Google Wins Decade-Long Copyright Battle With Oracle

the Android operating system now used on most smartphones. Writing for the majority in the landmark decision, Justice Stephen Bryer said Google's copying was legitimate fair use, using a recipe finding robot as part of an analogy reminiscence of the analogies that Justice has had peppered the lawyers with during the oral arguments to discern what is copyrightable. Here are Justice Briar, Chief Justice John Roberts, and Justice Elena Kagan.

You didn't have to have a quarty keyboard on typewriters at the beginning, But my god, if you let somebody have a copyright on that, now they would control all typewriters, which really has nothing to do with copyright. Let's say you want to open a restaurant. You've got a great new chef, he's got great new dishes. Uh, and you say, well, we've got to figure out what the men you should look like. You know, of course you're going to have,

you know, appetizers first and entrees and then desserts. You shouldn't have to worry about whether that organization is copyrighted. Suppose I own a grocery store and I come up with a really terrific way of organizing all my fresh produce, all my fruits and vegetables into these categories and subcategories, very intuitive for the shopper, and um uh, this is

not the standard way. So it's different from the Chief Justices hypothetical in that way, it's novel, uh, and it's great joining me is sham Bogan as a professor at Columbia Law School. Are people correct in calling this a landmark decision? I think absolutely. The way I would put it is people have uittually expected it to be the copy case of the century. I don't think it's the

copyright case of the center. It's a copyright case of the last half century in the sense that the biggest question on copyright ability that the court side steps would have entailed it examining such a critical issue and copyrights that dates back to the nineteenth century. It did not do that, but fair use being so critical to the copyright in many ways, breathing license of the copyright system has been reinvigorated. So unquestionably it's the landmark. I would

say it's even more than a landmark. It's probably the biggest copyright case and intimitt at least a few decades. For those who don't know that much about computer code, tell us what the dispute was about. So the case basically entailed Google copying what are known as parts of applications program interfaces from some Java system or a PIS, and and parts of it, not the entire thing. And let me explain what API are in very basic terms.

APIs represented packages of pre written computer code that are contained in a Java library, and they're meant to be able to be taken off the shelf to be reintegrated into another program, so that it saves upware programmers significant time and such. And what Google did when it was designing its Android platform for smarket phone technology. It decides, in order to ensure that programmers who are already similar with Java would be able to carry over their skills

and knowledge based to their new platform. It decides to copy a portion of Sun's EPI thirty seven of Sun's applications program interfaces, or the pre written packages. It copies a portion of them called the declaring code. So let me explain the different kinds of code that exists within these pre written packages, because the case involves very importantly the distinction between these kinds of codes. So, as I said, the A p I s are written packages of code,

but the APIs contained two primary forms of code. According to both parties, the first one is referred to as declaring code. And the best way to understand the declaring code is that it's the code or the part of the API that describes the function of the package or

the task of the package. So these are the lines of the code that basically allow someone who's using the code or someone who's implementing it later on to know what the package is for the best way to understand it again in terms of an analogy, and there were a lot of analogies thrown out in this case during oral argument and in the brief, where that the declaring code is something like a header or like an index

or a glossary that indicates what the package is about. Now, very distinct from the declaring code was something called the implementing code. The implementing code is the actual functional code of the API of the application program interface, which executes the task which the package is meant to perform. Right now, very very importantly, Google had copied about eleven thousand, five lines only of the declaring code from thirty seven of

these pre written packages or API. Google did not copy any of the implementing code that Oracle owns, right, and so the entire case revolved around Google's copying of these eleven thousand, five hundred lines of declaring code from the Java AMPI library that Oracle owned, and obviously Oracle stood for copyright infringement, claiming that this was copying not just of the codes of the declaring code itself, but also the organizational structure, the way in which these headers had

been organized in the library, something referred to as the structure, sequence, and organization of the code of the declaring code had also been copied. So the case entirely adjusts just in summary. After that long response involved Google's copying of the declaring codes from thirty seven pre written packages called APIs that were owned by or What were the issues before the court.

So it's important to understand that when the Court took the case, there were two principal issues that were argued. The first one was whether the declaring code itself and its organizational structure, THEO were copyrightable under copyright rule that excludes protection for functional content for functional expression right um.

And the second issue was whether the copying by Google, even assuming it was copyrightable content, would constitute sit The court duct the first question and moved to the second one, saying if we want to resolve it because the first question would be a little too technological intensive, technologically intensive, and and it answered the second question by saying that

let's look at the nature of the code. So what the court does is it takes the four fair use factors that are codified in the Statutes of copyright statute. But what are the interesting things that Justice Brier does in the majority opinion is he sort of expands and reinterpret these factors in a way that makes them applicable to computer software. So he says, so, for instance, the first factor that he uses is a factors that hasn't been used extensively in the prior juristudents, a factor known

as the nature of the copyrighted work. Most courts have said it's probably the least important factor in the overall fair use analysis. Justice Brier says, actually, for computer software, it is perhaps one of the, if not the most important factors, and it allows us to sift between the types of computer code that are an issue in a software So, now, why did the court find that Google's

use of that code was fair use? Writing forward, the majority, Justice Brier focuses on I would say a couple of the fair use factors more than the others to find that it stay use. Here, the most important thing to note is that he takes the statutory factors and he modifies them for the context of computer software. So what's very important is how he adapts their use for computer software. So to illustrate, there's through the factors that he relies

on an important say use factor. The second factor in the statute is something called the nature of the copyrighted work. Briar spends a lot of time on this factor, showing how it can be used to differentiate between different forms of computer code. And he says, well, because we're dealing with this declaring code which has this function like a header or an index and not the implementing code. We

have to approach it differently. And because it's functional code of this declaring time, uh, it isn't really to be given as much protection as the implementing code because Google didn't copy the implementing code. So that factor, he finds very importantly allows him to recognize that what Google did could constitute a stronger case for fair use under the factor because the nature of what it copied wasn't core

or central the copyists. Another important factor, and perhaps one of the most important and his analysis, is this conclusion that what Google did is was engaging in a form of what it's called interoperability, trying to allow software programmers to use their knowledge and awareness of the Java platform in developing the Android apps and the Android framework so

that it could be compatible back with Java. This interoperability, he basically says, this is the copying a new purpose, and this new purpose was something that he weighs very heavily to say that it could constitute a transformative used, a transformative used under the fair use analysis. And this

again he weighs very heavily in favor of Google. And the last thing of the other I think the most important factor that he relies on is to say, let's just not focus on the commercial harm that Oracle suffered, but let's really focus on the public benefit as well from Google's actions. Let's look at how the interoperability and the development of a new platform expands public benefits. And therefore he says the economic harm should be weighed against

the benefits. And this favor is Google as well. So I think these three factors are the most important in his analysis, and that's why he's finds there to be there. But I think the key point really more than anything else, that he expands each of these factors and tailored for computer software in a new and interesting ways. Let's talk about the descent written by Clarence Thomas, because he said that this wasn't fair use Google erased five percent of

the value of oracles partnership with Amazon. And he also criticizes the fact that the court didn't decide whether or not this code was copyrightable. So what do you think

of his descent? So Justice Thomas's descent very interestingly, um, it's very close to what when many people expected after oral argument would be the court majority position in the oral argument, most of the justices were asking the lawyer's questions about copyright ability and how they could reconcile, especially Google lawyer, how the Google could reconcile its position with the text of the statute, which says that computer code

is copyrightable and it doesn't draw a distinction between different forms of computer code. Justice Thomas really builds on that in his dissenting opinion, saying, look, the Court basically side steps critical question of whether declaring code is copyrightable at all and reintroduces this copyright ability or the extent of copyright protection analysis into fair youth. And he sees that

as circumventing congresses policy in the statute. Right. So, in his view, if you look at the text of the statue, there is no distinction between declaring code and implementing code. And what the Court is doing, in his view, is introducing an artificial distinction that runs counter to congressional policy and very importantly runs counter to the text of the statute. Right.

And that's Justice Thomas's view, And so he first falls supports the side stepping this question because he's acutely aware of the fact that the majority is reintroducing this analysis under the rubric of the nature of the copyrighted work in Fair You. But even on the majority's own terms, Justice Thomas recognizes that the majority is expanding the domain

of fair use of every one of these factors. So to go back to what you indicated his discussion of the value of oracles that was emustrated, He says, well, this is an astoundingly new expansion of the concept of market harms in the fourth fair use factor. Where we've examined what kind of harm the copyright owner suffers in the existing market or in future markets, We've never really examined public benefits. The statute doesn't talk about the public benefits.

The statute doesn't talk about cost benefit analysis that focus on the harm to the existing our potential value of the work. And so that's why he falls the majority for expanding each of the fair Youth factors in a

way that doesn't too closely to the text. I think this was not unexpected um Justice Thomas in many ways of channeling his textualism and the need for the Court to be aware of its appropriate role in the copyright system to the text and to not second guest Congresses policy decisions that are apparent in the text and what he sees the majority doing is violating that rule. But in defense of the majority's opinions, by pushing everything into fair you, fair used has been recognized as this domain

where judges have significant freedom. Fair use is effectively a judge made job friend that is in the statue today, but Congress wanted courts to continue to develop it. So Justice Bryer, by pushing all of these decisions or all of these elements and expansions into fair youth has in many ways a perfect response to Justice Thomas's textualism, basically by saying, well, fair use is not a textualist doctrine.

Fair use is a doctrine that is judged made. And so does this decision then expand the idea of fair use in computer software? Oh? I think it absolutely does. I think there are three ways in which it does. There's a there's a short term inplication, there's a medium term implication, and then there's a long term implication that goes beyond computer software. I think the first thing in the short term is it reinforces the idea that fair

use protected borrowing. In the context of computer software, that interoperability writes the compatibility between developing technologies and older ones is an important value that should be factored into the fair use and out that had already been nascent in some prior case law. But the Supreme Court reaffirms that. I think it's important and very importantly. If it's significant enough, it constitutes a transformative use. So I think it makes

that that short term expansion to the reaffirmation. But I think what it also does, and this is the second point um in the medium term by by saying that there's one particular factor in the fair use analysis that is particularly appropriate for computer software, namely the factor called the nature of the copyrighted work. Um, it allows courts in the future to be able to examine types of

computer software that are being litigated for copyright infringements. So IFACT think that's the medium term is the implication is that fair use is going to be the next frontier of litigation for computer software types of code, classifications between them and the extent to which some of them are more purely functional as opposed to implementation of the program uh is something that we're going to start seeing courts

do under the rubries of the fair use analysis. And and then the last thing is In the long term, I think the implications of the courts fair use decisions go well beyond computer software. UM. I think the signals adjustice rier in the majority sent for the interpretation of fair use. In the long term, we're going to see carry over beyond computer software and and liberate the doctrine from the text of the statute. UM say that most of it can be decided by a judge. You don't

have to rely on a jury. And that fair used, very importantly is a way of determining the scope of the work, the scope of protection and a work. UM. So I think fair use very much as front and center and and has been given a new invigorated growth. So then does this decision settle questions for tech companies or does it open more questions and more litigation about fair use. I think it settles some right now in the short term, and it opens up more litigation for

fair use in different ways. And let me explain why. I think the core side. Stepping the question of copyright ability in the abstract for computer software allows tech companies to continue to develop and work under the assumption that computer software obtains protection under the copyright statute with out any problems. I think one of the big concerns that some had voice, certainly some a making head voice, was that the court could question the entire availability of copyright

for computer SEF. But of course there is no such things. So I think in that sense the status quo is preserved, at least for now. But insofar as fair use is going to become the next battleground, let's not forget that fair use is a very fact intensive determination. Fair use is not how the determination that happens completely in the abstract.

It's case by case. It's based on a factual record, and it involves a determination of what the borrowing entails, or how much was taken, and what its impact was. I don't think that in the abstract is going to cause any problems, but to the extent that there is significant borrowing of this kind that entails interoperability, I do believe that fair use is something that parties will start thinking about as the next battle ground if they're willing

to jump into litigation. Right fair use is cost intens it involves litigation. It's not something that can be determined in the abstract, given how fact intense of it is. So in short, I think the tech companies don't have too much to worry about. In many ways, it reaffirms the practice of existing borrowing, and it it recognizes the value of interoperability and computer programming. But um, and that's primarily because the court does not resolve the question of

copyright ability, which it leads for another day. Thanks for being in the Bloomberg Law Show. That's Professor Shambaganesh of Columbia Law School. It was day done. At the murder trial of former Minneapolis police officer Derek Chauvin in the death of George Floyd. Chauvin's defense attorney has been arguing that Floyd's death was caused by drugs, heart problems, and

other health ailments, not by Chauvin's knee on his neck. Today, Dr Martin Tobin, a lung and critical care specialist who is also well versed in fentanel deaths, took the stand and refuted that defense. Here's Prosecutor Jerry Blackwell questioning Dr Tobin, do any of those conditions have anything to do with the cause of Mr Foyd's death in your professional opinion? Whatsoever? None, whatsoever? And again, what was the cause? Us? That those conditions

don't matter? The cause of death is a low level of oxygen. Joining me is Richard Frays, a professor at the University of Minnesota Law School. Has the prosecution built

an overwhelming case so far? Would you say? Well? No, Although if you ever watch a trial, it's always amazing how convincing the prosecution case seems when it's only subject to cross examination, and then when the other side gets up and start to poke holes and produce its own experts, then you can turn around and say, Wow, it's not a strong prosecution case at all, And you know what should I think? So we're gonna have to wait and

see what the defense case looks like. But I would say that the prosecution has has done a very good job of laying out its key themes, anticipating even before they cross examination, anticipating where the defense is going to attack most forcefully. So, particularly on the issues of causation of deaths by Derek Chauvin and justified use of force. I think they've made as strong a case as they can. We'll have to see if the defense can come back. I think the use of force, I have never heard

of a police killing a prosecution. There aren't that many of them. I've never heard of one that had so many police officers testifying against the police officer that's on trial. You keep hearing that the blue wall has crumbled. Is that particularly effective for the jury to have police officers within his own former police department, the police chief, testifying

against him. I would think so. I don't know how the other than the kind of questions that we've seen a cross examination pointing out, well, how long has event since you arrested somebody? Did you ever arrest anybody? Do you do you understand that officers have discretion and have to make decisions on the street. Yes, yes, yes, the witnesses say, so, you know, we know that the defense has has tried to limit the damage that's been done.

They may at some point, just as the defense is essentially trying to blame the victim because he used drugs, they will also perhaps try to point the finger at the police department and say, all of these people are just trying to shift blame to this poor officers Chauvin. They may try that type me but I think I think I'm guessing that the jurors will be impressed by the police testimony against Chauvin. Yesterday, video was played and the question was whether George Floyd said I ate too

many drugs versus I ain't do no drugs. And some of the reporters said that the jury started to perk up during this where they had been you know, they've been in trance during the testimony of the eyewitnesses, but not so much during the use of force experts. But here they started to listen carefully to these particular words. Make a difference because the prosecution has admitted that Floyd

did drugs. Yeah, and I I thought that was a bit of a tempest in a teapot, because even if he said I too many drugs, and even if Chauvin heard that comment, that's just another red flag. This is somebody who may be in serious medical distress and you need to be careful that you don't push them over the edge. So I think it cuts both ways. And I can imagine the jurors probably thought, well, our job is to is to decide the fact. Here is a contested factual issue. We have ears, so we can decide

ourself what he said. So it doesn't surprise me that they perked up. There was testimony about the pills found in Floyd's car, as well as the police car. Is that something the prosecution introduced in order to take the bite out of the defense introducing it? Yes, that's a standard,

a standard move in litigation. If you know something bad is going to come out, introduce it yourself, above all to show you're not hiding anything, but also to put characterize it in a certain way that if you wait until the other side presents it, they're gonna characterize it their way, and that would be the first time the jury hears it. The first impressions are important. So it's absolutely standard for one side to to present damaging information that they know the other side is going to want

to introduce anyway. In a normal case, you wouldn't have the video that you have here, video from different angle. So I'm wondering how much experts testifying about the use of force matters in a case where you have the video and you see what was being done. Well, I guess I say two things about that. One is the the experts can can address the very important question of whether this was unreasonable force for a police officer in

that situation, so the jury can see what's happening. The jury doesn't know, uh from a police perspective and police good police policy was this okay, So that's what you need the experts for. And the video, even though the jury can see it, it's very important that the experts can see it because then they can't be dismissed as well. You're talking in abstractions. You weren't there. Uh, we were all there, and then the experts can look at it as if they were there and say, I, I know

what was happening there. I'm not talking in general terms, the defense said in its opening statement, and is pushing the the idea that the officers at the scene were distracted by this hostile crowd. Has there been any momentum

for that defense? Well, it is. Yeah. It's one of the themes that the defense keeps bringing up, and I'm sure we'll continue to bring up if for no other reason than just to uh generate, in another way, some sympathy for the defendant who uh Otherwise, just to judge by the cell phone video, which doesn't show much of the crowd, uh, there isn't much sympathy for the defendant, especially since the crowd is, if anything, raising red flags and warning the chauvin that what you're doing is dangerous.

So the the um the defense wants to to suggest that that Chovin and the other officers were distracted from Floyd and Floyd's condition by this angry crowd UH and the jury. We'll have to see if how the jury takes that. But I guess they're the expert testimony address that too, I believe and said, well, it doesn't appear that the officers were ever in any danger or that the crowd was ever showing any serious interest in intervening.

And again, what's good policing. What does a a well trained and conscientious police officer do in a situation like that. They don't let themselves get distracted by the crowd. I've heard time and again that this is going to come down to the cause of death and a battle of

the experts. Do you agree with that? Well, it is ours of death is an essential element of all three homicide charges, so it is the as is justified force, so that those are those are the issues the defense has to keep hammering on at least raise a reasonable doubt for UH causation or and or a reasonable doubt unjustified force. I don't think it's just a battle of

the experts. I think the way the prosecution has has laid this out, uh, sort of builds to the experts, but doesn't rely on them totally uh for cause of death. So you have the initially a large number of people who just saw the video or there on the scene uh and were shocked and and and uh disturbed by what they thought what appeared to be excessive force. Uh. And then you have the the use of force testimony. H. A lot of that was essentially saying you didn't need

to continue using this level of force. Your force was becoming increasingly less necessary minute by minute and increasingly more dangerous. These procedures can kill somebody. Well, that leads right into the causation argument. Yes, the procedures are dangerous and they can kill somebody, and in fact somebody did die. So that tends to support the idea that it wasn't just a coincidence that Mr. Floyd died at that moment, It was because of the stresses that the officers were placing

on him, meant physically and mentally. I taken though, that the defense is going to have experts that say he died because of the drugs in his system. Yes, and that's that's a possibility. Again, I think the prosecution will say, all we have to prove is that the officer's actions were a substantial causal factor, not the only causal factor. Uh. And if there are pre existing conditions that make the victim more vulnerable, will you take your victim as you

find them is a legal expression. Uh. And even if there these are conditions that aren't known to the defendant, the defendant's action uh, in the in the state's view, pushed the victim over the line into death. Uh. And again the prosecution will argue, it's not It's not likely that Floyd happened to die just at that moment from these pre existing conditions. I wanted to give your reaction to the testimony of Floyd's girlfriend, who was called under

a legal doctrine in Minnesota called spark of life. I hadn't heard about that before. Yeah, And I'm I I have no expertise on that, and I'm not sure i'd ever even heard about it before. It As a general matter, you would think that each side wants to humanize their their client or their their particular uh person of intra. So the defense usually wants to humanize the defendant. He's

not a monster. You know, he has a family, there are people who care about him, and in this case, the client of the prosecution in a way is George Floyd. Also the public, of course, so they want to to show that this isn't just just one more criminal being arrested. Uh. This this is somebody who had a life, had ups

and downs, including drug use. But it is Uh. It is a way to to to get past sort of abstractions and say no, this is this is or was a living, breathing human being whose life was was lost. I am a little surprised to hear. Again, I have

no expertise. I was a little surprised to hear that this isn't commonly as far as what's happening in the courtroom, you have prosecutors, these shifting prosecutors doing the questioning and the opening statements, and on the other side you have, at least in the courtroom the one defense attorney and his legal assistant. Does that have any impact on the jury in that either you think that this defendant is overwhelmed by the prosecution's team or the jury is not

able to connect with any one prosecutor. I'm sure the defense will will try to suggest that or argue that, you know, I don't have this huge team of lawyers that the other side has. Mr Chauvin has his me. I'm sure that they'll they'll try and use that, but um, I don't. I don't know that I will be effective

or not. The publicity before is one thing, But the publicity during the trial and the fact that you have protesters outside every day that the jury has to go past, I'm wondering if that might have an effect or might be after trial if he's convicted an appeal issue. Sure, well, there is obviously a great concern of the trial judge is well aware of and the prosecution is well aware of that. There there we have to give Mr Chauvin a fair trial. We all want that so that if

he's convicted. Uh No, one says, well, it was a show trial, it was rigged trial. Um so we we we don't want a conviction that where the jury felt pressured. I believe that the jury is not only their identity is being kept secret for now, but I believe they're coming and going in a way that they don't see much of the crowds. But we'll have to see if there's a conviction, and then some juror speaks out that would add strength to a defense appeal that the jury

was tainted. Finally, it aims as if it would have avoided some appella issues if the judge had moved the trial out of Minneapolis. Well, but as the judge said, where are you going to move it to? This this case has such wide publicity, uh, not just in Minneapolis, but around the country and around the world. It would be difficult to find another court in Minnesota that wouldn't have many of the same problems and would probably have

less court security. And of course, the the logistics of holding a trial outside of Minneapolis for all the attorneys and the witnesses are much much greater. So it's it's not surprising to me. It's a hard, hard decision. I'm sure the defense will appeal on that ground, but judges, judges have substantial discretion and deciding whether all things taken into account, whether the raile needs to be moved somewhere else, and I'm pretty sure that on that issue, the trial

judge will be upheld. Thanks for being on the show. That's Professor Richard Phrase at the University of Minnesota Law School and that's it for the edition of the Bloomberg Law Show. Remember you can always at the latest legal news by subscribing to our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com slash podcast Slash Law. I'm June Grosso.

Thanks so much for listening, and please tune into The Bloomberg Law Show every week now at ten pm Eastern right here on Bloomberg Radio. Pisoda Law School about the trial