10 Dec 2019 in Newsletter
With Billions of Dollars On the Line, The Supreme Court Will Weigh in On Oracle v. Google Copyright Java Case
The Supreme Court recently granted a writ of certiorari to rule on the nearly decade long fight between Google and Oracle regarding the copyright infringement lawsuit centered on Google’s Android operating system being built on stolen code from the Java software platform. Google calls the case, “the copyright case of the decade.” The dispute revolves around Google’s verbatim copying of 11,500 lines of Oracle’s Java Standard Edition code and 37 Java application programming interface packages (“APIs”) for the backbone of Google’s Android operating system. Google’s defense is that APIs are not copyrightable and even if they are, their use by Google is excused by the fair use doctrine of copyright law, as was found by a jury at trial. The U.S. Court of Appeals for the Federal Circuit disagreed, holding that (1) a software interface is copyrightable, and (2) re-using it to create a new product is not fair use.
As explained by a group of computer scientists, the “interface is the computer code that forms a bridge, allowing computer applications, platforms, and devices to communicate. Interfaces are re-used to connect new and innovative applications.” Google supporters are numerous and include developers such as Microsoft, Red Hat, and Mozilla, which have asserted that the Federal Circuit’s ruling would harm developers’ ability to freely build new programs that work with existing software platforms.
The issues to be decided by the Supreme Court are (1) whether copyright protection extends to a software interface and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use under existing copyright law principles.
At the first jury trial, the jury found that Google infringed Oracle’s copyrights in the Java code, but deadlocked on whether the copying was excused by the fair use defense. After the verdict, the district court found that the Java API packages were not copyrightable as a matter of law and entered judgment for Google. Upon Oracle’s appeal of the trial court’s judgment, the Federal Circuit reversed, finding that certain software code and the structure, sequence, and organization (“SSO”) of the Java API packages are entitled to copyright protection. The Federal Circuit remanded the case back to the trial court with instructions to reinstate the jury’s infringement verdict and for further proceedings on Google’s fair use defense and, if appropriate, on damages.
Google then appealed the Federal Circuit’s ruling to the Supreme Court. The Supreme Court asked for the views of the United States Solicitor General (the legally appointed representative of the federal government in Supreme Court cases). The Solicitor General agreed with the Federal Circuit’s ruling and recommended denying further appellate review. The Supreme Court denied the first appeal in 2015.
Upon the remand as ordered by the Federal Circuit, at the second jury trial, Google prevailed on its fair use defense. Oracle then appealed to the Federal Circuit requesting review of the finding on the fair use defense. The Federal Circuit reversed the jury’s verdict as a matter of law and held that re-use of software interfaces is infringement that creates liability for damages, and is not excusable as fair use.
The fair use doctrine is codified in 17 U.S.C. § 107 and is a limited exception to the copyright holder’s exclusive rights. It permits use of copyrighted works for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. The doctrine is applied on a case-by-case basis and the following nonexclusive factors are to be considered: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In balancing the four statutory factors, courts consider whether the copyright law’s goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it.
Oracle argues that each of the four statutory factors weighs against a finding of fair use: (1) the purpose and character of Google’s use was purely for commercial purposes; (2) the nature of Oracle’s work is highly creative; (3) Google copied 11,330 more lines of code than necessary to write in a Java language-based program; and (4) Oracle’s customers stopped licensing Java SE and switched to Android because Google provided free access to it.
The following facts are not in dispute: (1) what the “declaring” software code is and what it does in Java SE and Android, and that the code at issue was a work created by Oracle; (2) how many lines of code were copied; (3) that there were other ways for Google to write API packages; and (4) that Google used the API packages in Android for the same purpose they were created for in Java.
Google’s argument to the Supreme Court is two-fold. First, Google argues that copying code used to interface is fair use. Google relies on case law and the Copyright Office itself where it stated “in many cases, copying of appropriately limited amounts of code from one software-enabled product into a competitive one for purposes of compatibility and interoperability should…be found to be a fair use.” U.S. Copyright Office, Software-Enabled Consumer Products 57 (Dec. 2016). The Copyright Office statement does not have the force of law, however.
Second, Google argues that interface code is not protectable under § 102(b) because interface code is the process or method used to operate the program. 17 U.S.C. § 102(b) provides that: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (Emphasis added). Contrast interface code that connects an application to an external program or device with code that carries out a program. Google’s position is that interface code is not protectable under the Copyright Act, at all.
The Supreme Court could affirm the Federal Circuit’s decision, or it could reverse the ruling on either ground, i.e., copyrightability of the interface software code or fair use. The Court’s eventual ruling will likely have widespread implications for software developers as indicated by the 175 individuals, companies, and organizations that filed amicus briefs in support of Google. Using API components from other applications is a fairly common practice when developing devices, software applications, and programs. If the Supreme Court decides that APIs are copyrightable and that their use by competitors is not excused by the fair defense doctrine, APIs that were thought free to use would be immediately subject to license restrictions. Where developers created code that incorporated APIs, the developers could find themselves owing fees for those APIs or subject to copyright infringement litigation. The Supreme Court’s decision is expected sometime in 2020.