BY MICHEAL ROSEN
Last week, the long-simmering software dispute between Google and Oracle boiled over, as the Supreme Court heard arguments in the tech giants’ copyright fight.
The story began in federal court in San Francisco in 2010, when Oracle sued Google for infringing its copyright in 37 Java application programming interfaces (APIs) — the building blocks for mobile application interoperability.
Oracle, which had earlier purchased Sun Microsystems, the pioneer of Java in the 1990s, sought nearly $9 billion in damages, claiming that Google’s Android operating system copied its software without permission.
For its part, Google argued both that the software was not sufficiently creative to be copyrightable and, if it was, the “fair use” exception should apply. Under that doctrine, which effectively excuses copyright infringement, courts consider whether the use is commercial or transformative, how creative the copyrighted work is, how much of the work the infringer used, and how much harm the infringing use caused.
After the jury deadlocked, the case went to the Federal Circuit Court of Appeals, which held in 2018 that Java APIs were indeed copyrightable and told the trial court to consider whether Google’s use was fair. After a second jury found fair use, the Federal Circuit vigorously disagreed, finding that Google’s use was not transformative but “highly commercial,” even though Android is provided for free.
Specifically, the court held that “Google made no alteration to the expressive content or message of the copyrighted material, and . . . smartphones were not a new context.”
The Federal Circuit also held that Google made substantial use of the copyrighted material (“Google copied 11,500 lines of code — 11,330 more lines than necessary to write in Java”) and that because Android competed against earlier smartphone operating systems using Java SE, its infringing use of Java APIs harmed Oracle commercially, even though Oracle doesn’t develop mobile operating systems.
Shortly thereafter, Google filed a petition for certiorari with the Supreme Court, urging the justices to consider two key questions:
1) Whether copyright protection extends to a software interface;
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.
The Supreme Court granted Google’s cert petition late last year, and the parties briefed their positions earlier this year, along with dozens of software companies, interest groups, intellectual property (IP) practitioners, and academics — some on Google’s side, others on Oracle’s. The US Department of Justice filed its own brief in support of Oracle’s position.
The breadth of the questions under consideration suggest that at least several of the Supreme Court justices are willing to reconsider the notion that software deserves any copyright protection — a decades-long precedent. But it’s more likely they will reaffirm the fundamental principle while potentially trimming its application in this particular case.
During the arguments last week, Justice Stephen Breyer’s questioning appeared to indicate he favored Google’s position on fair use. Other justices, including Chief Justice John Roberts, seemed more torn; in response to Google’s claim that it could not have developed Android without using the APIs, he remarked that “cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it.”
Justice Neil Gorsuch focused on whether the Federal Circuit overstepped its bounds in reversing the jury’s findings. Given the passing of the late Justice Ruth Bader Ginsburg, the high court could deadlock 4–4, in which case the Federal Circuit’s ruling would stand.
Either way, the outcome of the fight before the Supreme Court is likely to set the terms of the software copyright battle for years to come.
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Michael Rosen is an adjunct fellow at the American Enterprise Institute.
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