On October 7th, the Supreme Court heard oral arguments in the much-anticipated Google v. Oracle America copyright dispute that has been winding its way through lower courts for the past decade. At the virtual hearing, arguments by the lawyers and questions from the Justices focused on a few key issues, including 1) the copyrightability of Oracle’s declaring code, 2) whether the merger doctrine renders the code uncopyrightable, and 3) the appropriate standard of review for fair use determinations.
We posted a comprehensive analysis of these and other issues discussed during the oral arguments, and there have been a number of articles and blogs weighing in on the case since then. While these articles include a variety of accounts, from general summaries by leading news outlets to more nuanced reviews by IP experts who have been following the case for years, the published reactions include some shared takeaways that could spell trouble for Google.
The New York Times
In an article published the same day as oral arguments, the New York Times reported that the Justices recognized that “the copyright case of the decade” could have far reaching implications for the computer software industry. While the article stopped short of predicting a winner, it noted that “on balance, Mr. Goldstein, Google’s lawyer, faced more hostile questions than did his adversaries in the case.” Touching on the question of copyrightability, the article highlighted an exchange between Justice Alito and Goldstein in which Alito said that “I am concerned that, under your argument, all computer code is at risk of losing protection.” As to Google’s fair use defense, the article focused on the response Malcolm Stewart, Deputy Solicitor General representing the U.S. government in support of Oracle, gave when asked by Justice Sotomayor whether the use was transformative. Mr. Stewart explained that simply using content on a different platform is not transformative, likening Google’s use of Oracle’s code to livestreaming a movie over the internet that had only been previously released in theaters. On the merger question, the article drew attention to the fact that many Justices pointed out that Google had options besides using Oracle’s code and that other companies had either taken a license from Oracle or innovated their way around the copyright protected code.
CNN Business also reported on the case the same day as oral arguments, and like the New York Times, acknowledged that Google’s attorney got the brunt of the Justices’ tough questions. The article made clear that “[o]nly Justice Stephen Breyer appeared to express a strong preference for Google’s position.” Addressing the merger issue, the article noted that “Chief Justice Roberts suggested that for Oracle’s code to become so important that others would seek to copy it implies that the company should be rewarded, not hurt through copyright infringement.” The article also observed that while Google’s attorney claimed a finding in favor of Oracle would destroy the software industry, Kavanaugh pointed out that since a 2014 federal circuit ruling for Oracle, “Google’s nightmare scenario has not come to pass.”
An article posted shorty after oral arguments on Ars Technica—a tech-centered outlet that often takes a skeptical view of copyright—was blunt in calling the hearing “a disaster for Google.” On copyrightability, the author of the article admitted that after listening to the arguments, “I had trouble imagining a five-justice majority accepting Google’s argument that API’s cannot be copyrighted.” The article went on to quote a copyright scholar from Cornell University who said that, in arguing that Oracle’s code should not be protected by copyright, Google’s attorney “did an abysmal job.” The article noted that “there were at least four justices—Kavanaugh, Alito, Thomas, and Gorsuch—who seemed skeptical of Google’s position that APIs can’t be copyrighted. If all four voted for Oracle, the best Google could hope for is a tie. A tie would still be a loss for Google, since it would leave in place Oracle’s win at the appellate level but wouldn’t set a nationwide precedent.” While the article noted that some Justice’s seemed sympathetic to Google’s arguments at times, it concluded that “[f]rankly, there seems to be a good chance that Oracle will prevail.”
Also reporting on the oral arguments was IP Watchdog, a leading resource for news and commentary on intellectual property law matters. On the merger question, the article noted that “the justices struggled to understand why Google could not have just written its own declaring code, as others, like Apple and Microsoft, have done.” While the article explained that Google’s attorney tried to argue that forcing Google to develop its own code would be inefficient and contrary to the goals of copyright, it observed that Gorsuch, Sotomayor, and Kavanaugh appeared skeptical and continued to press him on the merger issue. As to copyrightability, the article noted that Sotomayor questioned Oracle’s attorney, Joshua Rosenkranz, about circuit court holdings that she claimed found declaring code not protectable by copyright. Rosenkranz responded by challenging Sotomayor’s interpretation of the lower courts findings and reminding the Court that not a single case “has ever said that you can copy this vast amount of code into a competing platform to use for the same purpose.” The article went on to provide reactions from prominent IP lawyers who posited that the Court would affirm that Oracle’s code is in fact copyrightable. Finally, IP Watchdog’s founder and CEO, Gene Quinn, said that “it seems to me that unless the Supreme Court fundamentally changes the law, Google will lose.”
Reporting two days after the hearing, an article on The Verge detailed the sometimes-confusing analogies and comparisons that many of the Justices attempted to make regarding software code. It quoted a line from of a copyright law professor, who tweeted “Prediction: The side that wins the metaphor battle will win the case.” Though it wasn’t quite clear who “won” the metaphor battle, the article noted that both sides declared victory afterwards, with a top Google executive claiming the Court “confirmed the importance” of the legal rights protecting software interoperability. Conversely, the article quoted an Oracle representative who said the court “agree[s] with us that all software is covered by copyright.” Discussing copyrightability, the article noted that the Justices “didn’t necessarily seem convinced that Oracle’s API wasn’t protected by copyright.”
Stanford Law Professor Mark Lemley was interviewed by Marketplace Tech after the hearing and observed that “Oracle’s arguments seem to get a lot of traction with a lot of the justices.” Speaking to issues of copyrightability and merger, Lemley noted that “a number of the justices seemed to think that the fact that Oracle had written this code, even if this code was now necessary to make programs work with Java, meant that it was the copyright owner and had an entitlement to protection.” When pressed on a potential outcome in the case, Lemley said that “many and maybe most of the justices were inclined to take Oracle’s side and to say it was copyrightable. Justice [Stephen] Breyer, and maybe Justice [Sonia] Sotomayor and [Elena] Kagan, were more skeptical of that claim. If Google prevails, I think it might prevail not on the grounds that you can’t protect this information at all, but on a narrower ground that the [U.S. Federal Appeals] Court was wrong to overturn the jury’s finding of fair use, that Google’s particular use of this was permissible, or at least that there was a factual dispute and the jury could legitimately find it permissible.”
Center for the Protection of Intellectual Property (CPIP)
Antonin Scalia Law School’s Center for the Protection of Intellectual Property (CPIP) also posted a blog recapping the oral arguments and analyzing the key issues discussed. As to the question of copyrightability, the article pointed out that the Justices sometimes struggled to analogize the copyrightability of computer code to a number of different scenarios but that they ultimately “did not seem convinced by Google’s assertion that Oracle’s method of writing code was the only way to create the function Google wanted for its Android platform.” Turning to fair use, the article noted that “Mr. Rosenkranz pointed out that Google conceded that every line of code copied serves the same purpose in Google’s Android platform as it did in the original software—there was no alteration or transformation of the original code.” The article also highlights an exchange between Goldstein and Kavanaugh in which the Justice said that the sky has not fallen since Google’s fair use defense was rejected years earlier.
As many of those reporting on the hearing pointed out, it can often be a futile exercise to predict how the Supreme Court will rule in a given case. Simply because the Justices had more tough questions for one side than the other or seemed skeptical about a particular argument doesn’t mean that their views won’t change in the coming months when considering the case more deeply. But it is worth noting that most commenters seem to think—based on what they gleaned from the oral arguments—that it is highly unlikely the Court would issue a ruling that holds (1) Oracle’s declaring code has always been uncopyrightable or (2) that the merger doctrine has rendered the code uncopyrightable. To the extent there seemed to be any ambiguity in how the Court might rule, some articles noted that it was less clear how some Justices might rule on the standard of review for fair use cases. As if that wasn’t enough uncertainty, there’s also the fact that only eight Justices heard the case and there could be a 4-4 split in which Oracle’s appellate level win would be confirmed, but no Supreme Court precedent would be established on the key copyright issues. Whatever the Court decides, all those interested in the intersection of copyright law and technology will be anxiously awaiting the opinion, which is expected no later than the end of June 2021.
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