How Google’s Big Supreme Court Victory Could Change Software Forever

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The U.S. Supreme Court sided with Google this week in a major decision that some legal experts are hailing as a victory for programmers and consumers. The Court ruled that Google did not violate copyright law when it included parts of Oracle’s Java programming code in its Android operating system—ending a decade-long multibillion dollar legal battle.

The Court’s ruling in Google LLC v. Oracle America, Inc. upheld long standing industry practices that have furthered development of software that’s compatible with other programs, legal experts tell TIME. The ruling means copyright holders for software “can’t maintain a monopoly over critical interface aspects,” argues Jeanne Fromer, a professor of copyright law at New York University School of Law—and those aspects can be used by both users and programmers to more easily switch between products.

“This is huge for a vibrant tech industry to continue innovating,” says Fromer. “In fact, that’s what the tech industry has long been built on… if this [practice] had been forbidden, there’s so many things in fundamental aspects of software that we wouldn’t have today.”

The Court did not rule on the broader issue of whether the code in question could be copyrighted. Rather, Breyer wrote, “The Court assumes for argument’s sake that the copied lines can be copyrighted,” so it could focus on whether Google acted illegally. While a ruling on the copyright status “would have provided a clearer safe harbor for software developers,” writes Peter Menell, a professor of copyright law at University of California at Berkeley School of Law who filed an amicus brief in support of Google, it still “provides some assurance” for people looking to use a similar approach to develop products.

The case stretches back to 2005, when Google included roughly 11,500 lines of code from an Application Programming Interface (API)—a tool that allows applications to more easily communicate by drawing on pre-written instructions—in its mobile Android operating system. The Java API had been developed by Sun Microsystems, which Oracle purchased in 2010.

Oracle filed its lawsuit against Google later that year, seeking as much as $9 billion in damages. Google contended that its use of the code was covered by the doctrine of “fair use”—which allows copyrighted material to be used by other parties without permission if it’s within the public’s interest, such as when the use is “transformative” or limited. A federal circuit court ruled in Oracle’s favor in 2018, deciding that Google’s use of the technology was illegal.

The Supreme Court overturned that decision on Monday in a 6-2 decision, with Justice Stephen Breyer writing the majority opinion and Justice Clarence Thomas and Justice Samuel Alito dissenting. (Justice Amy Coney Barrett did not participate as she was not yet on the court when the case was argued in October.)

In his opinion, Breyer wrote that Google’s use of the Java 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 protected under fair use. Java was one of the most widely used programming languages at the time, and Google copied the lines to “allow the millions of programmers familiar with the Java programming language to work with its new Android platform,” he continued.

The 11,500 lines was only about 0.4% of the total Java code—which comprises around 2.86 million lines in total, he continued. And while Java was originally most used on desktop and laptop computers, Google used the API to make a whole new—and eventually widely popular—mobile operating system, which Breyer argued was “transformative.”

In his dissent, Thomas criticized the Court for avoiding what he viewed as the larger question.

“The Court wrongly sidesteps the principal question that we were asked to answer: Is declaring code protected by copyright? I would hold that it is,” he wrote. “The majority purports to save for another day the question whether declaring code is copyrightable. The only apparent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable.

“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,” Thomas continued. “If these effects on Oracle’s potential market favor Google, something is very wrong with our fair use analysis.”

In response to Monday’s ruling, Dorian Daley, the executive vice president and general counsel of Oracle, said in a statement that 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,” he continued. “This behavior is exactly why regulatory authorities around the world and in the United States are examining Google’s business practices.”

In its response to the decision, Google 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.”

While good news for developers looking to further interoperability of programs, the ruling might also help consumers, Lori Andrews, a professor of law at the Chicago-Kent College of Law, says in an email. Software underpins more and more aspects of society, and allowing fair use access to copyrighted code could potentially “allow challenges to any discriminatory factors built into the code” in the future, she argues.

But the ruling doesn’t necessarily mean software developed in a similar manner will always be protected under fair use. “Given the fact-specific nature of fair use, there remains some risk that some efforts to build [interoperable products]—partial or full [interoperability]—could be deemed insufficiently transformative,” Menell warns in an email.

Reusing some aspects of APIs is also a “longstanding” practice in the software industry, says Former, who argues it explains “some of the wide success” of the industry because it “makes software more available, and makes it easier for people to switch to better products.”

The Supreme Court has now affirmed Google’s use of that practice in the highest court in the land, in a ruling that could help “the software industry to continue to grow and not get stuck in obsolete programs or standards,” she continues. “So the ruling today is a huge victory for computer programmers and users, which is just about everyone these days.”

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