Google's Supreme Court Win Sends Pro-Consumer Message

(Bloomberg Opinion) -- The Supreme Court has ruled that Google did not violate Oracle’s copyright when it copied 11,500 lines of JAVA code for its Android operating system. The 6-2 decision followed a long-term trend by reversing a ruling by the U.S. Court of Appeals for the Federal Circuit, a specialized body that tends to protect intellectual property more aggressively than does the Supreme Court. Although written narrowly and aimed at the specific facts of the case, the Supreme Court opinion nonetheless sends a message that copyright law shouldn’t stand in the way of innovations that serve the needs of consumers.

Justice Stephen Breyer, who wrote the court’s opinion, is the court’s oldest justice, but that doesn’t mean he’s the least comfortable talking about computer code. To the contrary, Breyer built his career in part on his ability to assimilate technical information and make it comprehensible to lawyers. The fact that the technocratic Breyer wrote the opinion — and was joined by the court’s liberals as well as conservative justices John Roberts, Neil Gorsuch and Brett Kavanaugh — suggests the decision doesn’t reflect ideology so much as pragmatism.

In evaluating a Supreme Court decision relating to a technical issue like software development, it’s useful to understand the facts in the way the justices do — that is, as generalists, not actual experts. In Breyer’s account, the case was not about code broadly, but “declaring code” within the Java application programming interface, or API.

An API, per Breyer, is a tool that allows programmers to incorporate pre-existing code into their own new programs. “Declaring code” — a phrase that emerged in the course of the litigation here — referred, for Breyer, to the part of the API that allows code written by the programmer to match and call upon corresponding code in the API.

Crucially, Breyer, who loves analogies, wrote that “language itself provides a rough analogy to the declaring code’s organizational feature, for language itself divides into sets of concepts a world that in certain respects other languages might have divided differently.”

The moment Breyer compared the declaring code to language and concepts, the outcome of the case was clear. Language and ideas cannot be copyrighted. Only specific expressions of ideas captured in language can be.

To be sure, Breyer did not hold that declaring code can never be subject to copyright. Instead, Breyer wrote that Android’s use of the declaring code constituted “fair use”: a protected category of copying.

Fair use has four elements, and Breyer called on each of them. He first argued that the nature of the work in question — an API — favored fair use because it was by its nature bound up with uncopyrightable ideas and a new creative expression, namely Android. He next argued that the Android use was “transformative.” Third, he reasoned that 11,500 lines wasn’t too “substantial” in the light of the 2.86 million lines of code in the API. Finally, he suggested that the new use didn’t negatively affect the value of the original copyrighted work because Android was not a market substitute for Java SE.

In a dissent joined by Justice Samuel Alito, Justice Clarence Thomas insisted that “as a result” of the Android copying, Google “erased 97.5% of the value of Oracle’s partnership with Amazon, made tens of billions of dollars, and established its position as the owner of the largest mobile operating system in the world.” This description captured a view of copyright closer to that of the Federal Circuit, which by virtue of its specialist role has a tendency (at least from the perspective of most of the Supreme Court justices) to be captured by corporate interests who favor the close protection of intellectual property.

For Breyer and the majority, it is less important for the Supreme Court to make sure the owners of intellectual property get paid than it is to protect the expansive possibilities of new technologies that serve consumers.

The upshot is not that the Supreme Court has declared open season on copying code. Copyright law protects computer code and will continue to do so. Rather, the decision reflects the evolution of the fair use in enabling transformative technologies that serve the interests of consumers, and a Supreme Court majority that doesn’t want to stand in the way of progress.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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