Case No. 18-956 | Fed. Cir.
October 7, 2020
Preview by Austin Martin, Senior Online Editor
Ten years of litigation between two Silicon Valley giants reaches the Supreme Court in what is to be the Court’s first real opportunity to decide whether software interfaces are eligible for copyright protection. If software interfaces are copyrightable, the Court must also decide whether Google’s copying of Oracle’s software interface was a “fair use,” which would defeat Oracle’s claim of infringement.
The first question involves a debate over copyright law’s “idea-expression dichotomy.” See, e.g., Baker v. Selden, 101 U.S. 99 (1880); Lotus Dev. Corp v. Borland Int’l, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided Court, 516 U.S. 233 (1996)). To build a developer-friendly, open-source platform for its Android operating system, Google copied over 11,000 lines of code and 37 application programming interfaces (“APIs”) from Java SE, a coding package that Oracle owns and licenses to companies building digital platforms. Copyright protection extends to expression, but Google argues that the code and APIs embody an uncopyrightable “idea, . . . system, [or] method of operation.” 17 U.S.C. § 102(a)-(b) (2018). Under the “merger doctrine,” Google contends that since the code creates a “computer software interface designed to invoke the functions of a program,” the code’s expression is inseparable from its underlying idea or function. Brief for Petitioner at 18, 21, Google LLC v. Oracle Am., Inc., 18-956 (U.S. filed Jan. 6, 2020). The expression thus “merges” with the idea and is uncopyrightable. Google further argues that the copied code can only be written in one way to perform the desired functions and that granting Oracle copyright over the software interface would give it an unwarranted monopoly over the computer functions themselves.
Oracle contends that it “does not seek to protect the ideas embodied in Java SE . . . [but] claims rights only in its particular expression of those ideas.” Brief for Respondent at 24, Google LLC v. Oracle Am., Inc., 18-956 (U.S. filed Feb. 12, 2020). Oracle argues that Congress understood computer programs to be inherently functional but still afforded copyright protection to code “whether ‘used directly or indirectly’ to operate a computer.” Brief for Respondent at 27 (quoting 17 U.S.C. § 101). Oracle asserts anyone could have written different Java code to perform the same functions as the copied lines, meaning the copied expressions do not “merge” their functions to become uncopyrightable.
If the Court finds that computer programs are copyrightable, Google will urge the Court to uphold the jury’s finding that Google’s use constitutes “fair use.” The Federal Circuit reversed the jury’s finding after weighing the evidence itself, which Google argues was an erroneous approach. See Oracle Am., Inc. v. Google LLC, 866 F.3d 1179 (2018). In Google’s view, the jury had substantial evidence on which to find that fair use was satisfied. Google touts the “longstanding practice of software companies and developers of reimplementing declarations and other software interfaces that operate pre-written computer code” as justification for its actions. Brief for Petitioner at 37.
Oracle posits that the question of fair use is a legal question properly decided on de novo review by a court. Additionally, Oracle argues that Google cannot establish fair use simply by using copied code in new devices and that Google’s substantial copying and subsequent harm to Java SE’s market performance should invalidate its fair use argument. Brief for Respondent at 39–46. Finally, Oracle warns that if companies cannot protect their software interfaces through copyright, “[n]o company will make the enormous investment required to launch a groundbreaking work like Java SE.” Brief for Respondent at 57.
This case has serious implications for software developers and copyright law. Oracle has invested millions to acquire and maintain control over Java, and Google’s activity stands to threaten Oracle’s business. On the other hand, Oracle’s potential ability to assert copyright protection over APIs could severely hamper software interoperability and create litigation risk for companies using common APIs in their own programs. This case has drawn a number of amici in support of both sides, and the outcome is sure to be thoroughly debated.