Update (4/7/21): Mark Lemley formerly represented Google in unrelated cases and his law firm currently represents Google.
For years, courts have been trying to hash out whether Google stole code from Oracle, the database software giant. Way back when Google was creating its Android mobile operating system, it decided to use some Java code that would make the system compatible with a lot of programs. But the Java code was owned by Oracle, which then sued, and it’s been in the courts ever since.
The Supreme Court this week finally ruled that what Google did was allowed and didn’t infringe on Oracle’s copyrights. I spoke with Mark Lemley, a law professor at Stanford, where he teaches copyright and internet law. He said the ruling means that a standard practice, of one company building on the work of another so that their products work together, didn’t get blown up. The following is an edited transcript of our conversation.
Mark Lemley: The internet is built on interoperability. And I would say, in the 1980s, 1990s, interoperability was a fundamental part of the way we wrote software. Something strange has happened in the last two decades, and that is that we’ve seen it sort of overtaken by walled gardens. So Apple, for instance, if you have an iPhone, Apple gets to say, “We get to decide which apps can run on that phone.” And I think one of the things that this opinion may do is open a new era for interoperability without the permission of a Google or an Apple.
Meghan McCarty Carino: So it seems almost in an ironic sense that this win for Google could be a win for the little guys.
Lemley: I think that’s exactly right. I do think it is right to say that the rule that the court adopts here is one that protects Google in this case, but it might actually protect a bunch of small companies in future cases, including, potentially, small companies who are trying to do things Google doesn’t like.
McCarty Carino: Are there any downsides to having this kind of fair-use interpretation in place?
Lemley: You know, obviously, Oracle says, “Hey, wait a minute. We wrote something valuable, and we should get paid for it.” But I think what’s going on is an effort to make things work on new platforms to expand them. That’s going to be good for the world, not bad for the world.
McCarty Carino: Because we’ve talked to you developers who say that when big companies are considering hiring engineers, they’ll look at how much code they contribute to open-source platforms, like GitHub, and expect them to make frequent contributions. It’s sort of a weird thing to have giant companies expecting to get things for free?
Lemley: Yeah, that’s fair, and I see why it’s annoying to people if they feel like, “Well, I’ve got to write code for free, but Google is then going to go take it and make billions of dollars with it.” But I guess what I’d say is that the ecosystem as a whole is better off if there is lots of that code out there, and if people can take it and build on it and work with it. And more specifically, I think if we’re ever to get past the current tech platform dominance that we’ve been stuck with for the last 10 or 15 years, at least, it’s going to be because somebody writes code that takes the existing platform and expands it, subverts it, changes it, adds to it. That’s much easier in a world where interoperability is the norm than it is in a world where you’ve got to get the permission of whoever is the incumbent before doing anything that might challenge them.
McCarty Carino: Now, beyond the tech industry, do you think this opinion could have implications for copyright law and intellectual property more broadly?
Lemley: Absolutely. One of the things that’s notable here is, for the last probably 30 years, copyright’s fair-use doctrine has been very focused on what we call transformative use. Most notably, last week, the 2nd Circuit Court of Appeals, which is the court that covers New York, held that Andy Warhol’s works were copyright infringement. And the particular case there involved his depiction of the artist Prince. But the reasoning basically rejected this idea of transformative use, that it had been overblown and suggested that all of Andy Warhol’s works, but possibly a whole other category of works that take and build on somebody else’s art, were in danger of being held illegal. I think this opinion in discussing the doctrine of fair use reinforces and shores up this idea of transformative use as a critical factor in copyright analysis. And so it may end up protecting the Andy Warhols of the world and not just the Googles of the world.
Related links: More insight from Meghan McCarty Carino
Mark Lemley touched on how the Apple App Store is an example of the walled garden model. I asked him about whether this Supreme Court decision has implications beyond copyright law. Apple has been in a legal fight with Epic Games, the maker of Fortnite, over access to the App Store. That is an antitrust case, and Lemley said they’re not directly related, but:
Lemley: The reasons we’ve moved away from interoperability are really complex. Some of them are business reasons. Some of them are technological reasons. And there are a bunch of legal doctrines that have allowed us to do that. But one of the key legal doctrines that companies use to try to prevent people from engaging in what Cory Doctorow has called adversarial interoperability — writing a program that works with yours, even if you don’t want me to. One of those key doctrines is copyright law. And I think this takes that argument away. It doesn’t mean that we’ll automatically get beyond walled gardens. But if we’re going to try to get past walled gardens, this is an important first step in making sure the laws will permit it.
So in other words, this week’s Supreme Court decision doesn’t bust open the App Store, but it lays the groundwork for what could come after, should Epic’s antitrust case succeed. The trial is set to start next month.
More on that Andy Warhol case Lemley mentioned. It hinged on whether Warhol’s artwork, based on a photograph of Prince, was transformative, which is one of the legal litmus tests for fair use. Well, a lower court judge had ruled it was, saying “the Warhol images transformed a ‘vulnerable, uncomfortable person’ into an ‘an iconic, larger-than-life figure.’” The appeals court ruled that district judges should not assume the role of an art critic.
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