October 9, 2020 | technology | No Comments
Google v. Oracle, a decade-long war over the future of software, neared its end in the Supreme Court this week as a battle of metaphors. Over the course of two hours, justices and attorneys compared Java — the coding language that Oracle acquired in 2010 — to a restaurant menu, a hit song, a football team, an accounting system, the instructions for finding a blend of spices in a grocery store, a safecracking manual, and the QWERTY keyboard layout.
“Prediction: The side that wins the metaphor battle will win the case,” tweeted University of Oklahoma College of Law professor Sarah Burstein.
The reliance on familiar analogies wasn’t necessarily surprising. Google v. Oracle covers a complex question: what elements of computer code can be copyrighted, and if that code is covered by copyright, when it’s still legal to use pieces of it under fair use. The argument dates back a decade to when Google reverse-engineered Java while building its Android platform. In the process, it copied the “structure, sequence, and organization” of some Java application programming interface (API) packages, which enable basic computing actions. Oracle sued, and after multiple trials and a coronavirus-related delay, the Supreme Court heard the argument this week.
After a morning of long-delayed oral arguments on Wednesday, both sides declared a win. Google head of global affairs Kent Walker said the court “confirmed the importance” of the legal rights protecting software interoperability, while Oracle general counsel Dorian Daley declared that the court would “agree with us that all software is covered by copyright.” Tiffany Li, a fellow at Yale Law School’s Information Society Project, cautioned against reading too much into the proceedings. “It’s difficult to guess how a case will turn out based on the arguments,” she tells The Verge. “But it’s interesting because you get a little bit of perspective on what the justices might be particularly interested in.”
Constructing metaphors for Java’s API let justices interrogate whether the code was a basic tool that Google was using because it was the most efficient option, or whether it was a creative original work that Google was unfairly exploiting to avoid doing its own work. “Someone could argue that if a team takes your best players, a football team, that the only way that those players could actually perform at a high level is if you give that team your playbook. I don’t think anybody would say that is right,” argued Justice Clarence Thomas — loosely equating Java code libraries with the football players.
Google attorney Thomas Goldstein argued that the football analogy was missing the point — Oracle wasn’t trying to keep “fans” for its sports team, just “prisoners” for its Java SE platform. “Why would Congress want a rule that says: ‘okay, these developers are extremely familiar with these commands. They’re used to write creative computer programs. Let’s just make it as inefficient as possible for them?’” he said. “The only upshot of Oracle’s rule that it wants you to adopt is to make computer programming incredibly inefficient so that we have fewer creative computer programs.”
A recurring comparison to keyboards was more sympathetic to Google. “You didn’t have to have a QWERTY keyboard on typewriters at the beginning,” just like Google could have built code that didn’t reference Java, said Justice Stephen Breyer while questioning Oracle’s attorney. “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.”
The justices didn’t necessarily seem convinced that Oracle’s API wasn’t protected by copyright, but they seemed potentially sympathetic to arguments that Google applied the code transformatively in a way that counts as fair use. “My sense is that Google is more likely to win on fair use than on copyrightability,” says Berkeley Center for Law & Technology co-director Pamela Samuelson.
Google v. Oracle could have massive implications for software developers. A group of 83 computer scientists, including many early software design luminaries, filed a brief arguing that a Supreme Court win for Oracle would discourage developers from building on existing code to make something better or from designing interoperable software. “Software will become harder to use because switching to a competing service will require users to learn an unfamiliar interface,” they warned. “Rather than switch to more innovative software, users will remain locked in to outdated systems.”
But the mess of metaphors left doubts about how much the justices grasped the difference between an API — which is a key piece of operational code that lets different pieces of software work together — and the code of a discrete app. “What stood out to me was that I am not sure if Google’s attorney made it really clear what an API is. And that’s not ideal,” says Li.
And unfortunately, most of the hearing’s analogies don’t map very easily to actual copyright law. A QWERTY keyboard would be covered by patents, not copyright, for instance — and patent infringement charges were dropped from the case years ago. (As Oracle’s attorney Joshua Rosenkranz pointed out, “there was never anything expressive in QWERTY. … It was purely mechanical.”) Comparisons like the football playbook get at general notions of fairness, but that’s not necessarily what this case should hinge on. There are also even more legal questions that the court could rule around, like whether an earlier jury verdict should have been thrown out.
On the bright side, Li was at least somewhat heartened by the amount of time given to questions about the future of computing, not just the logic of coding. “Many justices are asking, what does this mean for the software industry?” she says. “And it’s interesting because people who actually work in tech, I think most of them realize that there is just so much use of free and open source code that’s just foundational in so much software. So limiting the ability for people to use this kind of thing or to create their own code that might copy or borrow from or refer to existing code — that would severely limit the industry.”