Copyright in Code:

Supreme Court Hears Landmark Software Case in Google v. Oracle October 21,
2020 In what observers have hailed as the “copyright case of the century,” an
eight-member Supreme Court heard arguments on October 7, 2020, in Google LLC
v. Oracle America Inc., a long-running intellectual property dispute between the
two tech giants. Along with the billions of dollars at stake between the parties,
the Court’s decision in Google v. Oracle could have far-reaching implications for
software companies, the broader technology industry, and other copyright-
intensive industries. Reflecting these stakes, the Supreme Court received over 70
amicus briefs from industry, advocacy groups, academics, and other stakeholders,
ranging from computer scientists and small software startup firms to IBM,
Microsoft, and the Motion Picture Association. This Sidebar reviews the legal
doctrines at issue in Google, the facts of the dispute, the parties’ arguments, and
the potential implications of the Court’s decision for Congress. Software Copyright
Basics Copyright law grants certain exclusive legal rights to authors of original
creative works, such as books, music, fine art, and architecture. At least since
1980, U.S. copyright law has protected computer programs as a type of literary
work. Applying legal principles originally crafted for books to computer code has
not always been a straightforward task, in part because computer programs are
more functional than other copyrightable subject matter. Courts have long
wrestled with the appropriate scope of copyright protection in computer code.
When the Supreme Court last tried to weigh in on software copyright in the
1990s, it divided 4-4 and therefore issued no precedential decision. Given that the
Court heard arguments in Google with eight Justices presiding, there is at least a
possibility of a 4-4 split in this case as well, although the probability of such an
outcome remains unclear. Three key copyright doctrines affect the scope of
copyright protection for computer code. The first is the idea/expression
dichotomy, codified in Section 102(b) of the Copyright Act, which states that
copyright protection does not “extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery.” This doctrine derives from
the Supreme Court’s 1880 decision in Baker v. Selden, which held that the
copyright in a book describing a system of accounting extended only to the
author’s particular description of that system (the book’s “expression”) and not to
the accounting system itself (the book’s “idea”). The second doctrine, known as
merger, is a corollary of the idea-expression distinction. When there are only a
few ways to express an idea, the expression is said to “merge” with the
Congressional Research Service https://crsreports.congress.gov LSB10543
Congressional Research Service 2 idea, and neither is copyrightable. One central
purpose of both doctrines is to prevent the use of copyright to monopolize
general ideas or functional systems. The third doctrine is fair use, which permits
limited uses of copyrighted works that would otherwise be infringements, such as
using portions of a copyrighted work in a parody or book review. To determine
whether a use is fair, courts consider a number of factors, including (1) the
purpose and character of the use, (2) the nature of the original work, (3) the
amount and substantiality of what was copied, and (4) the commercial harm from
the use on the potential market for the original work. As part of the first factor,
courts also consider whether the alleged fair use is “transformative,” that is,
whether it adds new expression, has a different purpose, or alters the original
work with new expression or meaning. Applications of fair use are wide-ranging;
under “the common law tradition of fair use adjudication,” courts rely on fair use
to avoid “rigid application” of copyright liability when it would “stifle the very
creativity which [copyright] is designed to foster.” The Dispute in Google v. Oracle
The dispute in Google v. Oracle concerns the Android operating system for
smartphones. In developing Android, Google copied certain elements of Oracle’s
Java programming language and platform. In particular, Java contains thousands
of methods, sometimes referred to collectively as the application programming
interface (API). Methods are modules that application developers can invoke (or
“call”) to perform certain functions, rather than writing basic code from scratch.
Java groups related methods into classes, and related classes into packages. For
example, Java’s “Math” class includes, among other related methods, the “max”
method, a pre-built function that Java programmers can use to output the greater
of two input values. Thus, a programmer can call java.lang.Math.max(x, y) to
determine whether x or y is a larger number (and output that number), rather
than independently writing code to perform the function. In building Android,
Google copied the “declaring code” of 37 of the Java API’s 166 packages. The
declaring code includes the name for the function (in this example, “max”) and its
syntax, as well as its place within Java’s taxonomy of methods (in this example,
within the “math” class). Google independently wrote Android’s “implementing
code,” the operative code that performs the method. In all, Google copied over
11,000 lines of code (of about 15 million in Android) so that developers writing
applications for Android could rely on the Java calls with which they were already
familiar. Oracle sued Google in 2010, claiming both patent and copyright
infringement, and seeking billions in damages. The copyright claims were tried to
a jury, which found that Google infringed but deadlocked on Google’s fair use
defense. The district court judge, however, set aside the infringement verdict,
holding that the declaring code at issue—including the Java API’s structure,
sequence, and organization (SSO)— was not copyrightable under Section 102(b)
and the merger doctrine. The Federal Circuit reversed, holding that the declaring
code and the API’s SSO were copyrightable, and that neither Section 102(b) nor
merger applied. On remand, a second jury found that Google’s use of the
declaring code was fair. Oracle again appealed, and the Federal Circuit reversed,
holding that Google’s use of Java’s declaring code and the API SSO was not fair as
a matter of law. The Supreme Court granted certiorari to address (1) “[w]hether
copyright protection extends to a software interface” and (2) “[w]hether, as the
jury found, [Google’s] use of a software interface in the context of creating a new
computer program constitutes fair use.” On its own accord, the Supreme Court
ordered supplemental briefing to address a third issue, the “appropriate standard
of review” for a jury verdict on fair use, “including but not limited to the
implications of the Seventh Amendment, if any, on that standard.” (The Seventh
Amendment guarantees the right to a trial by jury in certain civil cases, including
copyright cases seeking monetary damages.) Congressional Research Service 3
The Parties’ Arguments Google first argues that the merger doctrine controls the
case, and precludes copyright protection when there are only a few ways to
perform a particular function. Google characterizes the declaring code as “an
interface connecting the operating system to commands in applications written
by software developers.” It casts its use as part of a long-settled practice of
software “reimplementation,” where a new market entrant generally writes new
code but reuses a “limited number of instructions” to recreate an interface
already known to users. On this view, because a developer must write the
declaring code in a certain way to respond to the specific calls already known to
Java developers, the code is not copyrightable under the merger doctrine.
Alternatively, Google argues that there is no basis to overturn the jury’s verdict on
fair use. On the contrary, Google urges that a reasonable jury could have found
that Android represents a transformative use of the declaring code, the copying
represented a small fraction of the Java API code, or that the resulting market
harm was limited because Java does not compete with Android in the
smartphone market. In response, Oracle emphasizes that many original creative
choices went into the 11,330 lines of code that Google copied, including how
Java’s creators named, structured, and organized the thousands of methods of
the Java API. Oracle argues that Google’s Section 102(b) and merger arguments
are thus meritless: because the declaring code could have been written in many
ways, it is copyrightable, and Section 102(b) does not withdraw copyright
protection just because the methods, like most computer code, are functional. As
to merger, Oracle notes that Google could have written new methods from
scratch to perform the same functions, but chose to copy in order to “leverage”
Java’s popularity with developers without obtaining a license on Oracle’s terms.
As to fair use, Oracle argues that the ultimate conclusion of fair use is a legal issue
that courts may review de novo, and that Google’s competing, non-
transformative commercial use is the antithesis of a fair one. In its supplemental
briefing, Google urges that the appropriate standard of judicial review of a fair
use verdict is highly deferential: after construing all factual disputes in favor of the
verdict, the court may overturn a general jury verdict only if no reasonable jury
could have found the use was fair. Because fair use is a mixed question of law and
fact, Google argues that it was appropriate to commit it to a jury, noting that both
parties agreed to do so. For its part, Oracle asserts that the appropriate standard
of review is de novo. Relying on Harper & Row v. Nation Enterprises, Oracle
argues that although the court must defer to the jury’s fact-finding, the ultimate
question of whether Google’s copying is fair is a legal judgment that courts
determine de novo. That said, Oracle maintains that the standard of review
“makes no difference” in this case because no reasonable jury could find that
Google’s use was fair. Implications for Congress Depending on how broadly it
rules and the issues it chooses to address, the Court’s ruling in Google v. Oracle
could have sweeping ramifications for the technology industry. For example, a
ruling on the merger doctrine may restrict or broaden competitors’ ability to copy
functional elements of computer software or interfaces, potentially imperiling
existing business models or opening up new avenues for reuses of existing
software. A ruling on just the fair use issue, however, may be narrower in its
effects beyond the litigants, because fair use typically requires a “case-by-case”
analysis. That said, how the Court approaches the fair use analysis and the factors
it chooses to emphasize will likely influence the development of the doctrine and
the analyses by lower courts in future cases, potentially affecting the scope of
permissible uses of copyrighted works in contexts far removed from computer
programs. In some ways, Google can be viewed as part of a long history of courts
and Congress seeking to adapt copyright law to new media and changing
technological contexts. For example, in the early 20th century, the Supreme Court
grappled with whether copyright protection for musical works reached player
piano rolls, with Congress subsequently overruling the Court’s holding that such
rolls were not “copies” of the Congressional Research Service 4 LSB10543 ·
VERSION 1 · NEW musical work via statute. Copyright protection for architectural
works was not generally available until 1990. Just a few years ago, Congress
extended federal copyright to early sound recordings via the Music Modernization
Act. Copyright law is a statutory creation; Congress thus has the power to change
the scope of software copyright should it disagree with the decision in Google v.
Oracle. For example, Congress could amend Section 102(b) to clarify how the
idea/expression dichotomy applies to computer programs, resolving the tension
between the general copyrightability of computer programs with Section 102(b)’s
prohibition of copyright in “method[s] of operation.” Congress could specify, for
example, whether and when declaring code, software interfaces, graphical user
interfaces, and nonliteral aspects of computer programs are copyrightable.
Although Congress has broad authority over the scope of copyright, such
legislation must comport with constitutional limitations—such as the Takings
Clause of the Fifth Amendment—and the United States’ international-treaty
commitments, such as those contained in the Agreement on TradeRelated
Aspects of Intellectual Property Rights (TRIPS). Author Information Kevin J. Hickey
Legislative Attorney Disclaimer This document was prepared by the Congressional
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