Clash of the Titans: The Consequences of Google v. Oracle
An epic battle between titans splashed across news banners and came to a history-making end last week. No, I'm not talking about Godzilla vs. Kong, but the decade-long legal clash between Google and Oracle over software copyright and fair use. (I know… I know… but the comparison was just lying there.)
As I reported earlier, the Supreme Court of the United States (SCOTUS) ruled last Monday that Google did not commit copyright infringement when it used 37 Java APIs in its Android mobile operating system without Oracle's permission. There was a lot of money on the line--Oracle wanted an $8.8 billion piece of Google's Android business and $475 million in lost potential licensing revenue--but there was more at stake here than an obscene amount of cash.
Bill Frankel, shareholder at Chicago-based IP law firm Brinks Gilson & Lione and chair of their copyright group, boiled the issues down for me in an email:
"This is the first time in 25 years that the Court has taken up a fair use case," Frankel wrote. "In so doing, the Court found the nature of the declaring code different than other types of code because the user interface provides a way for programmers to access prewritten computer code, and that the nature of the use favored a fair use finding. As for the purpose and character of the use, the Court found that Google’s limited copying was transformative because it allowed for the creative development of new software programs. As for the amount and substantiality of the portions of material used, the Court found that the lines of code taken constituted only 0.4 percent of the entire API at issue and because the amount of copying was tethered to a valid and transformative use. Lastly, as for the effect on the market, the Court held that Android was not a market substitute of Java SE – a point also strongly challenged by the dissent."
I talked with Frankel over Zoom about the consequences of this decision. By not expressly acknowledging the copyrightability of declaring code in API’s, he told me, the high court created a distinction between computer code that is unquestionably copyrightable and code that is “further from the core of copyright” because it facilitates interoperability.
"This approach seems to blur the line between copyrightable and uncopyrightable code on the one hand, and between copyrightability and fair use on the other," Frankel said. "Tech companies may be less incentivized now to innovate and develop APIs, knowing that bigger companies can appropriate their content rather than pay for it (like Google did with Java SE). On the other hand, tech companies may still be able to license their APIs because their copyright status is not fully resolved."
The Court’s fair use analysis actually harkens back to the Google Books decision of the Second Circuit, which equated the public benefit of digitizing books for greater access as being transformative and a fair use of copyrighted material, Frankel pointed out. Google’s use of the Java APIs to create a new Android platform was “use consistent with that creative progress that is the basic constitutional objective of copyright itself," the majority opinion held.
"Regardless of the balancing of the relevant factors, it undoubtedly will alarm content providers to see the Supreme Court holding another instance of verbatim copying to be 'fair use' under the copyright law," Frankel said.
In his email, Frankel concluded: "The decision in this case creates some unsettling precedent for API software developers concerned about software copyrightability and for content providers concerned about defending against fair use arguments. However, from a policy standpoint, there is some logic to not making software developers reinvent the wheel and spend money to create identical functionality using different forms of expression."
I sent a copy of Frankel's conclusion to virtually all the Java mavens in my contact list, and almost everyone declined to comment, which I think might be seen as a testament to the reach of these two tech titans (not to mention something of a "no comment" record for me). But David Blevins, CEO and founder of Tomitribe, responded almost immediately. "I strongly disagree with the attorney you spoke with and do not see this as setting a precedent but upholding a critical precedent upon which our industry is built. Overturning it after several decades would have had a catastrophic impact."
Tomitribe was created by several founding members of the Apache TomEE community. TomEE is the enterprise Java edition of Apache Tomcat that combines Apache OpenEJB, Apache OpenWebBeans, Apache OpenJPA, Apache MyFaces and others. The company's mission is to "unite businesses using TomEE with responsible and sustainable open source."
I spoke with Blevins over Zoom. He offered both a legal and an ethical perspective on the issues addressed by the high court.
"When people in our industry think about this topic, I suspect they're underestimating the breadth and depth of API fair use," he said. "This idea can be traced back to things like light sockets. The reason you didn't have to pay anybody when you made a light bulb to screw into a standard socket is because interfaces were considered fair use, and we needed them to be considered fair use for the industrial revolution to happen. Today, our entire IT industry is built upon that concept. We take it for granted to the degree that we don't truly appreciate the complexities we're not dealing with. If the court had decided that interfaces are now copyrightable to the extent that was being argued, it would have changed our industry dramatically."
One change a different decision would have caused, Blevins suggested, was a proliferation of copyright trolling. "We would suddenly have a portion of the industry that is now subject to copyright in a way that wasn't important before," he said. You always owned the copyright on your interfaces, but it just didn't matter because of fair use. Without that, just as we have patent trolling now, we'd have interface copyright trolling in our industry. We would see acquisitions for the purpose of suing for API copyright infringement. It would be the next booming field."
But Blevins isn't letting Google off the hook completely.
"I have a particular perspective on this because of my open-source nature," he said. "Which is why I have to say, if you build something of enormous value, and someone else leverages that thing to critical levels, in the open-source world, the one using it has an ethical responsibility to either contribute to the thing or to you, so you can continue developing the thing they're leveraging. Which is a long way of saying, just because Oracle chose to eventually argue interface copyright infringement, that doesn't mean they didn't have a right to say, hey, we have a relationship. Maybe you could be helping instead of hurting."
I also wondered why Blevins was the only one to get back to me on this stuff. "I understand that a lot of people might not want to poke the bear—or bears, in this case," he said. "But I'm from the Apache community, and we're not particularly afraid of taking a stand, especially around law pertaining to software. Apache is very much a community that will stand up for the right thing, regardless. And we need that in this industry."
"And just to be clear," he added, "I don't have a problem with Oracle seeking action against Google, per se, as long as the industry isn't damaged in the process of those two giants fighting. And a different decision would have done a lot of damage."
I other words, when King Kong goes toe-to-toe with Godzilla, nobody wins.
Posted by John K. Waters on April 15, 2021 at 3:53 PM