After a long and arduous journey, the United States Supreme Court finally heard Google v Oracle. If so, Google could be liable for over $ 8 billion in damages because the computer code and the structure and organization of that code were copied from the original developer, Sun Systems, now owned by Oracle. Questions before the court included whether the code and organization are copyrighted despite the merger doctrine, and whether Google’s use of the declaring code in the Android operating system is fair use.
Some background information is needed to understand the scope of the dispute. Google copied the declaring code of 37 APIs. Java is a programming language and platform designed for programmers to “write once, run anywhere” and is first used in web applications. API stands for Application Programming Interface, a series of codes with which two different software products can communicate with each other. In this case, the APIs allowed Android written in the Java language to be connected to the Android device. While the implementation code executes the actual program, the declaring code tells the programmer what the program is doing, what information is needed to run the program, and where the program fits in the Java hierarchy. Programmers use calls that mirror the declaring code to call the API.
If you feel a little lost, you are not alone. During a hearing on Wednesday, October 7, 2020, the lawyers from Google, Oracle and the settlements woven through a series of settlements tried, like the judges before – like the lower courts before – a better understanding of the role of the declaring code and the Getting APIs more general. In a series of questions to Google, Chief Justice Roberts initially compared Google copying to theft:
But, you know cracking the safe may be the only way to get the money you want, but that doesn’t mean you can. I mean if it’s the only way the way for you to get it is to get a license.
The judges then jumped from one analogy to another, comparing the declaring code itself with soccer game books and math evidence and then organizing the code for the QWERTY keyboard, periodic table, and grocery store aisles. The first settlements are instructions similar to the non-proprietary operating methods discussed in Baker v. Selden, in which the Supreme Court ruled that copyright on a book does not extend to the underlying accounting method. The second set consists of selections and arrangements that may be protected by copyright. As with the QWERTY keyboard, Sun Systems had many ways to originally organize the Java declaration code. When Google developed the Android system, app developers were used to the Java hierarchy, according to Google’s argument. As pointed out by Justice Breyer and perhaps colored by granting a monopoly over one of these ideas or standard organizations.
When the judges tried to tie the situation to something more familiar, the lawyers stressed the importance of their decision. For Google, a decision in favor of Oracle means a complete disruption of the programming world. As pointed out in an Amicus letter from eighty-three computer scientists, repeatedly referred to in oral disputes, “the computer industry has long relied on the freedom to reimplement software interfaces to foster innovation and competition.” They suggest that finding the declarable code or organizing the proprietary declaration code would force programmers to unnecessarily reinvent the wheel before moving on to something new.
Of course, Oracle disagreed, arguing that “the software industry has risen to world domination since the 1980s because of copyright protection,” and instead of respecting that protection and spending millions on code development, as Apple and Microsoft did, Google took 11,000 Lines of code in an effort to catapult the burgeoning Android phone market from the hard work and original expression of Sun System programmers. Oracle and the government warned that choosing Google “will reduce the incentive to create a high-quality, user-related declaration code” that many companies actually license. Some legal scholars criticized Oracle’s argument as “sweaty,” a copyright doctrine repeatedly rejected by the Supreme Court, while others point out that companies are continually licensing potentially non-copyrighted works to avoid future disputes.
Even if the court agrees that the declaring code is copyrighted, the court will have to face the question of whether to uphold the jury’s verdict that the use of Java’s declaring code for cell phones is transformative fair use. While Google highlighted the “tremendous creativity unleashed by the ability to reuse [declaring code]Most importantly, Oracle emphasized that fair use is notoriously difficult, ill-defined, and will create uncertainty for programmers.
Regardless of how the court decides, the opinion expected by June 2021 is sure to shake up the software industry. If the court finds that the declaring code is not copyrighted, programmers will be relieved to breathe a sigh of relief without the burden of the need to review licensing in an industry built on the shoulders of giants. If the court believes the declaring code is copyrighted and its use is non-transformative, it will flood code licenses and Silicon Valley breach lawsuits. If the Court finds that use is transformative, even if the Code is copyrighted, lawyers will have to grapple with consulting firms about specific uses and navigate the murky waters of fair use.
 Michael Arin is a graduate of the University of Minnesota Law School. His research focuses on the intersection of intellectual property, consumer protection and antitrust law with a specialization in the esports industry. The views expressed here are the author’s own.