From Ronald Mann
on April 6, 2021
at 2:09 pm
Monday’s ruling in Google v. Oracle is a reminder that the Supreme Court can occasionally take a big case and actually decide! So many intellectual property cases reaching the judges reflect minor circuit disputes of mostly technical interest or result in a decision so narrow that it does little to develop the law. Google is not such a decision. Judge Stephen Breyer’s opinion for a 6-2 majority firmly rejects Oracle’s challenge to Google’s use of computer code by Google’s Java SE platform in its Android operating system, and the reasons it offers to justify that decision , will affect the future owners, developers and users of commercial software.
The case arose out of the Android operating system developed by Google for smartphones, which is now used in a variety of other devices (such as the Kindle Fire). When Google designed Android, it wanted to make it easily accessible to developers familiar with the Java programming language. Therefore, in the Android operating system, it contained approximately 11,500 lines of code from Java SE, a platform that allows developers to write programs in Java that can run on different devices. Some aspects of the decision concern technical aspects of software design and organization that I do not wish to elaborate in the hope that I can summarize the crucial aspects of the court’s reasoning in relatively accessible terms. However, to understand why the court allowed Google to copy this code, it is necessary to know a little about the organization of Oracle’s Java SE platform (originally created by Sun Microsystems). An important part of this platform are the thousands of methods developers may want to use on their software programs. Breyer’s opinion uses the example of a method called “max” that returns the larger of two numbers listed.
Java SE uses three different types of code to implement the methods it contains. The first is the “call” that programmers enter when they want to use a method. Breyer’s opinion relates to the function “max”, for example, which would return a maximum of two numbers if the programmer entered the call java.lang.Math.max (4, 10). The second is the declaring code that Java SE uses in response to a call to find the method identified by the call. The third is the implementation code that actually solves the problem (in this case, we need to find out if 4 is greater than 10). When creating Android, Google wrote new implementation code for all of the methods in it. For many of the methods included in Java SE, however, both the call and the declaring code have been copied. (You could imagine that phrases like “Open Sesame” were reused, but the mechanisms for opening and closing doors were recreated.) Although a jury felt that this was a “fair use” of the Java SE code , The U.S. Court of Appeals disagreed with the Federal Circuit, believing that the code being copied was copyrighted and that it was not fair for Google to copy it.
Much of the dispute took into account Google’s argument that the calls and declaring code aren’t even copyrighted. In general, Google argued that these pieces of code are so functional that they are insufficiently meaningful to ensure copyright protection, and stressed the provisions of copyright law that prohibit the protection of any process, system, or method of operation. Breyer’s opinion is very clear when he refuses to answer this question, assuming “just for reasoning” that the code in question is copyrighted. For the majority, the case revolves around the conclusion that what Google did with the Java SE code is “fair use” under copyright law, even though the code in question is copyrighted. The fair use provision is notoriously vague and requires an unspecified balance of four relatively indeterminate factors that the law establishes. The majority opinion strategy is to explain that each of these four factors speaks in favor of a fair use determination, which forces a determination that Google’s behavior was fair. In other words, the court believes that the circumstances make Google’s behavior so clearly fair use because of the circumstances that the jury’s determination of fair use is largely irrelevant.
The first factor the court takes into account is “the nature of the copyrighted work”. At this point it is crucial that the code copied from Google is a “user interface” which is (in Breyer’s words) code “through the user (here the programmers) … execute and control computer programs that do the work”. Breyer explains that for the sake of fair use, the user interface is different from the “uncopied implementers” as they embody “different kinds of functionality”. On the one hand, “write[ing] Implementing programs … requires weighing up considerations of how quickly a computer can perform a task or the likely amount of computer memory. The creativity that was required to develop the Android software for use not in laptops or desktops, but in a completely different context from smartphones. Breyer, on the other hand, describes the user interface as “inherently linked to non-proprietary ideas (general division of responsibilities and organization)” and something for which “value comes in large part from the value that those who do not have copyrights” namely, computer programmers invest their own time and effort learning this [interface]. ”Because of this distinction, which is largely related to the“ capabilities ”of the various code types, Breyer justifies that“ the declaring code, if at all protected by copyright, is further removed than most computer programs (such as the implementation code) from the core of copyright © . “
The second factor that the court takes into account is the “purpose and nature of the use”, specifically the extent to which the copier “adds something new, with another purpose or another character” that can be considered “transformative” . For example, the court’s most famous position on the matter was that a parody of a Roy Orbison song was used fairly because it “is necessary[ed] to imitate an original in order to clarify one’s point of view. “The court emphasizes two points on this point. The first is “Google’s use of Sun Java [interface] … In order to expand the use and usefulness of Android-based smartphones, ”which Breyer calls“ creat[ing] a new platform easily used by programmers, ”an activity he sees as“ in line with the creative “advancement” that is the fundamental constitutional goal of copyright itself. “The second is that Google has limited the use of Java SE code to copying,” only … as needed to include tasks that would be useful in smartphone programs “and” as needed to allow programmers to do those tasks can call without … discarding a familiar. ” Programming language. “To the court, it is largely critical that Google” provided a new set of tasks to be performed in a particular computing environment. ”
The court next examines the “quantity and materiality” of the copied material. This factor largely involves a basic problem. Eleven thousand lines of code is quite a bit of code, “practically all of the declaring code that is required to perform hundreds of different tasks.” However, it is only a tiny fraction (about 0.4%) of the 2.86 million lines of code in the corresponding Java program. The court’s earlier decisions emphasize the subjectivity of the materiality determination, including one memorable case in which it was deemed unfair to “scoop” the publication of a tiny portion of Gerald Ford’s memoir because the copied portion is the “heart” of Ford’s “creative” Phrase “contained” (Ford’s explanation of why he pardoned President Richard Nixon). Here the court concludes that “the better way to look at the numbers is to take into account the millions of lines that Google did not copy,” mainly because the Java SE interface “is inextricably linked with th[e] task-implementing lines “that Google did not copy. Breyer goes more abstract, emphasizing, “Google didn’t copy these lines for their creativity, their beauty, or even (in a sense) their purpose. It copied them because programmers had already learned to work with them [Java SE]and it would have been difficult … programmers for … Android … without them to gain. “Since“ the copying effort was tied to a valid and transformative purpose ”, the“ materiality ”factor in this case“ should be weighed in favor of fair use ”.
The fourth and final factor is the most difficult, the market effect of copying. Breyer makes two general points. First, it’s not at all clear that Java SE would ever have been successful in the smartphone market. Breyer suggests that Java software was originally intended for simpler products like the original Kindle and “feature” phones, but could not be easily adapted for touchscreen devices like modern smartphones and the Kindle Fire. From this perspective, Android should not be seen as a “market replacement for Java’s software”, but rather as a “mobile operating stack” [that is] a very different type of product. “Breyer suggests that Google (and Android) are not responsible for this decline. Perhaps more importantly, the court fears that “Oracle’s copyright enforcement here could endanger the public” because it would “make the … declaring code a lock that limits the future creativity of new programs [to which] Oracle alone would hold the key. “Ultimately, this ban on the court would not further undermine the fundamental creativity goals of copyright law. Accordingly, the court is “to be convinced[d]”That the last factor” weighs in favor of fair use. “
This short post goes into much of Breyer’s opinion and says nothing at all about the criticism of Breyer’s analysis of Dissent of Justice Clarence Thomas (along with Justice Samuel Alito), which Breyer graciously describes as “thoughtful”. Scientists and lower courts will no doubt ponder their implications when they apply them to the incessant spate of disputes over the limits of reuse and redistribution of software code. I hope this brief description gives an idea of what is sure to be a milestone in copyright law in the decades to come.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among counsel for Google in this case. The author of this article is not affiliated with the firm.]