants," he said. "I assume we will see that issue come up again in future cases."

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For each part of the four part test, the majority of justices found Google's use of Java appropriate.

"Google’s limited copying of the API is a transformative use," the majority opinion states, further noting that the copied 11,500 lines only represent 0.4 percent of the 2.86m lines of code in the Java API. "Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language."

Keyes said the decision is also noteworthy because it revives a criteria for determining whether a copy of a work is transformative – the amount of effort required to create the copy.

"The greater the amount of time/money/effort that goes into making a work transformative is now an important component to consider," he said. "There is a bit of judicial irony here. The 'sweat of the brow' theory of copyright protection – i.e., copyright protection turns on how much one toiled to make a work – was rejected by the Court decades ago."

Asked whether the Court's focus on effort in the fair use calculation might make AI-generated works more susceptible to copyright claims, Keyes said, "I think AI-generated works would still be subject to fair use. Justice Breyer’s opinion really focuses on the transformative nature of the work and how different Google’s use was as compared to the original use of the Sun product. Transformation is the key. It certainly helped and was persuasive to the Court that the end result (i.e, the new Android platform) was the culmination of the efforts of 100 programmers and three years of effort!"

Also Twitter

In a separate order

[9]PDF

, the Supreme Court vacated a lower court ruling that Donald Trump, when he was US President, violated the Constitution by blocking people on Twitter. The court sent the case back to the Second Circuit Court of Appeals with the direction that the case should be dismissed as moot due to the change in US administration.

Justice Thomas, in a concurring opinion, takes the opportunity to push for limitations on digital platforms. He argues that legislators should consider classifying companies like Facebook, Google, and Twitter as public utilities, thereby limiting their ability to deplatform users.

"Yet Congress does not appear to have passed these kinds of regulations," he laments. "To the contrary, it has given digital platforms 'immunity from certain types of suits,' ... with respect to content they distribute [under Section 230 of the Communications Decency Act], but it has not imposed corresponding responsibilities, like nondiscrimination, that would matter here."

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Even so, Thomas concedes the Twitter case in question provides the Court with no opportunity to consider the questions raised. ®

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[2] https://www.theregister.com/2010/08/13/oracle_sues_google/

[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_software/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33YGuIedDhbgWtULzvF0WX-AAAAIA&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0

[4] https://www.theregister.com/2021/03/23/supreme_court_facebook/

[5] https://www.theregister.com/2018/03/27/oracle_apple_copyright_reversal/

[6] https://www.theregister.com/2019/11/15/google_oracle_supreme_court/

[7] https://www.supremecourt.gov/opinions/20pdf/18-956_d18f.pdf

[8] https://www.theregister.com/2020/10/07/google_oracle_api/

[9] https://www.supremecourt.gov/orders/courtorders/040521zor_3204.pdf

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