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Solicitor General Opposes Granting Cert in Google v. Oracle

May 25, 2015. The Department of Justice's (DOJ) Office of the Solicitor General (OSG) filed an amicus curiae brief with the Supreme Court in Google v. Oracle urging it to deny Google's petition for writ of certiorari. At issue is whether 17 U.S.C. § 102 "precludes copyright protection for original software code that defines and organizes a set of functions that are useful in writing computer programs". The District Court held that it does. The Court of Appeals held that it does not, and reversed the District Court.

Outline of this Article:
   1. Introduction.
   2. Statute.
   3 Nature of the Dispute.
   4. Proceedings Below.
   5. Google's Petition.
   6. Amicus Briefs.
   7. OSG Brief.

1. Introduction. The Supreme Court requested a brief from the OSG regarding whether or not it should hear the case. See, January 12, 2015 Orders List at pages 1-2. The Supreme Court rarely grants certiorari in cases after requesting an OSG brief, and then receiving a recommendation to deny certiorari.

If the Supreme Court denies Google's petition for writ of certiorari, this would let stand the May 19, 2014 opinion of the U.S. Court of Appeals (FedCir).

The Court of Appeals held in favor of Oracle on the key issue of the enforceability of copyrights in code that constitutes application programming interfaces, or APIs, which are used in building software applications. The Court of Appeals held that Oracle's "declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection".

Source code for software is copyrightable as an expression. And, Google copied huge chunks of Oracle's code from the Java Standard Library without license. Moreover, the statutory section on copyrightable subject matter does not carve out an express exception for APIs.

Google argued that Oracle seeks copyright protection for a "system" or "method of operation", which the Copyright Act expressly provides are not copyrightable.

In addition, Google, and amicus curiae, have articulated and relied heavily upon policy rationales for denying copyright protection, including promoting interoperability, maintaining balance in copyright law, protecting small and startup business, and removing the potential for anticompetitive conduct.

Also, the DOJ, which also enforces antitrust law, may not have viewed as Google as an appropriate petitioner for protecting small businesses from anticompetitive conduct by companies with market power.

These policy arguments may arise again in this case, because the Court of Appeals has remanded to the District Court the defense of fair use. These policy arguments are more pertinent to fair use analysis.

Ed Black, head of the Computer and Communications Industry Association (CCIA), stated in a release that "The technology sector is heavily dependent on interoperability and imposing legal constraints on interoperation between programming languages can lead to serious competitive harm.".

He wrote that the OSG got it wrong, and that "The Supreme Court should absolutely hear this case."

2. Statute. Section 102(a) provides that "Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works."

Subsection 102(b) adds that "copyright protection" does not extend to "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."

3. Nature of the Dispute. Sun Microsystems developed the Java platform two decades ago. Sun personnel wrote the application programming interfaces (APIs) at issue in the Java programming language.

The Court of Appeals wrote that "Many software developers use the Java language, as well as Oracle's API packages, to write applications (commonly referred to as “apps”) for desktop and laptop computers, tablets, smartphones, and other devices." (Parentheses in original.)

Oracle announced its plans to acquire Sun, and all of its proprietary rights in Java, in April of 2009. It completed the transaction early in 2010. Oracle does not claim copyright in the Java language, but it does claim copyright in the Java Standard Library, includes APIs.

Google acquired Android, Inc. in 2005, and proceeded to develop the Android mobile operating system. Google boasted in its petition that "In the second quarter of 2014, third-party manufacturers such as Samsung, HTC, LG, and Lenovo sold more than 255 million smartphones that use the Android platform."

Oracle wrote in its complaint that "Google's Android competes with Oracle America's Java as an operating system software platform for cellular telephones and other mobile devices." It continued that "The Java platform is a bundle of related programs, specifications, reference implementations, and developer tools and resources that allow a user to deploy applications written in the Java programming language on servers, desktops, mobile devices, and other devices. The Java platform is especially useful in that it insulates applications from dependencies on particular processors or operating systems."

The Court of Appeals wrote that Android is "a software platform that was designed for mobile devices and competes with Java in that market".

Google and Oracle discussed licensing the code. However, the Court of Appeals wrote, Oracle did not license the code because of "Google’s refusal to make the implementation of its programs compatible with the Java virtual machine or interoperable with other Java programs. Because Sun/Oracle found that position to be anathema to the ``write once, run anywhere´´ philosophy, it did not grant Google a license to use the Java API packages."

Then, Google proceeded to use the Java programming language to design its own virtual machine (Dalvik VM) and to write to write its own implementations for the functions in the Java API that were key to mobile devices. But, the Court of Appeals wrote, Google "copied the declaring source code from the 37 Java API packages verbatim".

Oracle's argument is that this code is protected by copyright law, Google copied without license, and therefore Oracle is entitled to damages and injunctive relief.

Google's argument in the present petition is that the code at issue is not subject to copyright protection.

4. Proceedings Below. Oracle filed a complaint in the U.S. District Court (NDCal) on August 12, 2010 against Google alleging, among other things, patent infringement and copyright infringement. See, story titled "Oracle Files Patent Infringement Complaint Against Google" in TLJ Daily E-Mail Alert No. 2,124, August 17, 2010.

Oracle alleged that it "owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform", and that Google copied without license.

That Google copied code is not in dispute. Google did dispute whether the copied code is subject to copyright (under 17 U.S.C. § 102), if so, whether its copying was protected by the doctrine of fair use (under 17 U.S.C. § 107).

The District Court trial jury found that Google infringed Oracle's copyrights in 37 API packages, and a specific computer routine called rangeCheck. It found no infringement with respect to eight decompiled security files. The jury deadlocked on Google's affirmative defense of fair use.

The District Court later ruled that the 37 API packages are not copyrightable. The District Court then granted judgment to Google on the copyright claims.

(The jury also found no patent infringement. That was not part of the May 2014 Court of Appeals opinion, and hence, is not at issue in the present petition for writ of certiorari.)

Oracle appealed, and Google cross appealed, to the Federal Circuit.

A three judge panel of the Federal Circuit unanimously held that "the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection". Hence, it reversed District Court's copyrightability determination with instructions to reinstate the jury's infringement finding as to the 37 Java packages.

The Court of Appeals also remanded "for further consideration of Google's fair use defense in light of this decision".

5. Google's Petition. Google filed a petition for writ of certiorari with the Supreme Court on October 6, 2014.

Google argues that Oracle seeks copyright protection for a "system" or "method of operation", which Section 102(b) provides are not copyrightable. This, Google argues, may be subject to patent protection, but not copyright. Google also argues that there exists a conflict among the federal appeals courts which only the Supreme Court can resolve.

Google also advances the policy arguments that the Court of Appeals' holding will suppress innovation, and harm small and start up companies.

Google wrote that "this case is a prime example of the importance of compatibility and lock-in. Programmers have invested significant time and effort in learning the Java language , including the shorthand commands. ...But now, long after Sun lured computer programmers into the Java community and after any patent protection likely would have expired, Sun’s successor Oracle is attempting to build a wall around use of Java’s method headers."

6. Amicus Briefs. Numerous persons and entities filed amicus curiae briefs with the Supreme Court.

The Computer & Communications Industry Association (CCIA) filed an amicus brief urging the Supreme Court to grant certiorari and reverse the judgment of the Court of Appeals.

The CCIA wrote that the APIs at issue in this case are "interface specifications". And, "If a company could exercise proprietary control over the interface specifications implemented by its products, that company could determine which products made by other firms -- if any -- would be compatible with its software. And should that company have a dominant position in a particular market, it could use its control over compatibility to expand its dominant position into adjacent markets."

"Moreover, such authority would extend the rights under copyright beyond what is necessary to protect the original expressive elements that have traditionally been offered protection under American copyright law, and it would override limitations on copyright crafted to protect the public good." The CCIA continued that "Such a broad monopoly would have serious implications for consumer welfare."

"These negative consequences would be compounded by the fact that the personal computer revolution and the emergence of the Internet have produced an overwhelming need for interconnection between different elements of computer systems. Prohibiting competitors from accessing de facto standard interface specifications would lock users into a particular operating system or network software environment, and would inhibit the transfer of data between users with different computing environments."

The Public Knowledge (PK) argued in its amicus brief that the Supreme Court should grant certiorari, and reverse.

The PK argued that "Copyright is granted to promote the public interest in generating new creative works, and as such balances between securing incentives for authors and ensuring an open space of ideas upon which future creators may build. As part of that balance, this Court and others have repeatedly held, since the venerable Baker v. Selden, that that no copyright may inhere in functional elements of a work. Such elements, being incidents of practical knowledge and the useful arts, cannot be restrained under a copyright system intended for aesthetic expression." (See, 1879 opinion of the Supreme Court in Baker v. Selden 101 U.S. 99.)

The PK continued that "The Federal Circuit ignored this essential mandate, by finding copyrightable an element of software that is quintessentially a method of operation. Left uncorrected, that decision threatens to undermine the fundamentalbalance of copyright law."

The PK concluded, "But it also threatens to undermine the decades of progress in Internet and computer technology that have come about only because the openness of technology interfaces enabled enormous competitive growth."

See also, amicus brief of HP, Red Hat, Yahoo urging the Supreme Court to grant certiorari and reverse the Court of Appeals.

OSG Brief. The OSG urged the Supreme Court to deny the petition for writ of certiorari. It wrote the Google's arguments that the code at issue is unprotected under Section 102(b) as a "system" or "method of operation" is without merit.

The OSG wrote that "Despite the inherently functional character of all computer code, the Copyright Act makes clear that such code can be copyrightable. Nothing about the declaring code at issue here materially distinguishes it from other computer code".

It also wrote that there is no genuine circuit split.

The OSG also addressed the policy based arguments. "Although petitioner has raised important concerns about the effects that enforcing respondent's copyright could have on software development, those concerns are better addressed through petitioner's fair-use defense, which will be considered on remand."

This case is Google v. Oracle, Supreme Court of the United States, Sup. Ct. No. 14-410, a petition for writ of certiorari to the U.S. Court of Appeals for the Federal Circuit, App. Ct. Nos. 13-1021 and 13-1022. The Court of Appeals heard appeals from the U.S. District Court (NDCal), D.C. No. 10-CV-3561. See also, Supreme Court docket.

(Published in TLJ Daily E-Mail Alert No. 2,734, June 1, 2015.)