By Barry Werbin
On Friday, November 15th, the Supreme Court agreed to hear the long-running Oracle v. Google case, which addresses whether software application program interfaces (APIs) are subject to copyright protection and if Google was otherwise entitled to a fair use defense for copying portions of Oracle's JAVA declaring code and the structure/sequence/organization (SSO) of Oracle's Java APIs. The JAVA language allows developers to write one set of code that works across different operating systems, and the APIs are the bridge to connect JAVA applications to different systems. Using JAVA, developers only have to "write once."
The case started back in 2012, in the Northern District of California, when Oracle sued Google for copyright (and patent) infringement over Google's copying of SSO attributes from 37 JAVA API packages and literal copying of 11,500 lines of declaring code for its open source Android system. ("Declaring code" is a code statement that establishes an identifier and associates attributes with it, without necessarily reserving its storage (for data) or providing the implementation methods. Google did not copy any JAVA implementation code and wrote its own.) Google argued that the declaring code and API SSO were not protectable, and that even if they were, it was entitled to a fair use defense.
In 2012, the District Court exonerated Google entirely, finding that the JAVA SSO attributes were not protectable as a functional system. The District Court also held that the declaring code wasn't protectable under the merger doctrine, and because that code consisted of merely short names or phrases. (F.Supp.2d 974 (N.D. Cal. 2012).)
In 2014, the Federal Circuit (which had sole jurisdiction because of the additional patent claims), reversed, holding that the declaring code and SSO of the API packages are entitled to copyright protection, and that Google infringed those copyrights. Google's fair use defense was remanded for further consideration. (750 F.3d 1339 (Fed. Cir. 2014)(applying 9th Cir. law).)
In May 2016, on remand, a jury found Google's re-implementation of the 37 Java APIs to be fair use under Section 107 of the Copyright Act. However, that too was short lived, as the Federal Circuit again reversed, holding that fair use did not apply because Google's use was not transformative as a matter of law, Google copied more than was necessary under Section 107, and the use was commercial (even though Android is free to license). (886 F. 3d 1179 (Fed. Cir. 2018).)
Google filed a petition for certiorari in January 2019. Numerous amici, including a group of 78 computer scientists, scholars (including David Nimmer), and other tech organizations like Mozilla, EFF, and Etsy, filed support for Google's petition, arguing in favor of APIs remaining an open standard for new code development. Other amici filed support for Oracle. Microsoft is supporting Google on fair use, although it previously supported Oracle on copyrightability.
Whether SCOTUS would accept the case was uncertain, particularly after the U.S .Solicitor General (at the request of SCOTUS) submitted a brief in September 2019, siding with Oracle and urging the Court not to grant certiorari.
The Court's decision in this case will have huge ramifications in the software and tech industries, and could likely be the most significant decision impacting computer programs since they first obtained express statutory protection under the Copyright Act in 1980.
Order attached granting cert., also granting the motion of 78 computer scientists to file an amicus brief: