The judges ended the first week of the new term with a hearing on Google v Oracle, a case pending in the Supreme Court since fall 2018. The high stakes controversy poses a challenge for Oracle (the current copyright owner of the Java platform created by Sun Microsystems) against the Android operating system that Google developed when it entered the smartphone market.
Google wanted Android to be accessible to developers familiar with Java. Although Google bought or rewritten all of the code that provides the functionality of Android, it reused the Java "declaring" code (about 11,000 lines) that programmers use to invoke certain commands. (You could imagine it reusing phrases like "Open Sesame" but recreating the mechanisms for opening and closing doors.) A jury found that Google's actions were "fair use," but the US Court of Appeals for the Federal Circuit believed that Google had infringed Oracle's copyright and that its legal actions could not be viewed as fair use. If the case goes to the Supreme Court, Google can win two ways: by convincing the judges that the copied code is not copyrighted at all, or by convincing the judges to uphold the jury's verdict that that Copy from Google "Fair."
Wednesday's hearing is a good example of a challenge to the formalistic structure the court has adopted for its arguments over the phone. Since each of the judges speaks in turn in the order of seniority, there is little or no opportunity for discussion among the judges. In a relatively complex case like this, we can see some judges focusing exclusively on one issue while others focusing exclusively on another, so we have no easy way to see a likely direction in which the court will take the case could strike as a whole.
Thomas Goldstein argued on behalf of Google. During his presentation, a number of judges questioned Google's argument that copyright does not protect the declaring code. In simple terms, Google argues that the declaring code is so "functional" that it is not copyrighted, which only protects the author's "expression" and not the author's "ideas". As part of this point, Google relies on a "fusion" doctrine that copyright law does not protect if only one word form produces the desired result. Here, Goldstein argued, Google could not have achieved its desired goal (making Android accessible to Java developers) without using the "declaring code" developers are familiar with, despite having a new set of underlying accesses lying operational functions could have enabled explanations.
This argument met with a number of objections, starting with Goldstein's first interlocutor, Chief Justice John Roberts. When Goldstein pointed out that Google would not have been able to provide Java functionality without copying the Java declarations, Roberts replied, "The only reason there is only one way is that the Sun and Oracle product printing has been very successful There were many ways of doing this than (Sun originally wrote it). And the fact that … programmers really liked it … it seems a bit too much to punish them for it. "Roberts continued," The cracking The safe may be the only way to get the money you want, but that doesn't mean you can. "I mean, if it's the only way you can get it by getting a license."
As Goldstein's presentation progressed, several other judges seemed to share the skepticism Roberts showed on the point. For example, Judge Clarence Thomas asked, “When should we determine if there is a merger or not? When is Oracle or Sun developing this program? Or when you decide to use it? "Justice Elena Kagan offered a similar hypothesis in which a large group of people created evidence for a mathematical theorem, resulting in some being" better than others – some are elegant and some less elegant "." I would think " , Kagan continued, "that this is quite analogous to the situation here, that there was more than one way, and (Sun) happened to find one particularly elegant."
Building on that hypothesis, Justice Neil Gorsuch noted that he was “stuck in a similar place as Justice Kagan, which means I want to share the facilities of a more successful rival because they came up with a particularly elegant or better product, efficient or successful, or high adopted solution in the market. Echoing an earlier comment from Justice Sonia Sotomayor, Gorsuch asked Goldstein how to deal with the fact that other tech companies like Apple and Microsoft “were actually able to design phones that would work flawlessly without getting involved this type of copying. "Goldstein replied that Apple and Microsoft use completely different languages." It's like saying that we can't have a merger in English because someone could write something in French, "Goldstein said.
Joshua Rosenkranz took the metaphorical podium on behalf of Oracle, followed by Malcolm Stewart on behalf of the Attorney General in support of Oracle. In this half of the argument, two important questions about Oracle's position emerged. The most prominent started with Justice Stephen Breyer's comparison of Oracle's declaring code with the QWERTY typewriter keyboard. As Breyer explained:
You didn't have to have a typewriter QWERTY keyboard to start with, but … if you gave someone copyright for it now, they would control all of the typewriters, which really has nothing to do with copyright. Or it is like switchboards in old-fashioned telephone systems. You could have done it 1,000 ways. Once you've done this, all the operators around the world will be familiar with this system and you don't want to give a copyright holder a monopoly on phone systems.
Kagan's line of thought followed directly that of Breyer when she proposed a hypothesis about a grocery store that “developed a really great way of dividing all of my fresh produce, all of my fruits and vegetables into those categories and subcategories that are very intuitive to the shopper . And that's not the standard way. … It's a novel. And it's great. And one competing grocery store – all competing grocery stores – want to copy it. For Kagan there are “all kinds of organizational methods in the world. You will know if it is the QWERTY keyboard or if it is the periodic table or if it is the system of kingdoms, classes, phyla, etc. that animals are organized into. I mean there are a thousand ways to organize things. “She asked Rosenkranz if he suggested that the first person to develop such an organizational scheme could" have a copyright and then prevent others from using it ".
Kagan offered Stewart a parallel hypothesis that included "a new and very useful keyboard – not QWERTY, but something better than QWERTY". If a cell phone manufacturer copied the new keyboard layout and used it on their next cell phone, Kagan asked, would that be fair use? When Stewart agreed that it might well be fair, Kagan replied, “Why is it different here? … Google used the Java interface so programmers wouldn't have to learn a completely new coding system, just like the cell phone maker used my keyboard so people could rely on something familiar. "
Sotomayor provided a similar distinction between the "implementation codes" that the industry has long believed to be copyrighted and the "declarative codes" or "application programming interfaces" that were traditionally not considered proprietary. Sotomayor concluded her comment by asking Rosenkranz, "Please explain to me why we should change now what the industry has viewed as copyrighted items. Why should we change this understanding?" Later, when discussing the problem with Stewart, Sotomayor noted that Google's work "essentially shifted the Java platform from a PC to cell phones". "Why wasn't that a transformative step?" She asked. "Why wasn't that a giant leap in fair use?" Stewart responded that Google's use of the code in Android is not transformative because "the code does exactly the same thing it did on Java".
A parallel theme in the second half of the argument was the feeling that the Federal Circuit was too quick to dismiss the jury's fair use judgment. Justice Samuel Alito was perhaps most focused on this point when he addressed it with both Goldstein and Rosary. He once asked Rosenkranz why the Federal Circuit hadn't "asked whether the evidence presented in court, seen in the most favorable light for Google, was legally sufficient to support the jury's judgment of fair use." Thomas and Gorsuch raised similar concerns, with Thomas Stewart specifically asking whether "the Federal Circuit applied the correct standard of verification," and Gorsuch Rosenkranz stated that, as a rule, "factual issues such as fair use … are checked for material evidence in the file" . and the Federal Circuit didn't do that here. "Gorsuch stuck to the point and asked Rosenkranz again," Why shouldn't the Federal Circuit have used this traditional standard of auditing? " Jury and general judgments applies? " Rosenkranz responded that the courts were well equipped to weigh the fair use factors for themselves. It cannot be the case, he said, that fair use must always be decided by a jury.
We have to wait for the final decision to see how the judges turn this melting pot of perspectives into a resolution to the case.
(Disclosure: Goldstein & Russell, P.C., whose lawyers contribute to SCOTUSblog in various functions, is one of Google's advisors in this case. The author of this article is not affiliated with the company.)
Argument Analysis: Judges discuss the legality of Google's use of Java interfaces in Android software code.
SCOTUSblog (October 9, 2020, 2:40 p.m.),