Copyright in Code: Supreme Court Hears Landmark Software Case in Google v. Oracle

Copyright in Code: Supreme Court Hears Landmark Software Case in Google v. Oracle

Legal Sidebari

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
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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.)

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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, nontransformative
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

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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 Trade-
Related Aspects of Intellectual Property Rights (TRIPS).

Author Information

Kevin J. Hickey

Legislative Attorney

Disclaimer
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