Copyright Alliance CEO Keith Kupferschmid and Former Register Maria Pallante Discuss Google v. Oracle

I recently spoke with former Register of Copyrights Maria Pallante about the copyright case Google v. Oracle America pending before the U.S. Supreme Court. Maria served for more than 10 years as U.S. Copyright Office senior counsel, including nearly six years at the helm of the Office as Register of Copyrights until 2016. She is currently the President and CEO of the Association of American Publishers (AAP), which filed an amicus curiae brief in the case. The Copyright Alliance filed a brief as well.

In 2010, Oracle sued Google for copying and distributing huge amounts of Oracle’s popular Java SE Code in its Android phones, alleging a number of serious claims including copyright infringement. Following several procedural developments in the case, the Court of Appeals for the Federal Circuit sided with Oracle in 2014, reversing a district court opinion and jury determination in favor of Google.

To be clear, Google admits that it copied Oracle’s code without permission – more than 11,000 lines of code! In its filings with the Supreme Court, it continues to make two sweeping arguments, one asserting fair use and the other questioning the copyrightability of Java Code.

I was pleased to have the opportunity to ask Maria’s legal opinions regarding the case, starting with the following more general question:

Keith: Is this case important to people outside of the software and coding industries, meaning should all creative industries be watching it?

Maria: Yes, absolutely. Everyone who relies on the Copyright Act should pay attention to this case, not only because the Supreme Court infrequently takes copyright cases, but also because this is the first time in 26 years that it will decide the merits of a fair use defense. Put another way, all authors rely upon the expectation of enforceable exclusive rights and appropriately defined fair use contours. This is true whether we are talking about the authors of books, musical compositions, motion pictures, or computer code! In Google v. Oracle, the dispute is about the expression and appropriation of software, but the Justices will be taking us through cornerstone principles of copyright law in reaching a decision. We should fully expect both lawyers and lower courts to apply the outcome to other copyright contexts, some of which will invariably reflect similar efforts to devalue creative expression and gut the marketplace for licensing transactions, without which copyright law cannot operate.

Keith: Although Java Code has been hugely popular and successful for Oracle and its licensed customers, Google has asserted that copyright law doesn’t apply to the portions it copied. What do you make of this argument?

Maria: I have a great deal of difficulty with Google’s position. It is really arguing two points: first that Java SE code is an uncopyrightable “method of operation,” and second that even if it is copyrightable, it has achieved a level of success that makes it indispensable to downstream actors like Google and it should therefore lose protection. I think both arguments fail.

On the first argument, the code that Google copied is no different than any other computer program that is copyrightable as a literary work under the definitions of the Copyright Act. As background, we know that Congress went through great deliberations to bring computer programs squarely into the four corners of the statute, and that it rejected other possible legal treatments such as sui generis protection. It is also true that Congress recognized some limitations, namely that the expression of a computer program might occasionally be constrained by functionality. In these narrow circumstances, where the idea and the expression of the program have merged and are difficult to separate, Congress made clear that the expression should not be protected. The so-called “merger doctrine” does not, however, foreclose copyright protection if the expression can be written in any number of different ways to achieve functionality, as was the case when Oracle’s predecessor-in-interest first created and invested in the now hugely successful Java platform. At the heart of Google’s position is the reality that developers prefer Java code when writing programs for Android, which in my opinion suggests that the dispute is less about whether Java is independently expressed under the tests of the Copyright Act and more about the inherent value of Java to Android products.

Regarding Google’s second argument, it would be an absurd conclusion if we began injecting creative works into the public domain whenever they reach a high level of success. The fact is there will always be creative works that are game changers in the copyright marketplace, just like there will always be creative works that are not. This calculus of ingenuity, creation, risk, and investment is wired into the Copyright Act, sometimes paying off, sometimes not, but always in search of the next great work that will propel the public forward. By all accounts, the Java platform was a game changer for the software industry and for that matter the modern world; depriving it of protection would be at odds with the principles of copyright law. To offer a comparison, imagine if we stripped the author of a once-in-a-generation musical of the ability to license it for adaptation into other languages, media, or business models, because of its immeasurable popularity. Robbing authors when their works become popular is not how the law encourages progress in the United States.

Keith: Google has also argued that its appropriation, though extensive, is permissible under fair use. Will this be a difficult determination for the Court?

Maria: No, actually, I think the fair use question will be pretty routine for the Court. It will consider the judge-made doctrine of “transformative use,” and weigh the four statutory factors of section 107. I do not see a colorable transformative argument here because smart phones do not present a new or different context than other computers, and because, in any event, Oracle already was licensing the Java platform for use on mobile phones when Google copied and deployed it to great advantage in its competitive Android products. The Court will likely find that Google’s copying was extensive, its use was commercial, and that it did not alter the copyrightable expression in dispute.

I would also note that the Supreme Court is well aware that copyright markets reveal themselves over time, which is why future markets and ramifications are always part of a fair use analysis – not just for the copyright owner, but also for its derivative licensees. What Google is arguing would quickly fall apart if one looks outside of software to, say, a movie based on a novel. The author of the novel may not have envisioned her book as the basis of a movie, original soundtrack, or other downstream property, but in fact the creators who come after her owe their respective creativity to that underlying literary work, and to the value chain of copyright that both incentivizes and authorizes derivative properties. This is how the Copyright Act works: it assumes that creativity will beget more creativity, and that downstream authors will account to the authors who come before them by seeking and securing licenses.

With all of this in mind, I hope that the Supreme Court will agree with the Federal Circuit’s conclusion that no reasonable person could conclude that Google’s verbatim copying of original code into a competing commercial product constitutes fair use.

Keith: The Federal Circuit overruled the lower court on fair use, and while this was welcome news for Oracle, Google seems to be arguing that an appellate court can’t do this. What is going on here?

Maria: This part of the case is about the rules of civil procedure. I very much hope that the Supreme Court will affirm that courts may decide questions of fair use in the same manner as any other copyright issue, meaning that jury determinations should be reviewable on appeal. I think there will be huge ramifications for the copyright framework otherwise, especially as to the well-established role of the courts in evolving the law. In other words, the contours of fair use are so critical to the overall integrity and balance of the copyright statute that to place the jury’s determination beyond the reach of the courts would be tantamount to removing questions of fair use from the courts – including in instances where the court might accept the jury-agreed facts but reach a different legal outcome.

Keith: It is always a bit of a mystery as to why the Supreme Court takes some cases and not others. What would you say is at stake in this case?

Maria: I think it will be very helpful to hear from the Supreme Court about fair use in a twenty-first century case. Ideally, it will conclude that copyright principles are impervious to the passage of time or the commercial interests of any one defendant, and that Google should have entered into a license if it wanted to leverage Oracle’s code. Copyright law is about integrity and balance. Balance has sometimes been deployed by critics of copyright protection as a justification for weakening copyright protection and expanding fair use. But to me, balance is about the overall copyright scheme. Does the law prescribe clear exclusive rights to authors and their licensees? Are there corresponding processes and remedies available when infringement occurs or is alleged? Are the exceptions and limitations, including fair use, appropriately calibrated and applied so as to further a justifiable policy objective, but not so broad as to overtake the author’s rights and ability to monetize his or her work, which are also policy objectives? And let’s not overlook that copyright commerce and licensing are also very important objectives. All of these things fuel creativity, the modern marketplace, and, ultimately, a fantastic public repository of authorship and progress.