What the Legal Community is Saying About the Google v. Oracle Decision

On April 5, the Supreme Court published its decision in Google v. Oracle, a case that many expected to make a substantial impact in copyright law, specifically in how software code is protected. While the decision appears to have very limited applicability, many in the copyright community voiced concerns regarding how the case was decided and what the decision’s potential ramifications are. Below is a compilation of various reactions to this decision:

• “Not only did the decision completely punt on one of the most important issues that was brought before the court, but the ruling itself seems like a broad expansion of fair use that the court is attempting to make extremely narrow. […] This ruling smacks of working backwards. The justices in the majority clearly felt that Google was in the right but was unsure how, using the existing fair use factors and case law, to get to the desired outcome. It’s an outcome that could have been simply reached by simply ruling that the code was not protectable by copyright, but the court chose to do it through a fair use analysis.” – Jonathan Bailey, Plagiarism Today

• “Everyone likes to get free stuff. However, the devaluation of IP rights under rulings such as Google v. Oracle is likely to discourage investment by (and in) the inventors, artists, and entrepreneurs who stand at the foundation of a robust innovation economy. It is time to reconsider whether the current weak-IP policy trajectory is on the right track.” – Jonathan M. Barnett, Opinion Contributor, The Hill

• “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.” – Dorian Daley, Executive Vice President and General Counsel, Oracle

• “[Breyer] seems to add a public benefits and harm test to the usual market analysis. […] In other words, copyright can become the enemy of progress — rising to an exclusive ability to control and stymie a developing market. That’s something that a majority of justices on the Supreme Court find intolerable, and it’s an important development in the history of IP enforcement.” – Eriq Gardner, The Hollywood Reporter

• “This isn’t like creating something from scratch. Scotus potentially handed the right to my code over to any competitor who wants to rapidly create a way to circumvent my work and rights.” – Alan Graham (@agraham999)

• “[T]he Breyer opinion asks fair use to do something it is not meant to do. […] By transforming a copyrightability opinion into a fair use analysis, the Court seems to have fallen for the temptation to limit copyright’s protections based solely on works already developed, while failing to more expansively imagine works that may or may not be developed in the future.”” – The Illusion of More

• “The decision could lead to more disputes over software, and ‘we will see more copying, more cases, and more claims of fair use.’” – Michael Keyes, Dorsey & Whitney

• “I would characterize this opinion […] as essentially, it’s a copyrightability opinion masquerading as a fair use analysis. […] [I]t’s impossible to see under Justice Breyer’s application of the truncated three factors of the fair use test that he created in this case how any unauthorized commercial use of declaring code wouldn’t qualify as fair use. And Justice Thomas I think rightly identifies this in his dissent and shows how this is back-ending into the copyrightability question, and revealing […] completely policy-driven application of the statutory factors in 107 and an undermining of the clear factors of the rights secured to copyright owners in 106. […] [Further,] Justice Thomas rightly calls out Justice Breyer for conflating transformative use with derivative work.” – Adam Mossoff, Antonin Scalia Law School

• “This [is] a major departure from what the fair use standard used to be, especially with respect to software.” – Florian Mueller, FOSS Patents

• “The actions of the Supreme Court on software are puzzling, and Congressional inaction even more so. We are at a point in history when two-thirds of all innovations patented at the U.S. Patent and Trademark Office relate to software, most believe China will dominate the market for artificial intelligence and machine learning innovations (see here and here, for example), and there is a growing fear that the United States’ lackadaisical approach to AI is already having national security implications. Meanwhile, the Supreme Court is doing everything in their power to make software the red-headed stepchild of the innovation world in the United States. Why? So, a handful of very powerful and extraordinarily rich companies can copy without creating, which is exactly what happened when Google cut and pasted Oracle’s code.” – Gene Quinn, IPWatchdog

• “[…] I feel that the majority’s opinion is intellectually dishonest. […] [T[he majority contradicts itself. The majority recognises that the creative element in the “declaring code” lies in making it intuitively appealing and easy-to-use so that it becomes popular with the programmers. The popularity with the programmers was the intended effect. However, the majority considers this effect of being an independent factor for which Oracle/the creator gets no credit. Instead, the Court uses this fact against Oracle!” – Adarsh Ramanujan, Spicy IP

• “Potentially the biggest impact of this decision, I think then, will be the purpose and character analysis, or the market analysis. […] The purpose and character analysis is just wild, I mean [they] really push hard on transformativeness and, you know, they really read this bad faith and say ‘oh, we’re not worried about bad faith,’ but the cases they cite for that are not really apposite.”  – Zvi Rosen, Southern Illinois University School of Law

• ““The biggest surprise in the Google opinion is how much weight the Court gave to the interests of programmers who had learned to use Java declarations so they could develop apps for various types of devices.” “A second surprise was the Court’s conclusion that Google’s reimplementation of these declarations was ‘transformative.’ […]” “A third surprise was the Court’s statements in the market-harm section that courts should consider the “public benefits that the copying will likely produce” as well as risks that enforcing copyrights might sometimes harm the public.” – Pamela Samuelson, Berkeley Law School

• “But the silliest thing is that the ruling doesn’t even do what many people think it does. It doesn’t say APIs aren’t copyrightable. It just lets Google get away with their little trick and leaves the waters muddy. Google wins, everyone else loses.” – Ben Sizer (@kylotan)

• “While it’s good to have the Justice Department and the Copyright Office agree with you on the merits, as Oracle did, it’s even better to have a sitting Supreme Court Justice who is absolutely determined to see your side win. […] For the third factor, which is the amount and substantiality of the portion copied, the Court acknowledges that the declaring code was the needed, quote, key that Google copied to give itself a commercial advantage, quote, to improve its own Android systems, closed quote. That sounds like a very strong basis to find that Google copied what’s known as the heart of the work, which other Supreme Court cases have told us favors the copyright owner. Perversely, Justice Breyer considered that to support a finding of fair use, the opposite of what precedent dictates.” – Steven Tepp, Sentinel Worldwide

• “[A]a Court with someone that understood copyright in the way that RBG did would have been much more sympathetic to Oracle, & at a minimum, would have produced a more reasonable, better researched & less confused decision […]. [A]s hard as this is for me to write, read Thomas’ dissent and you’ll get a good sense of the illogic & unfairness of the decision. And written by someone that apparently doesn’t understand copyright at all. To wit: “It grants an author an exclusive right to produce his work…not as a special reward, but in order to encourage the production of works that others might reproduce more cheaply.” Total nonsense. That actually may be the biggest misstatement of law I’ve ever seen in a Supreme Court decision. Absolutely ahistorical with no basis in law, policy or practice.” – Neil Turkewitz (@neilturkewitz)

• “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.” – Bob Zeidman, Zeidman Consulting (Zeidman acted as an expert for Oracle in the case.)

Conclusion

While these quips represent only a sampling of what has been said about the case, and many commentators focused on different areas of the Court’s opinion, there is a common concern that the Court demonstrating puzzling, if not contradictory, reasoning. As Jonathan Bailey described, it appears to some that the Court worked backwards to reach its preferred conclusion. While bloggers disagree whether the Court’s decision effectively makes software code uncopyrightable, most shared concerns that the Court incorrectly applied the fair use doctrine and that this misapplication could drastically affect how copyright law applies to software.