Copyright Law Favors Oracle as It Faces Off with Google in Supreme Court

On October 7th, two famous tech companies, Google and Oracle, will battle in the Supreme Court over the copyrightability of computer code. It is a landmark case that gives the justices a unique opportunity to confirm our nation’s deep commitment to property rights, the original understanding of the Constitution’s Copyright and Patent Clause, and sound textualist principles of statutory interpretation.

Google v. Oracle America arises from Google's decision to copy more than 11,000 lines of computer code from the Java SE software platform without obtaining a license. One of the most successful software packages ever written, Java SE, which was purchased by Oracle from Sun Microsystems, revolutionized app development by allowing developers to write a single app that works on a wide variety of devices.

Fifteen years ago, Google set out to develop what would become the Android operating system for smartphones and other mobile devices. The company could have developed its own mobile device software platform from scratch, as Apple had done with iOS. However, it wanted to take advantage of developers' familiarity with the popular Java SE platform. So Google copied 11,330 lines of Java SE's declaring code — the computer code developers interact with — as well as the organization of the lines of code.

Oracle sued for copyright infringement and twice won in the U.S. Court of Appeals for the Federal Circuit. The second time, Google persuaded the High Court to review the decision.

As explained in a Supreme Court amicus brief I co-authored, Google is essentially asking the Supreme Court to change the law by ruling that the declaring code that defines Java SE's "methods" (the thousands of small computer programs that make up the platform) does not qualify for copyright protection, unlike the implementing code that implements each method. That view is in direct conflict with the plain text of the Copyright Act, which has expressly protected computer code since 1976 — thus aiding the development of America's world-leading, highly innovative software industry — and makes no distinction between declaring and implementing code.

Google's argument is also in conflict with both the Constitution’s strong protection of property rights, including copyright, and the intent of Congress. Beginning with the first Copyright Act in 1790, Congress has consistently responded to technological developments by expanding the scope of copyright protection to ensure that creative works — from music and films to computer code, the language of computer programmers — are protected to the limit of Congress’s constitutional grant. In that light, it is doubtful that Congress intended to leave declaring code unprotected.

Google's reliance on policy arguments exemplifies a view of copyright as a contingent right that is tolerated only to the extent it makes for good policy. But that's not how the Framers who put copyright in the Constitution saw it. The Framers, profoundly influenced by philosopher John Locke, understood copyright as rooted in the natural rights of persons in their property and as fundamental to liberty. That is why they included a clause in the Constitution empowering the federal government to protect the works of "Authors and Inventors."

Google seeks shelter in Section 102(B) of the Copyright Act, which excludes copyright protection for “any idea, procedure, process, system, [or] method of operation.” But computer code, by definition, spells out a procedure or method of operation in the non-legal sense of those terms. So Google's argument proves too much. It would render all computer code unprotected, contradicting the clear language of the 1976 Copyright Act.

Instead, Section 102(B) simply codifies the longstanding rule that copyright protects an author’s particular expression of an idea, not the idea itself. Accordingly, Oracle does not own the idea of a platform that empowers developers to write a multi-device app, just like the composer of a country music song does not own the idea of a trucker singing about his lost loves. Nor can Oracle claim copyright protection for the general functionality found in Java SE. But Oracle does have a copyright in the declaring language used to express that functionality in Java SE — just as the composer owns the sequence of words and notes in his song — and that's precisely what Google copied.

A federal trial court initially bought Google's arguments but the Federal Circuit, the court with the most intellectual property expertise in the nation, reversed the lower court, correctly holding that the declaring code was protected. The Federal Circuit also rejected Google's claim that its copying fell under the "fair use" exception, including the silly argument that Java SE's popularity with developers made the copying necessary.

Because the law is on Oracle's side, Google argues that the justices should look "more broadly [to] whether the [copying] in question advances the goals of copyright." Accordingly, it argues that a ruling against copying declaring code would hinder "the rapid development of interoperable computer software" and otherwise cause the sky to fall on the software industry. While there are numerous reasons to think these predictions baseless, the more important point is that a copyright case does not call for judges to engage in a free-ranging search for the best copyright policy. Rather, as Justice Antonin Scalia wrote, a court's job is "to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade.”

Indeed, Congress has successfully performed this task repeatedly over the life of the Copyright Act, by balancing complicated and sometimes countervailing policies that are particularly ill-suited for judicial administration. The proper audience for Google’s policy concerns, therefore, is not in the Supreme Court, but across the street in Congress.

Curt Levey is the president of the Committee for Justice, a nonprofit legal and policy organization, and worked as a computer scientist before attending law school.