Google v. Oracle VI: Google’s Distract, Divide, and Conquer Strategy

As proceedings in Google v. Oracle were delayed by the coronavirus, I also paused writing about the case, but now that oral arguments are scheduled for October 7, this topic will return to the headlines in copyright and tech news. During the break, I had the opportunity to review all the briefs filed in this case, and as a general assessment, it does seem as though Google and its supporting amici want to portray software as a special category of works that is somehow protected according to different standards than other categories of works under copyright. Because software is always functional in nature, and because copyright does not protect functions, it is certainly a category that can seem confusing to discuss.

Consequently, Google’s strategy (and not for the first time) reads as though it is designed to exploit any inherent confusion about computer science, or the industry, with the hope that the Court will misinterpret the keystone legal question in this case. At the very highest level of appeal, they seem to be saying even to the Justices, “You legal folk don’t get technology.” Copyright owners in every medium are very familiar with Google’s repeated (and often successful) use of this rhetorical device in the blogosphere, and while it is often suspect in the court of public opinion, it is a profoundly dubious strategy in a court of law.

Google and its amici repeat the themes that if the Court were to affirm the Federal Circuit’s finding of infringement in the use of what they call “declaring code” (a.k.a. source code), this would be an unprecedented expansion of copyright. As a result, the argument continues, this will allegedly stagnate investment and competition in the code-writing industry by transforming the biggest players into monopolistic entities, who will then use their “new” copyrights to stifle innovation and interoperability.

That is a doozy of an accusation to be made by one of the most anticompetive companies in modern history—and then to be leveled at a plaintiff whose product is designed to promote interoperability—even mandates interoperability by all licensees. This claim also belies the many advances in innovation and software development in the period since the Federal Circuit’s 2014 decision in favor of copyrightability. But I’ll return to the particulars of the business squabble in a later post. For now, let’s focus on the copyright question before the Court.

The Keystone Legal Matter:  Copyrightability of Declaring Code

My general takeaway from the briefs is that the Court will not be easily persuaded that even the declaring code copied by Google fails to meet the standard of originality sufficient for copyright to protect these works. “Originality” under copyright turns primarily on the determination that a modicum of creativity is present in the work, and not even Google and its amici seem to present a full-throated contradiction to Oracle’s industry-expert amici who say that declaring code can be highly creative. In fact, it seems to be widely acknowledged that Java in particular has been so successful because of its tremendously creative (a word often used is elegant) design.

If it is true that the declaring code and the implementing code together comprise the “human readable” set of instructions given to a computer, this suggests that declaring code can be a significantly important aspect of the expression. In particular, we must assume that when countless human programmers describe code as “elegant,” the authors of that code have communicated something to them in a manner akin to a novelist communicating to her readers. That something, in copyright terms, is generally found to be “creative enough” to fall under legal protection.

Although Google does have more software engineers signed onto its supporting briefs, the Court does not ask for a show of hands. Moreover, it is notable that even those briefs appear to navigate around the central matter of copyrightability, claiming that declaring code is the functional part of an API, while only the implementing code, which Google wrote itself for the Android platform, is the expressive part.

The computer scientists in support of Google imply that the declaring code is non-creative—that it is akin to a language, which, by itself “does not tell a computer to do anything.” But if I understand the development and function of a whole Java package correctly, there is a sleight of hand at work in this claim, one that seeks an idea/expression analysis that is not demonstrably inherent to the work at issue. For instance, the computer scientists’ brief for Google presents a very simple example of declaring code that is used to sort numbers, and then it states:

“A programmer must type those words exactly as they appear above, including the same capitalization, punctuation, and order. Otherwise, the declaration will cause an error or specify a method with different functionality, like sorting words instead of numbers.”

That description as to how a programmer must use that particular code does not in any way answer whether the code at issue is sufficiently creative for copyright to attach. It also obfuscates the fact that Google could have written its own declaring code in Java to perform the same functions. To borrow an analogy apropos the copyrightability question, consider that a musician must play exactly certain notes in a precise order (and within a limited range of tempos) in order for a listener to recognize that the song being played is “Hey Jude.”

So, Google’s broader argument, begging the Court to divide declaring and implementing code, begins to appear rather circular—the equivalent of saying that because “Hey Jude” is widely recognized by musical performers and listeners, a new composer may need to implement this melody into a larger composition; and, in order to do so, he must copy exactly the correct notes in their precise structure in order to maintain the “readability” of the song. But this meandering rationale does absolutely nothing to nullify the copyright in the composition that was copied. Ditto, it seems, with the 11,000 or so lines of code copied by Google.

Sticking with this analogy, Google would ask the Supreme Court to vitiate copyright in a musical work’s composition on the untenable premise that copyright does not attach until the composition is colored by arrangement and performance choices. But that is not correct. On the contrary, a work is copyrightable as long as it is 1) fixed in any tangible medium of expression; and 2) embodies a “modicum of creativity.” And according to the computer scientists in support of Oracle, Java APIs are more than modestly creative …

“Significant creativity goes into the design of the structure, sequence, and organization of the API itself, including how to structure the libraries, packages, classes, and methods, as well as the declaring code itself. Indeed, part of the beauty of Java is that groupings and classes often share or ‘inherit’ features that are commonly used, such that the decision of how to group classes and methods becomes a creative design choice, not just a categorizing or filing exercise.”

Replace words like libraries, packages, classes, and methods with keys, chords, notes, tempos, and rhythms, and one need not be a composer to understand that certain selections among these common elements will produce “Hey Jude,” while an entirely different selection among these same elements will produce “I Wanna Be Sedated.” Likewise, the Justices need not possess any programming experience to conclude from that description (if accurate) that the declaring code at issue is a work that easily meets the threshold of originality within copyright law.

Google’s Idea/Expression Claim May Reveal Its Own Weakness to the Court

Google appeals to the limitation under Section 102(b) that bars copyright protection to “methods or functions.”  In order to support this claim, a few amici ask the Court to turn to the doctrine of “separability” under an infringement analysis whereby the Court separates the expressive elements of a work from any functional “article” to which they are attached. In 2017, the Supreme Court did such an analysis in Star Athletica v. Varsity, where the majority opinion held that the designs Varsity made for its cheerleader uniforms were independently copyrightable as pictorial works, separate from their application to the useful, non-copyrightable, uniforms.

Amici Python Software et al, in support of Google, contend that this Court’s precedent in Varsity should favor Google because it will not find any expression to protect if they separate the declaring code from the whole work of the Java APIs. But, that line of reasoning may undermine Google’s defense because Varsity affirmed just how minimally original a work can be in order for it to be protected. In fact, in Justice Ginsburg’s concurring opinion, she disagreed that separability had to be considered in Varsity, holding that the works submitted to the USCO were “not designs of useful articles. Instead, the designs themselves are copyrightable…works reproduced on useful articles.”

That kind of straightforward analysis may not avail Google, if the Court agrees with Oracle’s software-expert amici that the declaring code copied is not merely functional like the gears in a machine, but is an expressive work on its own. As several amici in support of Oracle noted in their briefs, Google’s own witness, its “Java guru,” testified that there can be “creativity and artistry even in a single method declaration.”

In sum, the various claims that the declaring code is not creative begin to read a bit like after-the-fact wishful thinking, which would mean that Google is the party seeking the unprecedented legal standard in this case. As several amici for Oracle mention, this recommends an appeal to Congress and not the Court. Add to all this the fact that the separability Google is now seeking was debated and rejected at the time computer code was added to the Copyright Act in 1980, and their claim of non-copyrightability begins to look like a strenuous climb over a very steep mountain of settled law.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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