Google v Oracle
The Supreme Court’s decision in Google v. Oracle was expected to be the copyright “case of the decade.” Practitioners hoped the Supreme Court would conclusively answer the question of whether the “declaring code” of an API (and potentially the larger issue of software generally) can be protected by copyright at all, and to bring clarity to the hopelessly splintered law of “fair use.” Unfortunately, for every question the Court answered, it raised numerous others that throw what had been well-settled principles of copyright law into question, as well as likely creating unintended consequences that will run contrary to the Court’s desired result. The Google opinion thus likely made copyright law less settled, particularly in light of what it will likely generate.
The actual holding of the case was relatively straightforward. Despite it being undisputed that Google literally cut and pasted thousands of lines of the “declaring code” of the Java API, and the Court “assuming” (but not deciding) that such code was protected by copyright, Google’s unauthorized use of those thousands of lines of software code in its Android operating system was “fair use” as a matter of law. The Court further held that the fair use was a question of law for a judge, rather than a jury question. In reaching that decision, the Court emphasized the need to encourage creative progress, and all but dismissed or reinterpreted factors (commercial use, the qualitative and expressive nature of the work used, etc.) that had long been understood to cut against fair use.
In doing so, the Supreme Court has raised issues that litigants and lower courts will be grappling with for years, and that will likely undercut its objectives, including:
· First, while the Court’s holding was that use of the declaring code of an API was fair use as a matter of law, the next logical argument will be to argue that the copying of implementing code to create new products is also fair use. All of the Court’s policy reasons for finding fair use of declaring code will be argued to apply to implementing code as well, and there seems no logical basis for why they do not. This will be exacerbated by the fact that rather than declare, once and for all, whether or not software is protected by copyright (which as Justice Thomas’ dissent points out, the majority could not do without unravelling much of the reasoning of the opinion), the Court explicitly left the overarching question of the copyrightability of software unanswered.
· Second, the thrust of Justice Breyer’s opinion was that allowing widespread use of an API should be “fair use” because that promotes the rapid development of new products. Particularly given the uncertainty as to how far this holding will be stretched by lower courts (i.e., is implementing code similarly free for the taking?), rather than release API code to developers and rely on copyright law to control unauthorized use, software authors will likely instead keep their code secret and release it only to certain groups under nondisclosure agreements (which, if breached, could then be enforced as protecting trade secrets). Query whether such tighter control of such code will result in more and faster progress? Will a return to “walled gardens” encourage progress, particularly given the market power of industry leaders?
· Third, by eviscerating the “potential economic harm to the copyright owner” fair use factor – previously viewed as the most important, if not dispositive, factor – and dramatically expanding the scope of what is considered “transformative use,” the Court has opened the fair use door to creating competing products by simply appropriating the copyright owner’s work. While the Google opinion claimed that Android (mobile devices) was not a competing product to Java (desktops and laptops), as Justice Thomas’ dissent points out the majority opinion blithely ignored the existence of Java ME – which contained the same declaring code. Particularly given the broad language of the opinion, lower courts may well find that competing products are entitled to a fair use defense as well.
· Fourth, what does the opinion mean for derivative works – not only in the software space, but for any copyrighted work? If the touchstone of fair use as a matter of law is whether it encourages “creative progress” -- even when the use is commercial, in direct competition with the copyright owner, and involves the literal copying of a not insignificant amount of a work – then what is left of the exclusive right to create derivative works, and to prevent unauthorized others from doing the same? (In a recent webinar hosted by the American Intellectual Property Law Association, even Google’s Supreme Court counsel Tom Goldstein acknowledged that the Supreme Court’s opinion may severely erode copyright with respect to derivative works, generally.)
· Fifth, what will this mean for the development of new coding languages? Why would anyone commit the massive investment of resources required for a new language if industry behemoths such as Google can literally copy the “good” parts, develop their own competing product, and use their market dominance to crush the copyright owner’s products (such as Android has done to Java ME)?
The Supreme Court’s Google opinion is by far the most copyright-unfriendly decision in generations. It is consistent, however, with the current Court’s hostility to intellectual property rights, in general. Absent Congressional intervention, the decision likely will result in less, not more, innovation, and more market dominance by established players.