The justices finished up the first week of the new term by finally hearing argument in Google v. Oracle, a case that has been pending at the Supreme Court since the fall of 2018. The high-stakes dispute presents a challenge by Oracle (the current owner of a copyright in the Java platform created by Sun Microsystems) against the Android operating system, which Google designed when it entered the smartphone market.
Google wanted Android to be accessible to developers familiar with Java. Accordingly, although Google purchased or rewrote from scratch all the code that provides the functionality of Android, it reused the “declaring” code from Java (about 11,000 lines) that programmers use to call up particular commands. (You might imagine that it reused phrases like “Open Sesame,” but created anew the mechanisms to cause doors to open and shut.) A jury held that Google’s actions were “fair use,” but the U.S. Court of Appeals for the Federal Circuit held that Google violated Oracle’s copyright and that its actions as a matter of law could not be regarded as fair use. As the case comes to the Supreme Court, Google can win in either of two ways: by convincing the justices that the code it copied was not protected by copyright at all, or by persuading the justices to uphold the jury’s verdict that Google’s copying was “fair.”
Wednesday’s oral argument provides a good example of a challenge with the formalistic structure the court has adopted for its telephonic arguments. Because each of the justices talks in sequence, by order of seniority, there is little or no opportunity for discussion among the justices. In a relatively complex case like this one, then, we can see some justices focusing entirely on one issue, while others focus entirely on another, leaving us no easy way to discern a likely direction the court might take on the case as a whole.
Thomas Goldstein argued on behalf of Google. During his presentation, a sequence of justices questioned Google’s argument that copyright does not protect the declaring code. In simple terms, Google argues that the declaring code is so “functional” that it is not protected by copyright, which protects only the “expression” of the author, not the author’s “ideas.” As part of that point, Google relies on a “merger” doctrine, under which copyright provides no protection when only one form of words will accomplish the desired outcome. Here, Goldstein argued, Google could not have accomplished its desired goal (making Android accessible to Java developers) without using the “declaring code” with which developers are familiar, though it could have provided access to the underlying operational functionality with a new set of declarations.
That argument faced some objections, starting with Goldstein’s first interlocutor, Chief Justice John Roberts. When Goldstein pressed his point that Google could not have provided the Java functionality without copying Java’s declarations, Roberts responded that “the only reason that there’s only one way to do it is because Sun and Oracle’s product expression was very successful. There were a lot of ways to do it when [Sun originally wrote] it. And the fact that … programmers really liked it … it seems a bit much to penalize them for that.” Roberts went on to comment 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. I mean, if it’s the only way, the way for you to get it is to get a license.”
As Goldstein’s presentation progressed, several other justices seemed to share the skepticism Roberts evinced on that point. Justice Clarence Thomas, for example, asked, “At what point should we determine … whether or not there is merger? When Oracle or Sun develops this program? Or when you decide to use it?” Offering much the same take on that problem, Justice Elena Kagan offered a hypothetical in which a large group of people crafted proofs of a mathematics theorem, resulting in some that “are better than others – some are elegant and some are less elegant.” “I would think,” Kagan continued, “that that’s pretty analogous to the situation here, that there [was] more than one way and [Sun] happened to come up with a particularly elegant one.”
Building on that hypothetical, Justice Neil Gorsuch remarked that he found himself “stuck in a similar place as Justice Kagan, which is [that] I wish to share the facilities of a more successful rival because they’ve come up with a particularly elegant or efficient or successful or highly adopted solution in the marketplace.” Echoing an earlier comment by Justice Sonia Sotomayor, Gorsuch went on to ask Goldstein how to deal with the fact that other tech companies, like Apple and Microsoft, “have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying.” Goldstein responded that Apple and Microsoft use entirely different languages. “It’s like saying we can’t have merger in English because someone could write something in French,” Goldstein said.
Joshua Rosenkranz took the metaphorical podium on behalf of Oracle, followed by Malcolm Stewart on behalf of the solicitor general in support of Oracle. Two significant lines of questions about Oracle’s position emerged in this half of the argument. The most prominent started with Justice Stephen Breyer’s comparison of Oracle’s declaring code to the QWERTY typewriter keyboard. As Breyer explained:
You didn’t have to have a QWERTY keyboard on typewriters at the beginning, but … if you let somebody have a copyright on that now, they would control all typewriters, which really has nothing to do with copyright. Or it’s like switchboards on old-fashioned telephone systems. You could have done it in 1,000 ways. But, once you did it, all those operators across the world learned that system, and you don’t want to give a copyright holder a monopoly of telephone systems.
Kagan’s line of thought followed directly on Breyer’s, as she offered a hypothetical of a grocery store that developed “a really terrific way of organizing all my fresh produce, all my fruits and vegetables, into these categories and sub-categories, very intuitive for the shopper. And this is not the standard way. … It’s novel. And it’s great. And a rival grocery store – all rival grocery stores – want to copy it.” For Kagan, “there are all kinds of methods of organization in the world. You know, whether it’s the QWERTY keyboard or whether it’s the periodic table or whether it’s the system of kingdoms and classes and phyla and so forth that animals are organized into. I mean, there are a thousand ways of organizing things.” She asked Rosenkranz if he was suggesting that the first person to develop any such organizational scheme “could have a copyright and then prevent anybody else from using them.”
Kagan offered a parallel hypothetical to Stewart, involving “a new and very useful keyboard – not QWERTY, but something better than QWERTY.” If a cell phone manufacturer copied the new keyboard layout and used it for its next phone, Kagan asked, would that be fair use? When Stewart agreed that it well might be fair use, Kagan responded: “So why is it any different here? … Google took Java’s interface so the programmers wouldn’t have to learn a whole new system for coding, just as the cell phone manufacturer took my keyboard so that people could rely on something familiar.”
Sotomayor offered a similar distinction between the “implementing codes,” which the industry long has regarded as copyrightable, and the “declaring code” or “application programming interfaces,” which traditionally have not been regarded as copyrightable. Sotomayor closed her comment by challenging Rosenkranz to “please explain to me why we should now upend what the industry has viewed as the copyrightable elements … Why should we change that understanding?” Later, discussing the problem with Stewart, Sotomayor noted that Google’s work “moved Java’s platform from a PC, essentially, to mobile phones.” “Why wasn’t that a transformative step?” she asked. “Why wasn’t that a giant step of fair use?” Stewart responded that Google’s use of the code in Android is not transformative because “the code is performing exactly the same function that it performed on Java.”
A parallel theme in the second half of the argument was the sentiment that the Federal Circuit was too quick to discard the jury verdict of fair use. Justice Samuel Alito was perhaps most focused on the point, as he raised it with both Goldstein and Rosenkranz. At one point, he asked Rosenkranz why the Federal Circuit didn’t “ask whether the evidence presented at trial, viewed in the light most favorable to Google, would have been sufficient as a matter of law to support the jury’s fair use verdict.” Thomas and Gorsuch voiced similar concerns, with Thomas pointedly asking Stewart whether “the Federal Circuit applied the proper review standard” and Gorsuch explaining to Rosenkranz that, typically, “fact-specific questions like fair use … are reviewed for substantial evidence in the record, and that is not what the Federal Circuit here did.” Sticking with the point, Gorsuch asked Rosenkranz again, “Why should the Federal Circuit not have used that traditional standard of review?” and finally, “Why shouldn’t we remand the case for consideration under a more deferential standard of review normally applied to jury findings and general verdicts?” Rosenkranz responded that courts are well equipped to weigh the fair-use factors for themselves. It can’t be the case, he said, that fair use always must be decided by a jury.
We will have to wait for the final decision to see how the justices settle that melting pot of perspectives into a resolution of the case.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is among counsel for Google in this case. The author of this article is not affiliated with the firm.]
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