The justices will close their first week back on the bench by finally hearing argument in Google v Oracle. The case has been pending at the Supreme Court for almost two years; it originally was set for oral argument in March but was rescheduled to this fall when the coronavirus pandemic scrambled the spring argument sessions. It has the potential to be one of the most important copyright cases of the decade.
The case involves a dispute about the Android operating system, which Google designed when it entered the smartphone market. Because Google wished that operating system to understand commands commonly used in the Java SE platform (now owned by Oracle), it used within Android about 11,000 lines of code from Java SE. The question for the justices is whether Google’s reuse of those lines of code violates the copyright laws. A jury held that Google’s actions were “fair use,” but the U.S. Court of Appeals for the Federal Circuit held that Google violated Oracle’s copyright and that its actions as a matter of law could not be regarded as fair use.
The case involves a foundational principle in copyright law: the dichotomy between “ideas” and “expression.” Copyright law broadly protects expression, but it endeavors not to allow that protection to give any author the exclusive right to exploit any idea. In the terms of Section 102 of the Copyright Act, copyright protection “(i)n no case … extend(s) … to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Under Section 102, courts apply a “merger” doctrine, which reasons that copyright law does not protect any expression that is necessary to use an idea, because an exclusive right to the expression would grant an exclusive right to the idea. To gain exclusive rights to an idea, traditionally, the innovator needs to satisfy the (much more onerous) standard for obtaining a patent.
Google’s first argument in this case is that the lines of code it reused in Android were necessary for Google to employ the system that the Java platform creates. The Java platform includes thousands of pre-written methods, modules of code that perform desired functions (for example: Which of two numbers is larger? What is the difference between these two numbers? Are these two numbers the same?). Java organizes those methods into classes, which in turn are organized into packages. If a developer writing in Java wants to call for the use of a particular method, the developer uses a particular declaration, which specifies the package and class in which the method appears. When Google created the Android system, it wrote from scratch (or purchased) the great majority of the code for that system, including all of the code that implements any methods available in Android. Google wanted, though, to make the new system easy to use for developers familiar with Java. Accordingly, it included within Android all of the lines of code that provide declarations for methods included in both Android and Java. Those 11,000 lines of code amount to 0.5% of the roughly three million lines of code in Java and about 0.1% of the roughly 15 million lines of code in Android.
For Google, the key to the case is that those copied lines were the “interface” for Java. Google (backed by several groups of academic amici) argues that the idea/expression dichotomy, as applied to software, includes a broad exemption for interfaces because they fall squarely on the idea side of the dichotomy, while the code that implements particular pieces of functionality more commonly falls on the expression side.
Oracle, by contrast, argues that the language in the declarations is highly expressive, in the sense that it is largely arbitrary. The original designers of Java could have accomplished exactly the same thing as they did in an almost infinite number of ways, changing the short names that identify particular methods or the names or sequences of the packages and classes into which those methods are arranged. Because the functionality of Java could have been implemented equally well by numerous other arrangements and the declarations that would correspond to them, Oracle argues that the merger doctrine does not protect Google’s decision to copy the words of Oracle’s code.
A pair of color images in Oracle’s brief illustrates the two sides of the point. Those images detail the intricate structure of the system of declarations included in Java. For Oracle, the precise copying at that level of intricacy compels a remedy. For Google, the intricacy of the data structure and its interactions shows that what Google did is precisely what copyright law permits: copying a system.
Google emphasizes that including the challenged lines meant that developers familiar with Java could use the same declarations they always used to accomplish particular functions, instead of learning an entirely new set of Android-specific declarations. Because Google had to use the exact words of the existing declarations to accomplish that purpose (calling the functions in the customary Java way), Google argues that the merger doctrine protects its use of that code. Oracle responds, in turn, that Google did not need to copy those declarations in order to get access to the various methods included in Java; it needed to copy them only to make it easier for developers to use Google’s new Android system. For Oracle, making it easier for developers to shift from Java to Android is not the kind of functionality that the merger doctrine protects.
If the court accepts Oracle’s argument that Google’s reuse of the Java interface infringes Oracle’s copyright in Java, the court would then confront Google’s argument that its activity was “fair use.” Fair use is a notoriously malleable concept under the Copyright Act, which protects certain otherwise infringing uses because of the particular circumstances of the use. The fair-use inquiry turns on a balance among four distinct factors: whether the use is transformative; the nature of the work; the substantiality of copying; and the effect on the market for the original work. In the trial court, the parties did not submit detailed jury instructions on fair use, but rather agreed to a general question of whether the use was fair. Because the jury found that the use was fair, all agree that the verdict should be upheld if the evidence would have permitted a reasonable jury to reach that conclusion on any understanding of the factors.
The parties debate all four factors at considerable length. On the first point, Google argues that its use was transformative, pointing to its use of the Java declarations to create an entirely new operating platform; Oracle responds that there is nothing transformative about the use because Google copied Oracle’s code verbatim. On the second point, Google argues that the functionality of the declarations weighs in favor of fair use; Oracle argues that the arbitrary choices in the selection of the particular code in the declarations makes the code highly expressive, which weighs against the use being fair. On the third point, Google argues that the copying of 11,000 out of millions of lines of code is insubstantial; Oracle argues that 11,000+ lines “is a lot regardless of the overall size of the work.” Finally, Google argues that it did not interfere with the market for Java because Java is not suitable for smartphones; Oracle argues that as a platform for software development Android competes directly with Java, pointing to the license agreements that Oracle offers to the developers of other software platforms that wish to use the declarations Google copied.
The court in May (several months after the original briefs were filed) called for short additional briefs from the parties discussing the standard of review for the fair-use verdict, including how the Seventh Amendment might apply to this case. The Seventh Amendment generally requires that a jury resolve factual questions in civil litigation and precludes courts from stepping in to overturn factual determinations that fall within the appropriate province of the jury. In this particular case, the court’s interest in the matter might stem from an amicus brief filed by a group of civil procedure, intellectual property and legal history professors, who argue that the history of the Seventh Amendment in this context compels recognition of the jury as having broad authority in assessing the fairness of any particular use.
(Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among counsel for Google in this case. The author of this article is not affiliated with the firm.)
Case preview: Justices to weigh in on landmark copyright battle between Google and Oracle,
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