Google's Win for Open Source

“What happened here, that no one expected, is the Supreme Court found fair use as a matter of law," tech lawyer Marta Belcher said.

By Daniel KuhnLayer 2
AccessTimeIconApr 6, 2021 at 4:19 p.m. UTCUpdated Sep 14, 2021 at 12:36 p.m. UTC
By Daniel KuhnLayer 2
AccessTimeIconApr 6, 2021 at 4:19 p.m. UTCUpdated Sep 14, 2021 at 12:36 p.m. UTC

On Monday, the U.S. Supreme Court sided with Google over Oracle in a major copyright battle about the “fair use” of code. The ruling is widely seen as a boon to the open-source software movement and may have implications for the cryptocurrency industry. After all, most crypto projects aren’t protected by copyright.

The backstory: When developing the Android operating system, Google ported over 11,000 lines of code from Java SE, a programming environment now owned by Oracle but built by Sun Microsystems. It wanted to ensure interoperability between the platforms. Oracle argued that re-using portions of its API, a sort of bridge between two types of code, was copyright infringement.

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Why it matters: The court’s decision upholds a longstanding Silicon Valley tradition: coding by appropriation. Programmers steal and modify, copy and paste is ubiquitous – and not just in crypto. Developers can now rest easy knowing they can take codified ideas and tinker with them to build something new (transforming the code to iterate is key to fair-use doctrine).

Recently, a popular decentralized exchange issued its latest software version under a “business source license,” to prevent rival projects from replicating its code base wholesale. That sort of development isn’t uncommon in crypto: Binance Smart Chain is essentially a remodeling of Ethereum, as is the JPMorgan-incubated Quorum blockchain now owned by ConsenSys.

That’s just par for the course. There’s a direct line from Xerox to Apple’s Macintosh to Microsoft Windows, with each iteration lifting good ideas from its predecessor. The new ruling won’t allow reproduction of entire operating systems or smartphone designs (unless they’re already open source), but clarifies that certain bits of code – even when proprietary – have a utilitarian function, and, in some sense, belong to the world.

Protocol Labs, the open-source shop behind Filecoin and IPFS, submitted a “friend of the court” brief on behalf of Google. “The TL;DR [of the Supreme Court decision] is any time you are using an UI or API duplication, it's basically always going to be fair use,” Marta Belcher, a technology lawyer and outside counsel for Protocol Labs, said over Zoom. The actual decision went far beyond what Belcher had anticipated. 

“Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program,” Justice Stephen Breyer wrote for the 6-2 majority. Oracle, of course, balked at the decision, saying it is anti-competitive. "The Google platform just got bigger and market power greater," a rep said in a statement.

There are still lingering questions. For one, the court didn’t rule on whether APIs could be copyrighted, but argued from the position as though Oracle’s copyright was in place.

“That's what's so interesting about this case. It used to be that fair use, or figuring out what is fair use, was a question for the jury, meaning, it was never clear,” Belcher said. “What happened here, that no one expected, is the Supreme Court found fair use as a matter of law. You don't need a jury to decide whether reimplementing an interface is fair use, bringing most development out of the realm of squishy, wishy‑washy uncertainty. That type of clarity – bright, clear lines – is really important for the open source space.”

Protocol Labs is commonly viewed as an antagonist to Big Tech. I asked Belcher if she thought it was odd rooting for Google in this instance. She replied:

“Often civil liberties groups root for a plaintiff who was very unsavory or who has done unsavory things because a case, if it gets to the point of a decision, could have bad effects on a lot of good actors."


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