Supreme Court Weighs Future of Software in Copyright Case

The Supreme Court just heard a multi-billion-dollar case regarding Google and Oracle’s long-running battle over smartphone software that some have called “the copyright case of the decade.” Google v. Oracle America, Case No. 18-956, is scrutinizing Google’s reliance on 11,000 lines of Java code in its Android operating system. Oracle acquired Java in 2010 when it bought Sun Microsystems and accuses Google’s use without permission as tantamount to copyright infringement. Google argues it is “fair use.”

The New York Times reports that, in 2016, a San Francisco court agreed with Google’s assessment of fair use but, in 2018, the U.S. Court of Appeals for the Federal Circuit disagreed. Google’s lawyer Thomas Goldstein “stressed that the case concerned copyright law, which protects expression, rather than patent law, which protects inventions.” The lines of code, he argued, “are merely software interfaces, allowing developers to build compatible computer programs … [and] cannot be copyrighted.”

Throughout the proceedings, the justices used a variety of non-technical analogies, such as when Chief Justice John Roberts asked the Oracle attorney Joshua Rosenkranz, if a restaurant could “copyright the structure of a menu that separated appetizers, entrees and desserts.” His response was that, “the Java code was entirely different,” with each item on the menu having “its own description that no one else was using.”

When Justice Sonia Sotomayor asked if, by moving Java to a mobile platform, Google “might have transformed the code, a factor in the fair use analysis,” Oracle lawyer Malcolm Stewart stated that, “using copyrighted material for a new purpose was not by itself transformative,” pointing to the example of someone pirating a motion picture print to livestream over the Internet.

“It’s the same content simply being used on a different platform,” he said. “No one would think of that as transformative.” NYT reports that Google’s lawyer “faced more hostile questions than did his adversaries in the case.”

CNN reports that the case “may come down to the jumbled attempts on Wednesday by eight Supreme Court justices to find an appropriate analogy to describe common computer code,” which ranged from QWERTY keyboards to grocery stores. The result of their “rapid-fire string of analogies” didn’t point to any outcome although it “could determine the future of software development in the United States — and, by extension, the future of a world that’s increasingly dominated by digital services and technology.”

Google’s point of view is that the code “involves little creative expression” and is actually a helper program, “known as software interfaces, application programming interfaces or APIs.” Oracle claims that, nonetheless, it is an “expressive work that is eligible for copyright protections.” Only Justice Stephen Breyer seemed to “express a strong preference for Google’s position,” with Sotomayor and Justice Elena Kagan also appearing to be “more sympathetic to Google.”

Roberts “suggested that for Oracle’s code to become so important that others would seek to copy it implies that the company should be rewarded, not hurt through copyright infringement.” Justices Neil Gorsuch and Samuel Alito focused on “whether it was appropriate for the Federal Circuit to overrule a prior jury decision in favor of Google — a procedural argument that could nevertheless play a significant role in the outcome.”

Related:
Google’s Supreme Court Faceoff with Oracle Was a Disaster for Google, Ars Technica, 10/8/20
Oracle and Google’s Supreme Court Showdown Was a Battle of Metaphors, The Verge, 10/9/20