Last month, the Supreme Court invited input from the Department of Justice regarding the ongoing Java dispute between Google and Oracle, asking for advice on whether the Court should hear the case. According to the Court’s memo, U.S. Solicitor General Donald Verrilli, Jr. “is invited to file a brief in this case expressing the views of the United States.” Technology Analyst Al Hilwa calls this a “true 2015 nail-biter for the industry” because “[t]his is a judgment on what might constitute fair use in the context of software.”
The dispute between Google and Oracle began in 2010, when Oracle sued Google seeking $1 billion in damages on the claim that Google had used Oracle Java software to design the operating system for the Android smartphone. Google wrote its own version of Java when it implemented the Android OS, but in order to allow software developers to write their own programs for Android, Google relied on Java Application Programming Interfaces (“APIs”). These APIs are “specifications that allow programs to communicate with each other,” even though they may be written by different people. Oracle alleged that Google copied 37 packages of prewritten Java programs when it should have licensed them or written entirely new code. Google responded with the argument that such code is not copyrightable under §102(b) of the Copyright Act, which withholds copyright protection from “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 [an original work of authorship].” Google also argued that the copied elements were “a key part of allowing interoperability between Java and Android.”
In May 2012, the Northern District of California ruled that APIs are not subject to copyright laws, finding that where there exists “only one way to declare a given method functionality, [so that] everyone using that function must write that specific line of code in the same way,” such coding language cannot be subject to copyright. The court also held that “whether an element is necessary for interoperability should have no impact on its protectability.” In May 2014, The U.S. Court of Appeals for the Federal Circuit ruled the other way, finding that Java’s API packages were copyrightable, and remanded the matter to the district court to determine whether Google’s copying constitutes a lawful fair use. In response to the Federal Circuit’s ruling, Google filed a petition this past October for a writ of certiorari. Also, numerous large technology companies including HP and Yahoo have filed amicus briefs in support of Google’s position. Google issued the following statement in response to the Supreme Court’s request for input from the Obama Administration: “We appreciate the Supreme Court’s careful review of this issue and look forward to the Solicitor General’s feedback.”
The Supreme Court will take no further action until the Solicitor General files its brief offering the views of the Obama administration on this copyright dispute. According to Peter Toren, an attorney with Weisbrod Matteis & Copley, “the Court may consider this important for definitive clarification as to what extent software is copyrightable.”
Lauren Babst is an editor on the Michigan Telecommunications and Technology Law Review, and a member of the University Michigan Law School class of 2016.