November 28, 2023

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On Monday, the Supreme Court said it was kosher to copy someone else’s computer code in some cases. This earned Google a victory in a decade-long court battle with Oracle over the courage of the Android smartphone system.

I’ll explain why the decision made the tech industry easier and how it might be relevant to artists, writers, and archivists. I also want us to think about it: why do sensitive legal issues seem inevitable in technology right now?

What was the legal case?

Oracle controls software programming technologies called Java, which are a building block for many apps and digital services. Google used a relatively small portion of the Java computer code in its Android operating system. This has made it easier for software experts to create smartphone apps.

In the case of Google versus Oracle America, Google said it was standard practice to copy what are known as application programming interfaces (APIs) to ensure that technologies from different companies can work together. Oracle said Google stole its software and asked for billions of dollars. Each company said it was trying to save the tech industry from ruin.

This is a complicated affair with lawyers on both sides and the judges looking for analogies – safe cracking, soccer match books, and restaurant menus – to explain APIs. In his majority opinion on behalf of six judges, Judge Stephen G. Breyer compared APIs to the accelerator pedal, which instructs a car to move faster, and a keyboard that enters a letter when you press a certain key.

One big question went unanswered, but it might not matter.

Google won. Although, as my colleague Adam Liptak wrote, the Supreme Court previously announced it would answer two questions: whether companies like Oracle could copyright APIs, and if so, whether Google’s use would be an exception to what is called fair use copyright. A majority of the judges only answered yes to the second question.

Two judges, Clarence Thomas and Samuel A. Alito Jr., said it was a mistake to circumvent the question of whether APIs are copyrighted. Justice Thomas wrote that he said yes.

Although the judges left an open question, intellectual property lawyers told me the decision should bring comfort to companies using APIs. The Supreme Court essentially blessed what Google did because it used APIs and turned the software into something new that we can all benefit from.

Many technologists had sided with Google – even those who are not normally fans of the company. They feared that companies that could prevent competitors from using APIs or charge exorbitant prices for their use could discourage companies from inventing new products. For them, the Supreme Court decision brought relief.

“This will be of great comfort to many companies trying to get started and be compatible with their competitors,” said Charles Duan, a senior fellow at the R Street Institute, a think tank advocating free markets and limited government .

Oracle said Google “stole Java and had litigation for a decade like only a monopoly can”. (These companies don’t like each other at all.)

What are the possible effects?

Duan and other experts I spoke to said they were very excited to see the judges support a broad view of the legal right to fair use. That is the concept that if you extract someone else’s words or pictures and add enough of your own creativity, you don’t have to seek or pay their permission.

However, determining whether something falls under the fair use exception can be complicated and even feel subjective. That month a court ruled that a picture of Prince taken by Andy Warhol was not a fair use of a photo.

Judge Breyer wrote that when judging whether there is fair use, the courts should consider not only technical issues related to the two parties involved in the case, but should also consider whether copying will bring any benefit to society.

Kendra Albert, a clinical instructor at Harvard Law School’s Cyberlaw Clinic, told me the decision could lead to more legal protection for artists, people who create fanfiction, and a group that represents Albert, the old software like previous issues archived by Microsoft Excel.

Technology is basically all litigation.

Let me leave you with one point that I discussed with Mark Lemley, a professor of copyright and antitrust law at Stanford Law School.

The tech industry is now facing legal questions: How should the first change apply to social media companies? Do antitrust laws need to be rewritten for big tech? Does a 25 year old internet law preserve or destroy people’s freedom of expression? Tech is now about laws, not just computer code.

  • A SCOTUS shower through social media: Also on Monday, Justice Thomas mused that huge sites like Facebook might not deserve legal protection for monitoring what people say online. Adam Liptak wrote that “Justice Thomas’ views on the first amendment may be idiosyncratic,” but that his opinion “reflected the frustration, especially among conservatives, about letting private corporations decide what the public can read and see.”

  • A window into the use of a technical superpower: BuzzFeed News reported that individuals in nearly 2,000 police departments and other taxpayer-funded agencies have used Clearview AI to perform approximately 340,000 searches on people’s faces – often without the knowledge of their superiors or the public.

    My colleague Kashmir Hill has written extensively on Clearview’s facial recognition technology that some people desperately want and others fear.

  • When Missed Calls Was Big Business: Since mobile phone calls were very expensive in India, many people communicated by dialing friends and hanging up. Rest of World explains how one company capitalized on this habit by using missed calls to deliver cricket scores, digital songs, and more. Everything imploded when smartphone data went dirt cheap in India.

Evan Manivong, a gymnast at the University of Illinois, put the landing on a vault and then showed his Covid-19 vaccination card. Please make a public health campaign out of his video.

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