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The Supreme Court Just Sided with Google’s Copying of Thousands of Lines of Code. Justice Thomas Went Off.


The Supreme Court of the United States handed down a 6-2 opinion in favor of Google on Monday. The case is Google v. Oracle, and it has been pending at the Supreme Court since the fall of 2018. Justice Clarence Thomas (joined by Justice Samuel Alito) dissented, casting Google as something of a cyber-villain that unfairly lifted thousands of lines of code from Oracle. Justice Amy Coney Barrett took no part in the case, as it predated her time on the bench.

In the underlying lawsuit, Oracle accused Google of stealing approximately 11,500 lines of code from its Java software language for use in its Android smartphone operating system. Oracle said the copying amounted to copyright infringement.

Google defended itself by saying its copying had been “fair use,” and a California jury agreed. The U.S. Court of Appeals for the Federal Circuit, however, overturned that verdict. The Federal Circuit sent the case back to the trial court for a ruling on damages. The Supreme Court has now ruled in favor of Google, reversing the circuit court.

Much of the case hinged on specifics of computer programming, and the functionality of the precise lines at issue. Google copied the lines of code so that developers familiar with Java could access Android. The approximately 11,000 lines of code copied was “declaring” code that Google claimed was “purely functional.” Google (as well as the justices at oral arguments) raised the analogy of a traditional QWERTY keyboard layout — merely a system of organization.

This case, as most copyright disputes, raises two questions: 1) whether the copied work is copyrightable in the first place; and 2) whether the copying is allowable under the theory of fair use. Writing for the Court’s majority, Justice Stephen Breyer focused solely on the second question. On the issue of whether the lines of code were copyrightable, SCOTUS simply sided with the Federal Circuit, holding, “we assume, for argument’s sake, that the material was copyrightable.”

The Court’s analysis centered on fair use, with six justices (including Justice Brett Kavanaugh and Chief Justice John Roberts) ultimately deciding that Google’s use of the code was protected by the doctrine. Justice Breyer explained that the “declaring code” simply performed “an organizational function,” much like the Dewey Decimal System would organize books or a travel guide would organize tourist attractions.

Telling readers that fair use is a judge-made concept that should remain flexible, Breyer wrote, “courts must apply it in light of the sometimes conflicting aims of copyright law, and that its application may well vary depending upon context.”

“Thus, copyright’s protection may be stronger where the copyrighted material is fiction, not fact,” he continued, “where it consists of a motion picture rather than a news broadcast, or where it serves an artistic rather than a utilitarian function.”

As is typical for computer programs, noted Breyer, Google’s use of Oracle’s code was far more function than form. “Generically speaking,” he explained, “computer programs differ from books, films, and many other ‘literary work’ in that such programs almost always serve functional purposes.”

As a result, Breyer said, “applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.”

Moreover, Breyer stressed, allowing Google to use the lines of code for its own purposes furthers general objectives of technological progress. He wrote:

Here Google’s use of the Sun Java API seeks to create new products. It seeks to expand the use and usefulness of Android-based smartphones. Its new product offers programmers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative “progress” that is the basic constitutional objective of copyright itself.

Justice Thomas, however, saw things quite differently. He began his dissent with a reminder that Google had initially attempted to purchase a license to use Oracle’s coding. “But when the companies could not agree on terms,” he wrote, “Google simply copied verbatim 11,500 lines of code from the library.”  What happened thereafter, according to Thomas, was anything but “fair”:

As a result, [Google] erased 97.5% of the value of Oracle’s partnership with Amazon, made tens of billions of dollars, and established its position as the owner of the largest mobile operating system in the world. Despite this, the majority holds that this copying was fair use.

Moreover, Google didn’t have to copy the code. Apple and Microsoft, noted Thomas, simply wrote their own declaring codes instead of copying.

Like the majority, Thomas acknowledged that “Computer code occupies a unique space in intellectual property.” He continued:

Copyright law generally protects works of authorship. Patent law generally protects inventions or discoveries. A library of code straddles these two categories. It is highly functional like an invention; yet as a writing, it is also a work of authorship. Faced with something that could fit in either space, Congress chose copyright, and it included declaring code in that protection.

Thomas slammed the majority, however, for “inexplicably” ignoring the question of whether the computer code was copyrightable. “[The majority’s] sole stated reason is that ‘technological, economic, and business-related circumstances’ are ‘rapidly changing,'” dissented an unconvinced Thomas. “That, of course, has been a constant where computers are concerned.”

Thomas went on, railing against the majority’s “untenable” analysis, and correcting the Court in its erroneous understanding of the technology at issue. Thomas slammed the majority’s take, saying it “belittles declaring code by suggesting it is simply a way to organize implementing code.” “Declaring code,” corrected Thomas, “defines subprograms of implementing code, including by controlling what inputs they can process. Similarly, the majority is wrong to suggest that the purpose of declaring code is to connect pre-existing method calls to implementing code. Declaring code creates the method calls.”

Likening the lines of computer code to stage play, Thomas wrote:

A Broadway musical script needs actors and singers to invest time learning and rehearsing it. But a theater cannot copy a script—the rights to which are held by a smaller theater—simply because it wants to entice actors to switch theaters and because copying the script is more efficient than requiring the actors to learn a new one.

At the heart of Thomas’ dissent was a near-total lack of tolerance for Google’s behavior. Addressing the majority’s reasoning that Oracle could thwart progress by misusing its copyright and monopolizing the market, Thomas chastised, “If the majority is going to speculate about what Oracle might do, it at least should consider what Google has done.”

“But it is Google that recently was fined a record $5 billion for abusing Android to violate antitrust laws,” Thomas reminded the majority.

“Google controls the most widely used mobile operating system in the world,” he continued, “And if companies may now freely copy libraries of declaring code whenever it is more convenient than writing their own, others will likely hesitate to spend the resources Oracle did to create intuitive, well-organized libraries that attract programmers and could compete with Android. If the majority is worried about monopolization, it ought to consider whether Google is the greater threat.”

Thomas concluded with harsh words for both Google and the Court’s majority for allowing its behavior:

By copying Oracle’s work Google decimated Oracle’s market and created a mobile operating system now in over 2.5 billion actively used devices, earning tens of billions of dollars every year. If these effects on Oracle’s potential market favor Google, something is very wrong with our fair use analysis.

[image via MANDEL NGAN/AFP/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos