Google Ducks $9 Billion Java Bill With High Court Win

WASHINGTON (CN) — Fair-use doctrine supports Google engineers who copied at least ten of thousands of lines of code when they created the Android mobile operating system, the U.S. Supreme Court ruled Monday. 

In a case at once about open-source software and market domination, the 6-2 decision marks an $8.8 billion defeat for Oracle America. The software giant sought the massive damages award after Google used the ubiquitous computer programming language Java without a license to create what is now the biggest mobile operating system in the world.

"We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law," Justice Stephen Breyer wrote for the majority.

The case stems from what Java's creator Sun Microsystems intended for the programming language, before Oracle swallowed it up. Whereas Sun wanted Java-based programs to be interoperable, Google envisioned its Android platform as open source, meaning minimal restrictions on what developers could do.

Of course, Google's motives were not entirely altruistic. Google knew that its phones would be more attractive in a competitive marketplace if it could attract developers to make more Android-based mobile phone applications.

Oracle's case turned on 37 application program interfaces, or APIs, that Google copied from Java without a license in developing the Android. APIs ensure different types of software communicate seamlessly, in other words what allows Facebook or any other app to operate on any smartphone.

Over the years, the case has taken several stutter steps.

In the first leg, a jury ruled that Google had indeed copied 37 APIs, and it was left up to U.S. District Judge William Alsup to work out if APIs were able to be used freely or protected under copyright. Alsup, who said in open court he has written hundreds of lines of code himself, said Google was free to copy. 

Following a partial reversal by the Federal Circuit, Google prevailed again at a second jury trial in 2016 only for the Federal Circuit to order a third — ruling Google’s copying was “not fair.”

Google appealed to the Supreme Court, which heard argument in the case last October. In backing the company, the majority focused on what Google’s copying of Java-related code did for the marketplace.

“Here’s Google’s use of the Sun Java API seeks to create new products,” Breyer wrote. “It seeks to expand the use and usefulness of Android-based smartphones. Its new product offers programmers a highly creative and innovative tool for a smartphone environment.”

Scott Walker, Google’s senior vice president of global affairs, lauded the opinion as a victory for “consumers, interoperability and computer science.”

“The decision gives legal certainty to the next generation of developers whose new products and services will benefit consumers,” Walker said in a statement Monday. “We are very grateful for the support from a wide range of organizations, from the National Consumers League to the American Library Association, as well as from established companies, start-ups and the country’s leading software engineers and copyright scholars.”

Rather than dispute that computer code is copyrightable, much like a work of film or literature, the majority differentiated between implementing code and declaring code. One witness described the creativity needed to write implementing code "as 'magic' practiced by an API developer when he or she worries 'about things like power management' for devices that 'run on a battery,'" Breyer noted.

Declaring code is different, Breyer wrote, in that it "is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code)."

"Unlike many other programs, its value in significant part derives from the value that those who do not hold copyrights, namely, computer programmers, invest of their own time and effort to learn the API’s system," Breyer added.

To the dissenting justices, however, this analysis “is wholly inconsistent with the substantial protection Congress gave computer code."

“Rather than address this principal question, the court simply assumes that declaring code is protected and then concludes that every fair-use factor favors Google,” wrote Justice Clarence Thomas, joined by Justice Samuel Alito. “I agree with the majority that Congress did not ‘shiel[d] computer programs from the ordinary application’ of fair use. But the majority’s application of fair us is far from ordinary.”

Thomas added: “By skipping copyrightability, the majority gets the methodology backward, causing the court to sidestep a key conclusion that ineluctably affects the fair use analysis: Congress rejected categorical distinctions between declaring and implementing code. But the majority creates such a distinction.”

Justice Amy Coney Barrett did not participate in the court's decision as the Senate had not yet confirmed her nomination when the Supreme Court heard arguments.

Thomas Goldstein, an attorney with Goldstein & Russell representing Google, did not respond to a request for comment. E. Joshua Rosenkranz, an attorney for Oracle with the firm Orrick Herrington, did not respond to a request for comment. 

This story is developing…

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