On April 5, 2021, the Supreme Court handed down its opinion in Google LLC v Oracle America, Inc. Almost all of the reporting on this is terrible because the journalists covering it lack understanding of copyright and of programming. I understand both, so let me explain what’s going on here.
Justice Clarence Thomas’s dissent (cleaned up) is very clear on exactly what led to this lawsuit:
By 2005, many companies were racing to develop operating systems for what would become modern smartphones. Oracle’s strategy had successfully encouraged millions of programmers to learn Java. As a result, Java software platforms were in the vast majority of mobile phones. Google wanted to attract those programmers to Android by including in Android the declaring code with which they were now familiar. But the founder of Android, Andrew Rubin, understood that the declaring code was copyrighted, so Google sought a custom license from Oracle. At least four times between 2005 and 2006, the two companies attempted to negotiate a license, but they were unsuccessful, in part because of “trust issues.”
When those negotiations broke down, Google simply decided to use Oracle’s code anyway. Instead of creating its own declaring code – as Apple and Microsoft chose to do – Google copied verbatim 11,500 lines of Oracle’s declaring code and arranged that code exactly as Oracle had done. It then advertised Android to device manufacturers as containing “Core Java Libraries.” Oracle predictably responded by suing Google for copyright infringement.
Justice Stephen Breyer, writing for the court, focuses on the question of fair use. That is, he analyzes whether Google is entitled to use an existing copyright exception. Writing for the court, he said yes, Google’s use of Java was fair use, and so Oracle loses.
As Thomas emphasizes in his dissent, Breyer focuses on fair use to the point where he virtually assumes that the declaring code (headers, etc.) of Java is in fact copyrighted. But that itself is an important question: before we can decide whether Google’s use of Java declaring code is fair use, we first must decide whether Oracle’s Java declaring code is copyrightable.
Of course both Breyer and Thomas agree that the Oracle code is copyrightable. That’s important because we have to consider what that means. Why might headers be copyrightable? Answer: they are an invention in themselves. A programming interface is something one must design and implement. Convincing people to use your interface takes work, and implementing it on multiple platforms is an investment that should be rewarded with protection. That’s what copyright is all about.
Now that we understand the value of the Java declaring code, we must look at the question of fair use in that light. What is fair use, and what entitles its invocation? Simply, fair use is a a copyright exception that allows people to excerpt copyrighted works for various purposes, for the greater good in a way that doesn’t conflict with the greater good of copyright itself. Fair use in court comes down to a four point test that Breyer says Google passes, but Thomas says Google fails.
Breyer however turns fair use on its head. Breyer states that because the Java headers are an interface, therefore they deserve less copyright protection than other code. And simultaneously, Breyer states that the outright copying of thousands of lines of headers is a “transformative” work simply because Google put them into a competing product. Android’s use of Google is derivative, not transformative. It’s used in the same way, in a new product.
If Chevy invents a new transmission, and puts it into a Silverado, is it new and innovative for Ford to turn around and put a copy of that transmission into an F-150? Of course not. That’s simply one company copying another’s work to nullify a competitive advantage. That is what Google did, both in my opinion and that of Justice Thomas (cleaned up):
The majority acknowledges that Google used the copied declaring code “for the same reason” Oracle did. So, by turns, the majority transforms the definition of “transformative.” Now, we are told, “transformative” simply means — at least for computer code — a use that will help others “create new products.” (Google’s copying “can further the development of computer programs”).
That new definition eviscerates copyright. A movie studio that converts a book into a film without permission not only creates a new product (the film) but enables others to “create products” — film reviews, merchandise, YouTube highlight reels, late night television interviews, and the like. Nearly every computer program, once copied, can be used to create new products. Surely the majority would not say that an author can pirate the next version of Microsoft Word simply because he can use it to create new manuscripts.
Ultimately, the majority wrongly conflates transformative use with derivative use. To be transformative, a work must do something fundamentally different from the original. A work that simply serves the same purpose in a new context — which the majority concedes is true here — is derivative, not transformative. Congress made clear that Oracle holds “the exclusive rights . . . to prepare derivative works.” Rather than create a transformative product, Google “profit[ed] from exploitation of the copyrighted material without paying the customary price.”
As usual, Clarence Thomas is right. The Supreme Court took existing rules and simply mis-applied them. Clarence Thomas explains exactly why they’re wrong, point by point.
If you’re really curious, just read his whole dissent. He gives you the key facts and how they matter in a clear and concise way.