After agreeing to hear the suit in November 2019, the Supreme Court heard oral arguments today for the suit between petitioner Google and respondent Oracle. The suit began when Oracle sued Google for copyright infringement a decade ago; the case is set to address two questions: “[w]hether copyright protection extends to a software interface” and “[w]hether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.”
Specifically, the suit concerns approximately 11,500 lines of Oracle’s Java application programming interface (API) code that Google used without a license to make its Android operating system. While Google previously acknowledged the use of this code, Google stated that it equated to 0.1 percent of the code for Android and that it later developed an alternative to the used code. Google alleged that this constituted fair use and that including the code in something made it new.
In a prior argument, Oracle noted that Apple and Microsoft licensed Java, so Google could have done the same. The Federal Circuit found that Google’s use was not fair and thus it had breached copyright law through its purported use of the code in Android. In its Supreme Court petition, Google claimed that the Federal Circuit’s approach would “upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs.” Meanwhile, Oracle has sought more than $8 billion in damages. Numerous amicus briefs, including from Microsoft and IBM, were filed for this suit.
At oral argument, counsel for Google said “Oracle has a copyright to the computer code… but not a patent; that means that the public, not Oracle, has the right to… [these] functions. Oracle cannot leverage its copyright to create patent-like rights.” Furthermore, Google claimed that “under the Merger Doctrine, there is no copyright protection for computer code that is the only way to perform those functions.” Google contended that Oracle is asserting its copyright as a patent right because “there are no substitutes, Oracle is impermissibly claiming the exclusive right to not merely what the declaration is saying, but what the declarations do.” Chief Justice Roberts and Justice Thomas challenged Google’s argument that Oracle was asserting a patent right. Google continued to bring up Baker v. Selden, stating that once code is published, the public has a right to use it.
Oracle’s counsel argued that Congress provided copyright protection for code, as long as the code is original, a fact that it says Google has conceded. “That’s the end of the question. Google asks this Court to carve out declaring code. Congress rejected the very carve out in multiple ways including its definition of computer program and by not including Google’s carve out among the limitation in Section 117.” Oracle reiterated that the Court has to decide if, for copyright purposes, the declaring code was original, which it is, and for fair use purposes if it is fair to copy the declaring code. Oracle further stated, along with other justices, that “you cannot distinguish declaring code from implementing code.” Consequently, Oracle asserted that Google’s use was not fair use and noted that other companies had licensed this code while Google did not. Oracle alleged that Google did not transform the code because the “declaring code operates on Android the same way it operates on Java.” The Supreme Court has “held [that] the transformative use must alter the original work expression, meaning, or message,” which Google purportedly did not do. Oracle averred that a ruling in Google’s favor “will decimate the incentive to create high quality user facing declaring code”; this code is “essential for the industry to survive.” Oracle also proffered that a ruling in Google’s favor would “destabilize copyright law.”
Several of the justices, such as Chief Justice Roberts suggested they were sympathetic to Oracle’s claims, but seemed hesitant to rule in its favor because of arguments made by industry leaders and Microsoft’s brief that contended that ruling in Oracle’s favor could “doom the tech industry.” Meanwhile, Justice Gorsuch continued to ask questions about if the Federal Circuit gave sufficient deference to the jury’s findings.
This suit was one of the first for the Supreme Court’s October term, which began on Monday and is the first term since the passing of Justice Ruth Bader Ginsburg.
Google is represented by Goldstein & Russel, P.C as the counsel of record, along with Williams & Connolly LLP; Keker, Van Nest & Peters LLP; Kwun Bhansali Lazarus LLP; and King & Spalding LLP. Oracle is represented by Orrick, Herrington & Sutcliffe LLP as the counsel of record along with Kirkland & Ellis LLP.
