After a long and arduous path, the Supreme Court of the United States finally heard Google v. Oracle. In this case, Google faces potential liability for over $8 billion in damages because it copied the computer code as well as the structure and organization of that code from the original developer, Sun Systems, now owned by Oracle. The questions before the Court included whether the code and organization are copyrightable despite the merger doctrine and, even if so, whether Google’s use of the declaring code in the Android operating system constitutes fair use.
Some background is necessary 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,” first popularly used for web applications. API stands for application programming interface, a set of code that enables two different software products to communicate—in this case, the APIs allowed Android written with the Java language to interface with the Android device. While the implementing code performs the actual program, the declaring code tells the programmer what the program does, which information is needed to perform the program, and where the program fits in the Java hierarchy. Programmers use calls that mirror the declaring code in order to invoke the API.
If you are feeling a bit lost, you are not alone. During oral argument on Wednesday, October 7, 2020, lawyers for Google, Oracle, and the weaved through a flurry of comparisons as the justices—like the lower courts previously—sought to gain a better understanding of the role of the declaring code and APIs more generally. In a line of questioning for Google, Chief Justice Roberts began by comparing Google’s copying to theft:
But, you know, cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it. I mean, if it’s the only way, the way for you to get it is to get a license.
The justices then jumped from one analogy to another, comparing the declaring code itself to football playbooks and mathematical proofs, and then to the organization of the code to the QWERTY keyboard, the periodic table, and grocery store aisles. The first set of comparisons are instructions similar to the uncopyrightable methods of operation discussed in Baker v. Selden, where the Supreme Court held that copyright over an accounting book does not extend to the underlying accounting method. The second set are selections and arrangements which may be copyrightable. However, like the QWERTY keyboard, there were many ways for Sun Systems to organize the Java declaring code originally, but, by the time Google developed the Android system, app developers were used to Java’s hierarchy, according to Google’s argument. As emphasized by Justice Breyer and perhaps colored by with granting a monopoly over any of these ideas or standard organizations.
As the justices tried to tether the situation to something more familiar, the attorneys emphasized the importance of their ruling. For Google, a ruling in favor of Oracle represents a complete disruption of the programming world. As underscored in an amicus brief by eighty-three computer scientists—referred to repeatedly during oral argument—“the computer industry has long relied on freely reimplementing software interfaces to foster innovation and competition.” They suggest that finding the declaring code or organization of the declaring code copyrightable would force programmers to needlessly reinvent the wheel before progressing to something new.
Naturally, Oracle disagreed, arguing that the “the software industry rose to world dominance since the 1980s because of copyright protection,” and, rather than respect that protection and spend millions developing new code like Apple and Microsoft did, Google took 11,000 lines of code in an effort to catapult the nascent Android phone market off the hard work and original expression of Sun System’s programmers. Oracle and the government warned that a ruling for Google will “decimate the incentive to create high-quality, user-facing declaring code” that many companies actually license. Some legal scholars have criticized Oracle’s argument as arguing sweat-of-the-brow, a copyright doctrine repeatedly rejected by the Supreme Court, while others point out that companies license potentially uncopyrightable works all the time in order to avoid a future dispute.
Even if the Court agrees that the declaring code is copyrightable, then the Court must wrestle with whether to uphold the jury’s verdict that using Java’s declaring code for mobile phones was transformative fair use. While Google highlighted the “enormous creativity that is unleashed by the ability to reuse the [declaring code],” Oracle importantly underscored that fair use is notoriously tricky, poorly defined, and will lead to uncertainty for programmers.
No matter how the Court rules, the opinion, which is expected by June 2021, is sure to shake up the software industry. If the Court holds that the declaring code is not copyrightable, then programmers will breathe a sigh of relief, unburdened by the need to verify licensing in an industry built on the shoulders of giants. If the Court holds that the declaring code is copyrightable and the use is not transformative, then code licenses and lawsuits alleging infringement will flood Silicon Valley. Finally, if the Court holds that the use is transformative, even if the code is copyrightable, then attorneys must grapple with counseling companies on specific uses, navigating through the murky waters of fair use.
 Michael Arin is a recent graduate of the University of Minnesota Law School. His research focuses on the intersection of intellectual property, consumer protection, and antitrust, with a specialization in the esports industry. The views expressed herein are the author’s own.