WASHINGTON – The Supreme Court on Monday said Google did not violate copyright law when it developed its Android mobile operating system using code from Oracle, a much-anticipated ruling in the tech world that saves Google billions of dollars in potential damages.
The court ruled 6 to 2 for Google in the case, which has major implications for the software industry. It was argued before Justice Amy Coney Barrett joined the court, and she did not take part in the decision.
“We assume, for argument’s sake, that the material was copyrightable,” Justice Stephen Breyer wrote for the majority. “But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law.”
Justices Clarence Thomas and Samuel Alito dissented.
Oracle had alleged in the decade-old case that Google infringed on copyrights related to using about 11,500 lines of code from the Java programming platform to develop Android. Oracle, which acquired Java in 2010 when it bought Sun Microsystems, sought $9 billion in damages, arguing that Google used the code without its permission.
Thomas said the company had a case, in part because Amazon paid Oracle to license Java for its Kindle devices before Google’s use of the technology in Android. As a result of its copying, he wrote, 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. Despite this, the majority holds that this copying was fair use.” (Amazon chief executive Jeff Bezos owns The Washington Post.)
In a blunt statement released after the decision, Oracle said Google “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.”
Since the fall, regulators in the United States have filed three lawsuits against the tech giant – including a broad antitrust case brought in December by more than three dozen states – signifying a deepening unease with Google’s profits and reach.
Google said it welcomed the decision. “The Supreme Court’s clear ruling is a victory for consumers, interoperability and computer science,” said Kent Walker, Google’s senior vice president of global affairs. “The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers.”
Matt Schruers, president of the trade group Computer and Communications Industry Association, said the court’s ruling “that fair-use extends to the functional principles of computer code means companies can offer competing, interoperable products.”
“The biggest consequence of the decision is that small companies and developers can feel free to build software that’s compatible with their bigger competitors, without fear that they will be sued for copyright infringement,” said Charles Duan, a former computer scientist and patent lawyer who works at R Street, a pro-business think tank.
In practice, start-ups have been doing this for years, but the potential copyright issue has added a measure of risk. “The main effect of the decision is to lift the copyright cloud,” Duan said.
Google argued that weaving that code into Android was protected under the “fair use” doctrine that allows the unlicensed use of copyright-protected work in circumstances, such as this case, when there is no other way to do it.
Breyer agreed that although Google copied thousands of lines of code, its engineers wrote millions more and “put their accrued talents to work in a new and transformative program.”
“Google, through Android, provided a new collection of tasks operating in a distinct and different computing environment,” Breyer wrote. “Those tasks were carried out through the use of new implementing code (that Google wrote) designed to operate within that new environment.”
Breyer said the fact that computer programs are “primarily functional” makes it difficult to “apply traditional copyright concepts” to the tech world.
But he said the court need not “overturn or modify our earlier cases involving fair use – cases, for example, that involve ‘knockoff’ products, journalistic writings, and parodies.” It just applies them to “this different kind of copyrighted work.”
“We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed . . . Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”
Breyer was referring to the technical way software developers use application programming interfaces, or APIs. That’s the computer code that enables websites and applications to work together. APIs also reduce the amount of basic computer coding developers need to write with each program.
When the Supreme Court took the case, it agreed to decide whether such code can be copyrighted.
But Breyer sidestepped that issue.
“Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute,” he wrote in the opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh.
“We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copyrighted.”
In his dissent, Thomas said that was a mistake with consequences.
The court’s fair-use analysis is “wholly inconsistent with the substantial protection Congress gave to computer code,” Thomas wrote. “By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis.”
He added: “Properly considering that statutory text, Oracle’s code at issue here is copyrightable, and Google’s use of that copyrighted code was anything but fair.”
The case had bounced around various courts over the years.
In 2016, jurors ruled that Google’s use of the Java code was permitted as fair use under federal copyright law. Two years later, a federal appeals court overturned that, ruling that there is “nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”
Google won the support of several tech companies, including Microsoft, which argued in its own brief that the appeals court ruling in Oracle’s favor “risks upsetting long-settled expectations” that have allowed the tech industry to flourish by enabling programs to interoperate.
The Justice Department supported Oracle.
The case is Google v. Oracle.
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The Washington Post’s Jay Greene contributed to this report.