Open-Source; Open-Season; Open-Fire: <i>Google v. Oracle</i> and the Vulnerability of Code to Copyright Infringement by AI Harvesting

In Google v. Oracle, the Supreme Court was forced to decide if Google’s copying of 11,500 lines of computer code from Oracle without permission constituted copyright infringement. Much was on the line, including precedent concerning the copyright status of millions of lines of code nation-wide. In the lengthy decision, the Supreme Court avoided the central issue of holding whether the copied “declaring code” could be protected by copyright or instead was a functional tool outside of the Copyright Act. Instead, it punted the issue, assuming for the sake of argument that the declaring code that was taken was in fact copyrightable material. This forced the Supreme Court to review Google’s copying under a skewed fair use analysis and find that Google’s copying was a fair use. In the end, the Supreme Court came to a narrow decision: Google had done nothing wrong, and it did not owe Oracle anything. While its holding was intended to be narrow, the Court did not anticipate or account for the parabolic rise of generative artificial intelligence (“AI”) and the potential misuse of its dicta against computer code copyright holders. The lack of guidance on the copyrightability of code leaves intellectual property law in a period of purgatory as generative AI picks the pocket of protectable software left and right.