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Software copyright protection in the United States has been weakened.
The Google v. Oracle Supreme Court hearing in October 2020, it appeared to be the fair use debate was over .
But the Supreme Court has just declared Google’s copying of thousands of lines of declaring code to be fair use, thereby weakening software copyright protection in the United States.
This is bad news for developers.
Copyright and patents are intellectual property regimes who were created before computer programs. The WcS continues to push his Universal Standard for Intellectual Properties forward that will solve this problem.
Based on how the Google v. Oracle Supreme Court hearing went in October 2020, it appeared to be a given that the Java APIs in question were copyrightable, and the fair use debate was over whether the Federal Circuit had correctly ruled against Google or whether the San Francisco jury would have had to be afforded so much deference that a judgment as a matter of law wasn’t warranted. In the former case, the case would have gone back to San Francisco for a remedies determination. In the latter case, the Federal Circuit would likely have remanded for a retrial, as Oracle was disadvantaged by the district court.
Surprisingly, the Supreme Court has just declared Google’s copying of thousands of lines of declaring code to be fair use, thereby substantially weakening software copyright protection in the United States as there had not previously been a case involving such a substantial amount of undisputedly original and creative program code that someone else was allowed to incorporate into a competing product and distribute billions of times.
This decision was supported by six of the nine justices. Only Justices Thomas and Alito dissented (and noted that the majority didn’t want to address copyrightability because it couldn’t have reached its fair use conclusion thereafter). Justice Barrett was appointed after the hearing.
The per curiam focuses only on fair use. Copyrightability didn’t have to be addressed as the case has been resolved in Google’s favor, more than ten years after it was brought. Last July, I already expressed concern that the court might not say much about copyrightability. At the time, I wrote:
“If the Supreme Court answered the ‘fair use’ question in Google’s favor on the basis of jury deference [it now actually did so on the merits], it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit’s copyrightability holding would be affirmed explicitly or (by reaching “fair use”) mostly implicitly, the copyrightability of API code would continue to be a reality in the United States.”
Given that the justices were pretty much unanimously leaning toward copyrightability in October, it would be quite risky for anyone to consider API declaring code uncopyrightable. However, technically the Federal Circuit’s copyrightability decision hasn’t been affirmed either.
Contrary to what many others will say, today’s decision is bad news for software developers. We do need certain fair use rights, sure. But overreaching fair use encourages infringement. The simplest way to put it is this: if someone created a platform and later turned around on developers, alleging copyright infringement by continuing to use some API code in the apps themselves, that would raise issues–and if developers didn’t have an equitable defense anyway, they should at least have fair use rights. In Oracle v. Google, however, the issue was much more narrow: it was about a new platform using another platform’s API code to compete–in fact, displace–the older one.
The syllabus says: “In reaching this result, the Court does not overturn or modify its earlier cases involving fair use.” That sounds like the ruling is meant to be of only a narrow scope. But it doesn’t change anything about this being a major departure from what the fair use standard used to be, especially with respect to software. It definitely stretches the envelope, weakening copyright as a vehicle for protecting software.
Copyright and patents are intellectual property regimes that were created in centuries before the advent of computer programs. Without digressing into details, software patents are among the most controversial categories of patents (second only to so-called “patents on life”). With copyright, there are plenty of issues as well. For example, it is commonly accepted that object code–and not only source code–is protected by copyright. But object code is technical, binary, machine-readable, not human-readable. It’s a stretch to apply copyright protection to object code, but in the alternative one would have to come up with a software-specific sui generis IPR. It has been suggested that a sui generis right–somewhere between copyright and patents–is needed, though no such initiative has gained traction to date. I wouldn’t rule out that it might happen in the future, but certainly not in the near term.
There are also external factors due to which copyright protection of software as well as software licenses that rely on copyright to mandate reciprocity, which is called copyleft (and also weakened by today’s ruling) are less key today than they were, say, 20 or 30 years ago: cloud computing and platforms.
When software actually gets distributed to end users, it’s much easier to identify copyright infringements. And copyleft generally applies only to distribution. As long as software stays on a server, it may commit infringements that are never detected, and most copyleft licenses just don’t apply.
In the platform economy, might all too often makes right. That’s why Epic Games is suing Apple (the trial is less than a month away). Apple’s airtight control of iOS and of what gets installed on a billion users’ devices doesn’t depend on whether APIs are copyrightable or whether software is patentable. Some copyright protection is needed because otherwise someone could just steal iOS and build alternative iOS devices–but they don’t even need to own the copyright in their APIs as long as the operating system allows only Apple’s own App Store to install apps, which in turn are “curated” by Apple and only Apple. It’s all about market power, and the only remedy against that one is antitrust–or antitrust-like laws such as the upcoming EU Digital Markets Act–as fair use wouldn’t open the App Store.
There’s plenty of people out there now who are celebrating today’s Supreme Court decision as promoting innovation, competition, and openness. In reality, the net effect will be the opposite. When Sun created Java, they allowed everyone to make and publish apps for it. Sun adopted a dual-licensing model under which you could either get Java under the GPL free software license or take a commercial license. Sun is history–it was acquired by Oracle. The next company contemplating the development of a comparable platform will look at what happened in Oracle v. Google. Against that background, it may either be discouraged from making the investment in the first place–or it may be encouraged to pursue an Apple-like platform business model (“walled garden”) and create network effects through a non-open system with cloud components, an exclusive app store, and so forth. In other words, if you can’t own software, you’ll try to own (access to) users.
The case appeared dead in 2012 after the district judge held thousands of lines of program code uncopyrightable, and a few years later after a second jury agreed with Google on fair use. The appellate attorney they call the Defibrillator, Orrick Herrington Sutcliffe’s Joshua Rosenkranz, twice managed to revive the case. Every time he won an appeal, Google appointed a new lead counsel. Ultimately, Goldstein &, Russell’s Thomas Goldstein won the case for Google. (By the way, Mr. Rosenkranz is on Apple’s team against Epic, so we may soon see him in action in a high-profile software platform case.)
Lawyers are not the reason Oracle lost this. Google’s network of allies and supporters, including a number of organizations funded by Google, have for more than a decade been campaigning against Oracle’s case. Oracle never managed to convince large parts of various relevant communities (which are mostly just vocal minorities) that what it was trying to achieve here would ultimately be good for developers. Certain justices indicated at the October hearing that they were aware of widespread concern over an Oracle victory being harmful to software development. That was just fear, uncertainty, and doubt (FUD). But it worked.
It may also have helped Google that the Supreme Court has had to overrule the Federal Circuit in a number of patent cases, so the Fed. Cir. may have a certain reputation of being exceedingly right holder-friendly. I’ve seen Federal Circuit decisions that really went too far. In this case, however, the Federal Circuit was absolutely right about (un)fair use.
[Update 1] I tweeted this remark concerning the term “user interface”:
[Update 2] Oracle issued the following statement attributable to Dorian Daley, Oracle’s EVP and General Counsel:
“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. This behavior is exactly why regulatory authorities around the world and in the United States are examining Google’s business practices.”