Experts weigh in after Supreme Court expands the terms of fair use of API code

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The ruling ends a 10-year battle over Oracle’s Java API code that Google copied to build the Android operating system.

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The Supreme Court made it easier for software companies to claim fair use when copying work from other firms in a decision Monday in a Google v. Oracle case. This was the end of a 10-year legal battle over Google’s use of Oracle’s Java API in building the Android operating system.

If Oracle had won the case, Google could have been liable for copyright infringement, experts said. In the ruling, the justices said that fair use has “an important role to play for computer programs by providing a context-based check that keeps the copyright monopoly afforded to computer programs within its lawful bounds.”

J. Michael Keyes, an intellectual property attorney at Dorsey & Whitney, said the decision wiped away a claim for damages against Google that could have reached into the billions. Keyes also said the ruling represents the biggest copyright decision in a generation because it shows that fair use decisions can be reviewed from the beginning at each step of the legal review.

“This means that there will always be room to argue on appeal that the jury or trial judge got it wrong,” Keyes said. 

Kent Walker, senior vice president of global affairs at Google, said that the ruling is 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,” he said.

Hannu Valtonen, chief product officer at Aiven, said that the Supreme Court’s decision to side with Google in its long copyright dispute with Oracle is a victory for the entire software industry.

“A change to the fair use of APIs would’ve severely slowed down the current pace of software innovation and created more cutthroat competition between tech giants who could potentially block the use of an API without payment,” he said. 

Dorian Daley, executive vice president and general counsel at Oracle, said that this behavior from Google is why regulatory authorities around the world and in the United States are examining Google’s business practices.

“They stole Java and spent a decade litigating as only a monopolist can,” she said. “The Google platform just got bigger and market power greater—the barriers to entry higher and the ability to compete lower.” 

Justice Stephen Breyer delivered the opinion which was joined by Justices John Roberts, Sonia Sotomayor, Elena Kagan, Neil Gorsuch and Brett Kavanaugh. The ruling stated that:

“Given programmers’ investment in learning the Sun Java API, to allow enforcement of Oracle’s copyright here would risk harm to the public. Given the costs and difficulties of producing alternative APIs with similar appeal to programmers, allowing enforcement here would make of the Sun Java API’s declaring code a lock limiting the future creativity of new programs. Oracle alone would hold the key.”

Keyes said that the court focused on the fact that Google was creating a different platform and used the collective efforts of software developers to do so.  

“This seems to inject a new question into the ‘transformative’ mix: How significant was the effort to create a transformative work?” he said. “The greater the amount of time/money/effort that goes into making a work transformative is now an important component to consider.”  

Keyes said that the ruling also clarifies what “market harm” means in the context of fair use of computer programs. 

“The court focused not on harm in the general sense but whether the second work acts as a ‘market substitute,'” he said. “That seems to be a tighter standard than courts have looked at in the past.” 

Keyes also said that the court also considered Sun’s comments that Google’s use would be helpful to Sun, which suggests that “market harm” isn’t straightforward and one-dimensional.

“A number of facts—including early statements and conduct by the copyright holder—will come into play in assessing harm,” he said.

Keyes said that there is a bit of judicial irony in the decision connected to the “sweat of the brow” theory of copyright protection, which is the idea that copyright protection relies on how much one toiled to make a work. This theory was rejected by the court decades ago, according to Keyes.

“Now, this concept appears to have been resurrected and comes into play in assessing whether a work was sufficiently transformative,” Keyes said. 

Keyes predicts that this ruling will trigger more copying, more lawsuits and more claims of fair use.

“I suspect this theme will unlock many future arguments and claims regarding the application of fair use to software-related claims,” Keyes said. 



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