Supreme Court Hears Oral Arguments
Key Takeaways
- S. Court will seek to balance letter and spirt of the law against the possible bias of a trial court favoring Google in Oracle copyright infringement case
- Maybe Google’s argument should be Java Code is not unlike the Google snippets found to be a fair use in Authors Guild v. Google
Oral Arguments Before Supreme Court in Google v. Oracle Case
On October 7, 2020, the Supreme Court heard oral arguments in Google LLC, Petitioner v. Oracle America, Inc. Supreme Court Docket No. 18-956. Google filed the petition on October 19, 2018 following denial by the U.S. Court of Appeals for the Federal Circuit of a petition for an en banc rehearing of their March 27, 2018 panel decision. In the panel decision, the Federal Circuit reversed the jury decision that Google’s use of the Java code was a fair use and remanded the case to the trial court for a trial on damages.
Previously, the Federal Circuit reversed the decision of the trial code that java code is not subject matter eligible for copyright protection. For a primer on what the Google v. Oracle case is all about, see prior blog: Ten Things to Know
Potential Judicial Bias Toward Google
In one perspective, Google v. Oracle pits a trial court with an apparent bias toward Google and the software industry against a Federal Circuit that is trying to hold the trial court discretion to the letter and spirt of the copyright laws. The bias of the trial court is seen throughout this litigation, where many rulings of Judge Alsup favored Google including (1) declaring, after the first jury trial, that Oracle’s code is not copyrightable as a matter of law, (2) issuing jury instructions in the second trial that sharply restricted the cerebrations of the jury on the issue of “fair use”, and (3) refusing to set aside the second jury finding of “fair use” as a matter of law. All of these rulings were set aside by the Federal Circuit in its 2014 and 2018 decisions. See Ten Things to Know
Two Key Questions About Copyright Protection for Software Interface
Before the Supreme Court in Oracle v. Google are two questions. First, whether copyright protection extends to a software interface. Second, whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
On the first question, Google’s argument that Java code is not subject matter eligible for copyright includes that the Java code is functional and transformative. The Java code is functional Google argues because for among other reasons, the core of the code is functional and not artistic. The Java code is transformative because for among other reasons the functions that the Java code invokes in the accused Android products is different than in the desktop computers and enterprise servers for which the Java code was designed.
Somewhat telling on the second question is the order the Supreme Court issued on May 4, 2020 that the parties file supplemental letter briefs addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard. To provide needed context on why this question is important, we begin with the notion that fair use is an equitable defense to copyright infringement, the Supreme Court calling it an “equitable rule of reason” Harper & Row, 471 U.S. 539, 560 (1985). As such, fair use is a mixed question of law and fact. Id. In Oracle v. Google, the trial court treated the entire question as factual and thus a question to be sent to the jury, which the jury decided in favor of Google. On appeal, the Court of Appeals for the Federal Circuit said the trial judge got this wrong. The jury can decide the historical facts relevant to this lawsuit but the ultimate fair use determination is a question of law for the court to decide. On de novo review, the Federal Circuit decided that question in favor of Oracle.
That the Supreme Court requested additional briefing on the second question suggests that we may not see any new law in this case coming from the first question. After all, if Java Code is not eligible for copyright protection then the Supreme Court could end the lawsuit very quickly in favor of Google since if Java Code is not eligible for copyright protection then can be no infringement. Rather, we may see new law coming from the Supreme Court clarifying whether and to what extent the jury is to play a role in the fair use analysis. Whereas the Federal Circuit limited the jury involvement to determining historical facts relevant to this lawsuit, the Supreme Court may extend the role of the jury to determining the balance of the four factors used in the fair use analysis, namely: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The software industry has largely rallied around Google making arguments like “fair use is a ‘flexible’ and adaptable doctrine that should be applied more liberally to software on account of its hybrid creative and utilitarian function.” Greater protection should be afforded creative aspects of software while less protection should be afforded software as to functional and utilitarian aspects. So goes that argument. See, for example, amicus brief submitted by Microsoft.
Public Benefits Play a Role
In the November 14, 2014 decision in Authors Guild v. Google (U.S. Dist Ct. S. Dist NY), Google dodged a copyright infringement bullet fired by the Authors Guild. There, like here, Google was charged with copyright infringement for digitally copying more than 20 million books of several major research libraries, creating an electronic database of books, and making text available for online search through the use of “snippets” in Google Books. For background on Authors Guild, see One Small Step
In Authors Guild, the court found the use of published content in Google Books to be transformative. Overall, the balance of the four statutory factors when weighed together tipped in favor of a finding of fair use. The court found that Google Books provides: significant benefits; a valuable search tool to help users to efficiently identify and locate books; and a way to preserve books, facilitate access, generate new audiences and create new sources of income for authors and publisher. See One Small Step
The public benefits played a big role in the Authors Guild decision. It is also likely to play a big role in the Oracle v. Google case now before the Supreme Court. After all, android phones are wildly popular and Java code plays a big role in that success. By one account, Oracle has prayed for damages exceeding $8 billion dollars.
Public benefits notwithstanding, here the Java code may not seem so much like the Google snippets in Authors Guild that create efficient e-index cards for users to efficiently locate references. But maybe Java Code should be argued to be like Google snippets. After all, Java code arguably provides e-index cards for programmers to efficiently invoke downstream functions and in that sense may be analogous to the Google snippets in Authors Guild.
Cutting the Baby in Half
Absent a finding by the Supreme Court that the Java code is functional and/or a finding that the jury is to play a role in the fair use analysis, the Court will be hard pressed to reverse the decision of the Federal Circuit based on the publicly available information about this case. But then again, we have seen the Supreme Court cut the baby in half on many high-profile intellectual property cases. One need look back no farther than the Supreme Court’s decision in Apple v. Samsung where the Supreme Court reversed and remanded because the Federal Circuit erred in its interpretation of design patent damages. For more on Apple v. Samsung, see prior blog
One way the Supreme Court could do that here is by reversing the Federal Circuit decision on fair use in favor of Oracle because the Federal Circuit erred in its interpretation to not consider the the jury’s balance of the four factors used in the fair use analysis. If this case follows in the footsteps of Apple v. Samsung the Federal Circuit may then reinstate the case and remand to the district court as “better positioned to parse the record to evaluate the parties’ competing arguments”.
As we have said before, there is a point in a lawsuit when the focus should change from fighting the fight to containing the damages as we posited in our blog Ten Things to Know. Given the large amount of damages Oracle is demanding, it is understandable why Google continues the fight. But absent a knock-out punch by Google at the Supreme Court, Google should start thinking more seriously about focusing resources on containing the damages part of their case as a better return on their litigation investment.