On Monday April 5th, the United States Supreme Court decided two cases with important long-term implications for tech companies. The first allows software companies to re-use portions of APIs developed by others, while the second will add momentum to calls for regulation of social media platforms.
API Copyrights – Google LLC v. Oracle America, Inc.
In Google v. Oracle, the Court addressed Google’s incorporation of parts of the Java API into its Android platform. In 2005, Google acquired Android and sought to attract programmers who were familiar with coding in Java. Google attempted to license Java from Sun Microsystems but the talks broke down. (Sun was later sold to Oracle.) Google then copied 11,500 lines of code for the Java method calls such as java.lang.Math.max(int x, int y) and the declaring code for the Java libraries, but not the actual 2.86 million lines of implementing code which were instead re-implemented in Android.
In his majority opinion for six Justices, Justice Stephen Breyer assumed for purposes of argument that all of the Java API was copyrightable. However, Breyer then concluded that Google’s use of the method calls and declaring code was a permissible “fair use.” The “fair use” doctrine requires courts to consider (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Typical examples include copying of works for teaching, research, criticism, or commentary purposes, or creating parodies of existing works.
Breyer concluded that all of these factors favored “fair use.” The “nature of the copyrighted work,” he found, was that the declaring code portion of the API is a user interface allowing programmers to communicate with each other, unlike implementing code. The “purpose and character of the use,” although commercial, was only to allow programmers to call upon tasks without discarding a familiar programming language and learning a new one. The “amount and substantiality” favored fair use, he found, because Google copied only 0.4% of the entire codebase. In analyzing market effects, he considered the public interest as well as statements made during the lower-court trial indicating that Sun wanted the Java API to be widely used.
Justice Thomas dissented and was joined by Justice Alito. Thomas pointed out that Apple and Microsoft were able to create their own APIs, implying that Google’s copying had given it an unfair advantage in attracting programmers to the Android platform. Thomas also viewed the “fair use” factors differently, finding that they strongly favored Oracle.
Implications. The case has important implications for future software development. Although “fair use” determinations will be fact-specific, Justice Breyer’s opinion focused on the ability of programmers to transfer their skills. This may impact companies that have invested in developing their own software ecosystems, or that seek to benefit from well-established ecosystems developed by others. The ruling will likely lead to further attempts at copying and more litigation as the boundaries of “fair use” in software are explored further.
Biden v. Knight First Amendment Institute
In Biden v. Knight First Amendment Institute, the Court dismissed a lawsuit against President Trump on behalf of users he had blocked from his now-defunct Twitter account. The lawsuit alleged that President Trump was acting in a governmental capacity on Twitter in his use of @RealDonaldTrump, hence blocking users was a violation of their free speech rights. The Court dismissed the case as moot, which was widely expected since he no longer holds office. (Biden’s name was substituted in the case since Trump was sued in his official capacity and Biden is now President.)
Notably, Justice Thomas added a 12-page concurring opinion endorsing the view that large social media companies should be treated as “common carriers,” similar to telephone operators, railroads, shipping companies, etc. Under common carrier regulation, companies are immune from liability but are required to carry all content on a non-discriminatory basis. In Thomas’ view, Section 230 of the Communications Act is providing an intermediary liability shield, yet no duty of common carriage has been imposed by Congress.
Thomas also sketched a First Amendment analysis finding that common carrier regulation would not deprive the social media companies of their free-speech right to exclude content the companies find objectionable. As an alternative, Thomas speculated that legislatures could treat the companies as places of “public accommodation” like restaurants or hotels, which are not allowed to discriminate among customers.
This comes on the heels of a statement Justice Thomas issued last October in a different case stating his belief the courts had widened the protections of Section 230 beyond what was intended by Congress. In his view, too many cases are being excluded before being evaluated on their merits. He also indicated an interest in reviewing when an interactive computer service is “responsible” for content, such as when editing or attaching commentary.
Implications. The “common carrier” theory has been growing in the United States among political conservatives who are dissatisfied with recent actions by Facebook and Twitter. Justice Thomas’ concurring opinion greatly elevates the profile of that approach and adds momentum for legislation at either the federal or state level. While his views may not reflect those of his colleagues, it may also invite more litigation from those seeking to advance his approach.
Meanwhile, there is also significant dissatisfaction on the political left with the power of social media companies, although they have generally proposed limiting protection under Section 230 rather than imposing common-carriage obligations. Companies who are protected by Section 230 should remain vigilant for new challenges to the law that may create costs for them not just in Congress and at the state level but in cases working through the judiciary.
Access Partnership is prepared to help companies navigate the implications of these rulings. Companies should develop holistic government affairs strategies for the legislative, executive, and judicial branches of the US government, as well as global strategies, that can be synthesized into a holistic strategic approach to advance a Fair Tech policy agenda. Email Mike.Clauser@accesspartnership.com to learn more.