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December 17, 2020 | By S&H
Posted in: S&H IP Blog | U.S. Supreme Court

Google LLC v. Oracle America, Inc.

Google LLC v. Oracle America, Inc., Dkt. 18-956 (S. Ct. 2018)
U.S. copyright protection for software interfaces.


In 2008, Google LLC (”Google”) released Android, ”an open-source platform designed to enable mobile devices such as smartphones and tablets. The Android platform was built using the Java programming language developed by Sun Microsystems, which was later acquired by Oracle American, Inc. (”Oracle”). Prior to Oracle”™s acquisition of Sun Microsystems, Google replicated the syntax and structure of the Java application programming interface (”API”) within the Android platform to ensure third-party developers could utilize the prewritten methods and declarations known within Java”™s API libraries. Google replicated ”37 Java API libraries that were determined by Google to be ”˜key to mobile devices,”™” which attributed to only 3% of the Android environment. Google independently wrote the remainder of the code to ”accommodate the unique challenges” of the mobile device environment. Upon its acquisition of Sun Microsystems, Oracle sued Google in the U.S. District Court for the Northern District of California (”District Court”), alleging copyright infringement for the replicated code.

At the end of trial, the District Court held the Java API was not copyrightable and rejected Google”™s fair use defense, which permits the unlicensed use of copyright-protected works in certain circumstances. On appeal, the U.S. Court of Appeals for the Federal Circuit (”Federal Circuit”) reversed and remanded the district court”™s decision. Specifically, the Federal Circuit found the Java API was subject to copyright protection and remanded the case because there was a lack of sufficient factual findings to resolve the fair use issue raised by Google in the District Court. On remand, the jury concluded Google”™s use of the Java API constituted fair use. Oracle timely appealed. Once again on appeal in the Federal Circuit, the court overturned the jury”™s verdict, finding Google did not engage in fair use as a matter of law. Google subsequently petitioned for certiorari, which the Supreme Court granted.

Oral Argument at the U.S. Supreme Court

As noted, the questions before the Supreme Court are whether copyright protection extends to a software interface, and whether Google”™s use of a software interface in the context of creating a new computer program constitutes fair use. In its petition for certiorari, Google asserts that if the Federal Circuit”™s approach is allowed to stand, ”developers will be forced to abandon their traditional building-block approach to software interface development,” and in turn, ”would have a devastating impact on the development of computer software.” Nevertheless, Oracle asserts that a finding in favor of Google would penalize software developers for simply creating a software interface popular enough since that would allow other companies to use it without consequence under the fair use doctrine.

The Supreme Court held oral arguments in the case on October 7, 2020.

Google argued at pages 3, 4, and 5 of the transcript that:

The merger doctrine resolved the copyrightability question in this case. Oracle has a copyright to the computer code in Java SE but not a patent.  That means that the public, not Oracle, has the right to Java SE’s function, and Oracle cannot leverage its copyright to create patent-like rights.  Specifically, under the merger doctrine, there is no copyright protection for computer code that is the only way to perform those functions.

Here, Java software developers have the right to use certain commands to create applications for Google’s Android smartphone platform, but, to work, the commands require Google to reuse an exact set of declarations from Java SE, like a key that fits into a lock.

Because there are no substitutes, Oracle is impermissibly claiming the exclusive right not merely to what the declarations say but also to what the declarations do.  That is not a copyright; it is a patent right.

With respect to fair use, the long-settled practice of reusing software interfaces is critical to modern interoperable computer software.  Here, reusing the minimally creative declarations allowed the developers to write millions of creative applications that are used by more than a billion people.

But those policy questions are almost academic because the issue is not whether this Court would find fair use. The standard of review asks the much narrower question whether the jury could reasonably find fair use.  Oracle now obviously regrets its demand that the jury weigh all the evidence and decide fair use in a general verdict that contains no subsidiary findings.

No previous court ever held that only a court may decide fair use.  It is so fact-bound that no prior appellate court ever  overturned a fair use verdict.  This uniquely  contested case should not be the first.

Today, you will hear three lawyers present legal arguments for an hour.  In 2016, the jury heard the starkly conflicting testimony of almost 30 witnesses and reviewed roughly 200 exhibits over two-and-a-half weeks.  This case perfectly illustrates, as this Court recently reiterated in Georgia versus Public.Resource, that fair use “is notoriously fact-sensitive and often cannot be resolved without a trial.”

Oracle argued at pages 38, 39, and 40 of the transcript that:

Google’s whole argument this morning is code is different.

Now a few basic legal principles and concessions control the outcome of this case.

Legal principle 1:  Congress defined literary work to include software and granted copyright protection as long as the code is original.  Google conceded Oracle’s code is original.  That’s the end of the question.

Google asks this Court to carve out declaring code, but Congress rejected the very carveout in multiple ways, including in its definition of computer program and by not including Google’s carveout among the limitations in Section 117.

Legal principle 2:  This Court held in Harper and in Stewart that a superseding use is always unfair as a matter of law. No court has found fair use or upheld a fair use verdict where a copyist copied so much valuable expression into a competing commercial sequel to mean the same thing and serve the same purpose as the original.  Google conceded the purpose and the meaning are the same.  That’s the end of Question 2.

No one else thought that innovating required copying Sun’s code without a license.

As Justice Alito notes, Apple and Microsoft did not copy to create their competing platforms.

Neither did others who wrote competing platforms in the Java language.

There was and still is a huge market for declaring code.  Other major companies like IBM and SAP were paying a lot of money to license just the Sun declaring code precisely because it was created.  And throughout this litigation, Google never denied this.

If this Court holds that a jury may conclude that copying declaring code is fair, it will encourage copying, create legal uncertainty, and decimate the business model which a lot of companies depend on, undermining  the very incentives copyright was designed to promote.

We await a decision.


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