Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch and Brett M. Kavanaugh joined the majority opinion. Judge Amy Coney Barrett was not involved in the case, which was argued before she joined court.
Dissenting, Judge Clarence Thomas, joined by Judge Samuel A. Alito Jr., said skipping the first question was a serious analytical faux pas. “The court is wrongly avoiding the main question we were asked to answer,” he wrote, adding that it would have ruled that the code was protected by copyright laws.
The majority’s approach was inexplicable, Judge Thomas wrote, and its rationale – that technology is changing rapidly – was odd, as change “has been a constant when it comes to computers.”
Justice Breyer used what he called a “far-fetched” analogy to describe what the impugned code did. “Imagine that you could, via certain keys, order a robot to move to a particular binder, open a certain drawer and choose a specific recipe,” he wrote. “With the correct recipe in hand, the food processor then moves into your kitchen and gives it to a cook to prepare the dish.”
Justice Breyer wrote that the four fair use factors set out in the Copyright Act all supported Google. The nature of code, he wrote, “is inextricably linked to a general system, the division of computing tasks, of which no one claims to be a genuine subject of copyright.”
Google’s use of the code, he added, created something new. “It seeks to expand the use and usefulness of Android-based smartphones,” Judge Breyer wrote. “Its new product offers programmers a highly creative and innovative tool for a smartphone environment.”
Google also didn’t copy too much code from Oracle. The 11,000 lines of code involved, he wrote, represented 0.4% of the relevant code universe.