On Monday, the U.S. Supreme Court handed down a ruling in Google v. Oracle that still has many in the intellectual property world reeling—and not just copyright practitioners. The Court found a way to both accept without examination the Federal Circuit’s holding that the declaring code copied by Google was copyrightable and to reverse the Federal Circuit’s ruling in favor of Oracle, explaining that Google met the fair use exception to copyright law. The Court did this in part by asserting that computer programs are different when it comes to copyright protection, and further from “the core of copyright” than other kinds of works.
In his own analysis of the decision, IPWatchdog Founder and CEO Gene Quinn said that there’s no longer much point in copyrighting software following this ruling, and called the Supreme Court’s opinion “a travesty of the first order” that gives companies a license to copy.
Below are some additional thoughts from stakeholders who either reached out to us independently or who we asked for comment.
Darius C. Gambino, Saul Ewing Arnstein & Lehr
Justice Alito has been on a roll lately in intellectual property cases. In the U.S. v. Arthrex oral argument, he had the right [view] of things, noting that the Court could save the Patent Trial and Appeal Board by simply adding Director oversight. During the oral argument in NCAA v. Alston last week, in defending student athletes’ rights of publicity, he astutely pointed out the discrepancy between the salaries of college coaches and college players. Now, he joins Justice Thomas’ dissent in Google v. Oracle, which convincingly argues that the Court incorrectly applied the four copyright ‘fair use’ factors in finding for Google.
Google v. Oracle is the first major copyright decision since the Court took on The 2 Live Crew and their alleged parody of Roy Orbison’s “Oh, Pretty Woman.” Even though The 2 Live Crew used the opening lyrics, vocal hook and lead guitar riff from the Orbison song in their version, the Court found their use was fair. In a decision that will likely be critiqued and analyzed even more than Campbell v. Acuff-Rose Music, the Court held that Google’s use of “virtually all” of the “declaring code” of Oracle’s Java Application Programming Interfaces (API) was a fair use of the software. While I’m sure Google does not want to be compared to The 2 Live Crew, the parallels between the cases are certainly notable.
Google’s multibillion-dollar exposure troubled technology industry participants, and this clears up a lot of the uncertainty. Use and reuse of APIs is necessary so that software is interoperable, and it drives innovation in software technology. This point was made in many of the amicus briefs submitted to the Supreme Court. This Court recognized that giving very strong copyright protection to APIs would stifle innovation, particularly as software evolves and moves from older platforms to newer ones. However, Oracle was in many ways the victim of its own success as its system became so widely known that it became a standard available to programmers working on a different class of devices.
Joshua Lamel, Executive Director, Re:Create
Today’s Supreme Court decision is a win for fair use, computer programmers and American consumers. The court makes it clear that programmers can use declaring code without permission as a fair use in order to write their own new, creative implementing code. Copyright’s purpose is to promote, not hinder creativity, and the Supreme Court reaffirmed the importance of fair use in finding that balance. It made clear that Oracle’s attempt here would have had a negative impact on the creativity of programmers.
The court affirms an important point: aggressive, over-enforcement of copyright hinders creativity and goes against the purpose of copyright. Fair use serves as a guard rail against anti-creativity enforcement attempts.
While we are disappointed the court did not determine if declaring code is copyrightable to begin with, the court makes it clear in its 6-2 decision that, “In our view, for the reasons just described, the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright.”
Chad Rutkowski, BakerHostetler
The decision is remarkable from stem to stern. It—a) greatly limits the role of juries in determining fair use; b) endorses implicitly the Google Books/Hathi Trust/Vanderhye line of Circuit Court fair use cases that a change in platform or context of use can be transformative under the first fair use factor; c) reinforces that commercial purpose alone will not outweigh a fair use if the use is otherwise transformative; d) leaves intact the Federal Circuit’s reinvigoration of protection for the “non literal elements” of source code, particularly protection for sequence, structure, and organization; and e) leaves open an important copyright merger question, particularly, at what point in time should the merger question be examined—at the time the author created the work and was faced with numerous creative choices, or after the work has gained adoption.
Ultimately, I think the Court tried to thread the needle between answering difficult legal questions, while leaving open for lower courts the case-by-case determinations of the scope of copyright’s protection for software and the equities of the fair use doctrine. I think they were worried that adopting either a copyright maximalist or minimalist view here could cause market disruption, and I think this case will be a monument to judicial restraint, perhaps more so than it will in clarifying copyright law.
Peter Toren, Peter Toren, Attorney at Law
The most interesting aspect of the Google v. Oracle case is that the court failed to address the issue of copyrightability, however, given the court’s approach to fair use it is uncertain as to whether this really matters. In short, the decision is likely to come as a big relief for the tech industry, as a decision in favor of Oracle could have made it more difficult to develop interoperable software. In an amicus brief filed with the court, Microsoft argued that the Federal Circuit’s decision that use of the code was not fair use, and could have had “profoundly negative consequences for the computer industry, which according to Microsoft depends on a robust fair use doctrine to ensure that software from different vendors will work well together.” In addition to a victory for at least one segment of the tech industry, the Supreme Court supported a broad view of the right to fair use, primarily on the ground that Google had made transformative use of Oracle’s code and offers guidance as to what constitutes transformative use under the fair use doctrine. The decision also may call into question the very recent 2nd Circuit decision in The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, which qualified what it means to be transformative under the first fair use factor.
Robert Van Nest, Keker, Van Nest & Peters
Van Nest was the lead trial lawyer representing Google.
The court found Google’s use of JAVA transformative and established that reimplementing APIs is fair use. It’s a huge win for Google and for innovation.
Bob Zeidman, Zeidman Consulting
Zeidman acted as an expert for Oracle in the case.
For every technology case before the Supreme Court, I always hope that it will correct its past errors. I’m always disappointed, and that holds especially true for yesterday’s surprising decision for Google in Oracle v. Google. As Justice Thomas explained clearly in his dissent, the majority’s fair use analysis was “fundamentally flawed.”
In the early days of software, those against patenting software argued that copyright protection would suffice. They got their wish in the Supreme Court’s decision in Alice v. CLS Bank that effectively made software unpatentable. Yesterday’s decision effectively made software uncopyrightable. By expanding the definition of fair use, all copied code is potentially fair use, especially if the infringer is able to market it more effectively than the creator. While the Supreme Court differentiated “declaring code” from “implementing code,” there are no such technical terms, and the court offered no useful definitions.
Companies must now keep their software code secret and never release code to the public unless they are willing to give up all rights in it. Ironically, the open-source software advocates who are applauding this ruling will find that their business model will soon be diminished. Knowing that their code can be wantonly copied, companies will be reluctant to donate any of their code to the open-source community.
Once again, only Congress can fix this mess in copyright law, but just like we saw with the America Invents Act regarding patent law, there is little promise that Congress will understand the problem, much less fix it.
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