(Reuters) - In a brief filed Friday at the U.S. Supreme Court, the Justice Department urged the justices to deny Google's petition for review of a pair of rulings that put the company on the hook for billions of dollars for infringing Oracle's copyrights on Java computer code.
Google’s lawyers at Goldstein & Russell have argued that the case presents important questions about the copyrightability of certain kinds of computer code and fair use of that code. The Justice Department, however, said in Friday’s brief that the copyrightability question has already been resolved definitively - and that the Google case isn’t a good vehicle for the Supreme Court’s consideration of fair use.
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The Solicitor General’s brief pointed out that the Supreme Court already refused a request by Google back in 2015 to review the copyrightability of Oracle’s code. DOJ, which argued against taking the case back then, and said in Friday’s filing that no subsequent developments in the law have changed the government’s mind.
The 2015 petition was only about copyrightability, since the Federal U.S. Circuit Court of Appeals had not yet ruled on whether Google made fair use of the copyrighted code. Google’s new petition asked the Supreme Court grant review of the Federal Circuit’s fair use analysis.
But the new DOJ brief argued that the appellate court’s rejection of Google’s fair use defense was so fact-specific that the case cannot serve as a vehicle for the Supreme Court to establish broad principles about when it’s okay to reimplement so-called directing computer code.
Google counsel Thomas Goldstein of Goldstein & Russell declined to provide a statement responding to DOJ’s brief. Oracle lawyers Joshua Rosenkranz and Annette Hurst of Orrick Herrington & Sutcliffe did not respond to my email request for comment.
Google, as I’ve reported, pitched its case to the Supreme Court as an opportunity for the justices to knock down barriers to technological innovation – a theme echoed by dozens of Google amici, including computer scientists, software developers, copyright and intellectual property scholars, public interest groups and even industry competitors such as Microsoft. (The truly impressive amicus array is available at the Supreme Court docket for the case.) Their argument is that when Google incorporated nearly 11,500 lines of Java code into its Android system, allowing programmers to shortcut interfaces with libraries of prewritten Java code for oft-used functions, Google was relying on a longstanding practice that has promoted interoperability across programming platforms.
According to Google and its amici, by holding that Oracle’s declaring code, which names and describes these functions, is copyrightable and that Google’s copying was not fair use, the Federal Circuit made it harder for computer programmers to build on established foundations.
The Justice Department countered that those arguments are a red herring. According to DOJ, the Federal Circuit “simply endorsed the unremarkable proposition” that you can’t directly lift copyrighted material to create a competing commercial product. By design, DOJ said, Google’s Android system was not interoperable with Java, despite its incorporation of certain Java interfaces. And if it were truly the case that Google could not have created the Android platform without copying Java code, DOJ argued, then Microsoft and Apple would have been similarly constrained. Yet those companies “developed mobile operating systems from scratch, using their own array of software packages,” the Justice Department said.
DOJ also offered the Supreme Court another reason to reject Google’s petition: This whole case, which has been under way since 2010, has been technologically perplexing, forcing courts to grapple with devilishly difficult questions like the difference between declaring code and implementing code and the significance of various features of the Java Standard Library. (I can personally attest to the challenge of trying to understand exactly what declaring code is, despite have read a half dozen rulings and briefs suggesting a range of analogies.) But according to DOJ, these questions are also inapplicable in typical copyright disputes involving computer code – thus offering the Supreme Court a rationale for skipping a case that would force the justices and their clerks to, in effect, learn a new language.
I told you when Google filed its Supreme Court petition that its lawyers highlighted a copyrightability argument that Google hadn’t pushed hard in its 2015 bid for the justices’ attention. The so-called merger doctrine holds that when there is only one way to express an idea or method, a copyright holder cannot claim exclusive ownership of that means of expression. The doctrine is based on an ancient Supreme Court case, 1880’s Baker v. Selden, in which the justices held that an accountant who had written a book describing a new accounting system did not hold exclusive rights on the forms needed to practice his innovative approach. Google’s Supreme Court petition asserted that Oracle’s declaring code for interfacing with Java was like those accounting forms. Without the code, Google said, programmers could not have relied on Java language to create new programs. The Federal Circuit, it argued, failed to take into account the limits on Google’s expressive choices.
The new Justice Department brief, noting that Google’s previous petition did not raise a merger doctrine argument, said the doctrine doesn’t apply. The accounting method at issue in the Baker case was not copyrightable, DOJ said. The book’s author could not assert copyright over forms needed to execute a process that was not copyrighted. But the Federal Circuit found that the structure, sequence, and organization of the Java Standard Library was copyrightable, as an original work of authorship rather than an uncopyrightable idea. Using copyrighted declaring code to access a copyrighted library of implementing code, DOJ said, does not exempt Google from copyright liability under the merger doctrine.
The Supreme Court can, of course, take Google’s case despite the Justice Department’s recommendation that it should not. Google has until Oct. 16 to file a supplemental brief responding to DOJ. I’d expect arguments that the Justice Department was too quick to disregard widespread industry consternation about the Federal Circuit’s decisions.
But the DOJ brief is definitely not a welcome development for Google and its supporters.
(NOTE: This version is updated from the previous one.)
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