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Update (4/7/21): Mark Lemley formerly represented Google in unrelated cases and his law firm currently represents Google.
The technology we use every day is built using thousands of lines of code — some of it written decades ago. Now the Supreme Court is deciding when that code is free for others to use and when it is not.
Back when Google was creating Android, its mobile operating system, the company decided to make it work with the popular programming language Java so it would be easier to make Android apps. But to do that, Google used Java code that is now owned by Oracle. Oracle sued, and after several trials, the Supreme Court heard oral arguments Tuesday. I spoke with Mark Lemley, a law professor at Stanford University, where he teaches copyright and internet law. The following is an edited transcript of our conversation.
Mark Lemley: I think this has tremendous implications for the way software is written and for the structure of software markets. I think if Oracle wins its case, it’s going to make it much harder for computer programmers to write programs that work with other programs. I think it’s going to make it much more difficult for anything from cloud computing to video games to a number of non-software interconnections to interoperate or work together with machines.
Amy Scott: The Supreme Court heard oral arguments yesterday in this case. [Did] anything stand out to you on either side?
Lemley: Yes. I think what’s remarkable, especially given the background we’ve just talked about, is that Oracle’s arguments seem to get a lot of traction with a lot of the justices. Chief Justice [John] Roberts compared Google writing its program in a way that made it interoperate with Java to cracking safe codes. And a number of the justices seemed to think that the fact that Oracle had written this code, even if this code was now necessary to make programs work with Java, meant that it was the copyright owner and had an entitlement to protection.
Scott: So based on that, do you have a sense of which way the court might lean?
Lemley: It’s always hard to predict from oral arguments, but I guess I came out of the oral argument thinking that, at least on the question of is this copyrightable at all, many and maybe most of the justices were inclined to take Oracle’s side and to say it was copyrightable. Justice [Stephen] Breyer, and maybe Justice [Sonia] Sotomayor and [Elena] Kagan, were more skeptical of that claim. If Google prevails, I think it might prevail not on the grounds that you can’t protect this information at all, but on a narrower ground that the [U.S. Federal Appeals] Court was wrong to overturn the jury’s finding of fair use, that Google’s particular use of this was permissible, or at least that there was a factual dispute and the jury could legitimately find it permissible.
Scott: As you mentioned, this case has been around for a decade now. Obviously, a lot has changed both in the companies themselves and in the makeup of the [Supreme] Court. How do you think that could affect the outcome?
Lemley: I think the world has changed for the internet, and not necessarily in a way that’s good. If you had asked people what they thought of Google, what they thought of the internet and openness in 2010, I think you would have gotten much more favorable responses than you will get in 2020. I don’t know that that’s going to affect the outcome, but the concern that we’re going to significantly impede the way we write software and innovation in Silicon Valley I think resonated a lot more when this case began than maybe it does today. As for the court, I mean, I think one significant factor is, obviously, the absence of Justice [Ruth Bader] Ginsburg. She was a very pro-copyright voice on the court. Her absence, I think, sort of both takes that voice away, which maybe isn’t great for Oracle, but also means that there’s a prospect that, as the court did 24 years ago in Lotus v. Borland, we could end up with a 4-4 split and no decision.
Scott: Why couldn’t Google just create its own code?
Lemley: Google could create its own code; in fact, Google did. One of the things that’s notable here is not only is all of the rest of Android code something that Google didn’t copy, but even the so-called applications program interfaces themselves, which are the way the programs connect with the computer, Google didn’t copy Java’s code; it wrote its own implementing code. But there are some things you have to copy because they are signals that allow the things, the two programs, to work together. If we want interoperability, if we want somebody to do what Java said was going to be possible, which is, “write once, run everywhere,” then people have to be able to copy the bits of code that are necessary to allow you to run Java.
Scott: And if Oracle wins, how could that affect the kinds of programs we have in the future?
Lemley: I think if Oracle wins, it means that the era of openness and interoperability comes to an end, and we retreat even further than we already have into walled gardens. If you’re on an Apple device, well, the only thing you’re going to be able to run are things Apple has approved. If you’re on a Google device, the only thing you’re going to be able to run are things Google has approved. But the long-term payoff might be that it’s harder to dislodge the Apples and Googles and Facebooks of the world in a world where we can’t write software that works with theirs.
Scott: Which side do you see working best for consumers?
Lemley: I think there’s very little question that Google is on the side of consumers here, because it is allowing people to create interoperable programs, to use things across platforms. I think that both leads to cheaper products and it leads to a wider array of potential products, so consumer choice benefits.
Oracle argues that a ruling in its favor helps consumers by promoting innovation, saying companies will be reluctant to make big investments if a competitor can copy their work without paying for it.
In The Verge, Sarah Jeong has a great piece looking back on the decade of legal action in this particular case and what the outcome could mean for how Silicon Valley functions. Sarah compares the way tech is built to a game of Jenga, where new languages stem from old ones and new code is stacked on top of older code. Google v. Oracle, she writes, is a case that’s happening at the lowest level of the stack with a lot of people watching to see if the tower falls.
Mark Lemley also mentioned that the late Supreme Court Justice Ruth Bader Ginsburg was a big proponent of copyright protections. Law 360 had a piece listing some of the significant copyright and intellectual property decisions and dissents Ginsburg wrote, including New York Times Co. vs. Tasini, affirming protections for freelance writers whose newspaper articles ended up online, and Eldred v. Ashcroft, upholding Congress’ right to extend copyright protections for 20 years. Google v. Oracle is the first intellectual property case to be heard before the Supreme Court in decades without RBG.
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