Tag: Google v. Oracle

Google v. Oracle XIII:  SCOTUS Should Be Skeptical of the “Sky Will Fall” Argument

I realize the Court will rule anytime now, and that I may be gilding the proverbial lily here; but I drafted this post in early January, and then the world got a little crazy and distracting. Anyway, FWIW, below is my last observation about Google v. Oracle. At least until after the decision. 🙂

In Google v. Oracle, the Supreme Court will render opinions on two legal arguments, either of which could have profound effects for different interests. The Court’s opinion on the copyrightability of Oracle’s “declaring code” will, in one way or another, be felt throughout the software industry, while the Court’s opinion on fair use will affect the entire ecosystem of creators in every category of copyrighted works.

As discussed in other posts, the Supreme Court should reject Google’s attempt to hyperextend the purpose and character of fair use, and in doing so, it should unanimously decline to transform modern copyright doctrine from the bench. In earlier posts, I discussed why Google’s claim that the code at issue should not be held uncopyrightable under the “merger doctrine” (§102(b)), which would have to affirm that the code at issue is a method rather than a form of expression. Nevertheless, the Court may feel hesitant to “upend the software industry,” if it is persuaded that finding copyrightability in Oracle’s code might have this result.

The most compelling argument in this regard is presented in the amicus brief filed by eighty-three computer scientists, which includes some of the most renowned names in software development over the last half century. It is hardly sensible for most of us—and certainly not for me—to debate that industry’s conduct with the likes of Steve Wozniack et al. If these experts say that “reimplementation” of software interfaces (APIs) is standard practice that the software industry has relied upon for decades, that statement must be given both deference and weight.

At the same time, we must keep in mind that “reimplementation” is not barred by copyright—that in fact much of the “open source” copying in that industry is bound by various conditions, which are defined by licensing agreements that are only enforceable under copyright law. In that regard, Java is a classic example of code that offers different tiers of licensing where, for instance, the educator may access all of Java for free, while the commercial user is subject to fees and other conditions. There is nothing remarkable or inherently stifling about these distinctions.

More specifically, as a question of law, even if we accept the computer scientists’ broad description of industry-wide reimplementation as fact, it tells us nothing about whether there is sufficient creativity in Oracle’s declaring code to qualify for copyright protection. In reviewing the various briefs filed by experts on both sides of this case, it seems clear that some declaring code is quite simple, and some is very complex—and creativity, presumably, expands with complexity. Further, there does not appear to be much if any quarrel with the premise that declaring code can be highly creative—easily creative enough for copyright to attach—and if that is correct, that should be the ballgame as a legal matter, regardless of industry practice and expectations. And Google has conceded that Oracle’s declaring code is creative.

This does not mean, however, that the Court will be wholly unsympathetic to the “standard practice” argument, or eager to disturb an entire industry if they believe this could be a consequence of its decision. So, let’s consider the argument a bit further, assuming the computer scientist amici are absolutely right on key facts, but perhaps a shade over-saturated in coloring their picture of the broader landscape relative to Google v. Oracle. For instance, I would pay attention to language in the brief that makes statements like, “Android is the most popular [mobile OS] in the world,” which is presented more than once in defense of Google’s reimplementation of the Java APIs to ultimately “transform” the mobile market.

That sentence caught my attention because the word popular implies consumer choice, which is in fact very limited in the mobile market. If the consumer is a dedicated Apple user, those phones are quite expensive. Alternatively, if the consumer needs a more affordable mobile device, she can choose among different phones that are nearly all running on one OS called Android.* And Android was not made freely and widely available as a gesture of Google’s largesse, or for the purpose of fostering competition of any kind.

While Google seeks to frame its free mobile OS as both generous and revolutionary, consumers have largely come to understand the digital-age axiom that if you’re not the customer, you’re the product. Google no more gives away Android “for free” than it does any of its other platforms. Consumers and various government agencies investigating antitrust practices fully recognize that the price of “free” has been to allow companies like Google to accumulate and manipulate data that is then used to alter consumer behavior, stifle small business in various markets, generate advertising revenue from the exploitation of often-questionable content, and, above all, to solidify their own market dominance.

This is not to say that if Google had licensed the Java code at issue, it would not still be the leading supplier in the mobile market—but that’s part of my point. The reason I homed in on this fallacy of Android’s “popularity” is that it informs a response to the claim in the computer scientists’ brief, which argues that “Uncopyrightable software interfaces address network effect barriers by enabling startups to plug into existing systems and innovate through cumulative improvements.” [Emphasis added]

While that sounds plausible as a generalization, in this particular case, the Court should be mindful that the forces buttressing Android’s market position—especially the network effects—render Google nearly immune to competition from startups. And these forces have little to do with copyright one way or another.

Android is a poor context in which to discuss “addressing network effect barriers.” Google’s market-share and wealth makes the company the very definition of a “network effect barrier.” As such, it seems equally possible that copyright (i.e. a mandate to license the code) is the only protection that a prospective startup has while attempting to thrive in a market presently conquered by the Googles, Amazons, and Facebooks. So, while a startup may get off the ground by copying some aspects of an already-dominant platform, the weakness Google now asks the Court write into copyright law would allow Google to turn around and copy the innovative aspects created by the startup, thereby crowding the startup out of business.

So, when the computer scientists’ brief describes competition in the market, it seems that it is often alluding to intramural competition on a technological playing field owned by one or a few prevailing companies. For instance, there may be competition among developers writing apps for the Android platform, but there is no startup, at least not in the American market, that can feasibly challenge Android for a piece of its share in mobile. And if such a startup were to emerge, it seems farfetched to allege that licensing declaring code, for instance, would be the barrier to stifle that prospective venture. Instead, it seems more likely that the barriers to that potential competitor are much more potent market forces that have little to do with copyright law in general, and nothing to do with the copyright questions presented in this case.

Are the Generalizations Instructive?

Quite possibly, the most intriguing segment of the computer scientists’ brief is where it describes how many developers, including Sun Microsystems itself in the development of Java, have reimplemented software interfaces in the process of bringing their products to market. This section presents a very clear portrait of standard industry practice, but it also reprises those two bugaboo questions I’ve asked before: 1) If unlicensed reimplementation has been so standard for so long, why did other commercial developers license Java declaring code for various purposes?; and 2) Why did Google itself almost enter into a license with Oracle that it only declined due to interoperability conditions with which it did not wish to comply?

Looking at this narrative as an outsider and giving all parties in the computer expert world their due respect, it is hard not to feel that, amid the generalizations about industry practice and innovation, some details are missing that are intrinsic to this case. Either declaring code is never the subject of copyright OR it is always the subject of copyright, OR some declaring code is properly protected while other declaring code is properly not protected. This latter conclusion would depend upon the amount of originality in the work, just like every other copyright category. And again, there seems to be consensus among all software experts that some declaring code can be highly creative, or as Deputy Solicitor General Malcolm Stewart described at oral arguments:

 …the briefs talk about the practice of copying interfaces or APIs, but those terms are very vague and potentially expansive. And a lot of things that might be called interfaces would be segments of code that are so short that they don’t exhibit necessary creativity, segments of code that are necessary to preserve interoperability. It may be that in particular circumstances, particular interfaces can be copied without authorization, but that’s not a basis for a general rule.

In other words, broad statements about industry practice, no matter how many names sign an amicus brief, can obfuscate the salient details in this case, as well as countless other scenarios in the software universe where reimplementation is ably supported by licensing agreements. This begs one of the real questions at issue, which is who benefits most from the bright-line rule the Court is being asked to make on the copyrightability of computer code—the independent software developer or the entrenched giant? While Google’s computer industry amici ask the Court to imagine how StartupXYZ benefits from copying GiantXYZ’s code, it also asks the Court to ignore the inverse scenario when GiantXYZ copies StartupXYZ’s code. It is easy to forget this when neither party in this lawsuit is a startup, but it is a question that should not be lost in a river of generalities.

Computer Scientist Brief Says Fair Use is Not Enough

Interestingly, the computer scientists’ brief asserts that a finding of fair use for Google would be of insufficient value to the software industry overall because this “would create uncertainty” in the trade. Naturally, a holding that declaring code is simply never protected is far more certain than a narrow finding of fair use in this one case, which would not preempt future litigation over copying the same kind of code. Thus, the computer scientists’ brief confirms that a finding of fair use would only help Google while asserting it would do little for the industry as a whole.

That’s just as well since finding fair use in Google v. Oracle would, I believe, be an error of law that would be holistically detrimental to creators in all industries. The fact that the defendant in this case happens to be directly responsible for evangelizing an extremely broad fair use doctrine, while reaping the financial benefits of widespread online infringement (e.g. on YouTube), is at least an aggravating factor, if not a dispositive one.

Returning to the questionable proposition that “uncopyrightable APIs” necessarily spawn competition and innovation, it is very hard to ignore the background narrative in which mass copyright infringement has been integral to Google’s acquisition of market share in various lines of business, thus producing the mother of all “network effects” such that parent company Alphabet—along with Facebook, Amazon, and Apple—is facing antitrust investigations in multiple countries. Simply put, words like competition are incompatible with Google’s conduct throughout the industry, and its monopolistic presence should at least color how the Court interprets the “standard practice” argument presented in this case.

If the Supreme Court can justly hold, as a matter of law, that the declaring code at issue is uncopyrightable under §102(b), then this is the only basis on which it should arrive at that finding. As for the broader implications for technological innovation, while it is certainly difficult to dismiss an august body of computer scientists, it is equally tough to reconcile the ways in which Android so dramatically belies their premise. Speaking as a consumer who feels pretty damned locked into very limited choices in mobile, I am simply not seeing the benefits of unlicensed reimplementation in this particular example.

*Though Microsoft is a player in mobile, it presently has a very small foothold.

Google v. Oracle XII : SCOTUS Should Not Remand on Fair Use Review

As mentioned in my last Google v. Oracle post, the Supreme Court devoted considerable attention during oral argument to addressing the standard applied by the Federal Circuit when it determined as a matter of law that Google’s copying of Oracle’s code was not fair use. Google maintains that the Federal Circuit failed to show proper deference to a jury decision, and I discussed the constitutional and historical aspects of this argument in an earlier post. Oracle’s response argues that the Federal Circuit performed essentially the same function on appeal that courts perform all the time at summary judgment, where the vast majority of fair use cases are decided.

The reason why so much fair use jurisprudence occurs at summary judgment is simply a practical reality of litigation. When a party moves for summary judgment—for instance, a defendant who presents a fair use defense to an infringement claim—the court must assume that the facts favor the non-moving party and then consider whether there is any genuine dispute as to a material fact and whether the moving party is entitled to judgment as a matter of law. Once a court rules as to whether (or not) a fair use defense will survive, that decision is so important to the legal positions of the two sides it is often the end of the case.

Google asserts that the Federal Circuit erred when it decided the fair use question. Indeed, several amici in support of Google argued that overturning the jury in this instance was a misstep under the rules of civil procedure and a violation of the Seventh Amendment. Counsel for Oracle, Joshua Rosenkranz, noted at oral argument that Google went so far as to assert that “only a jury can balance the [fair use] factors.” Assuming Oracle’s characterization of Google’s argument is accurate, Google is simply incorrect. Obviously, fair use is a matter that may be considered exclusively by the courts, since most of the time, it is. As the Federal Circuit opinion in this case states:

“The fair use question entails … a primarily legal exercise. It requires a court to assess the inferences to be drawn from the historical facts found in light of the legal standards outlined in the statute and relevant case law and to determine what conclusion those inferences dictate….the exercise of assessing whether a use is fair in one case will help guide resolution in all future cases.”

The Supreme Court may consider whether remanding to the Federal Circuit for review “under a more deferential standard [of review],” as Justice Gorsuch put it, would have a deleterious effect on future summary judgment proceedings. And I may be over-speculating here, but remand seems unlikely. If the Court finds that the Federal Circuit correctly applied its fair use analysis and solely weighed questions of law, then any lingering matters regarding deference—if they are found to exist at all—do not seem compelling enough to delay the Court from ruling on both the review standard and the fair use finding. After all, this case is already more than ten years old.

No Reasonable Jury…

According to Oracle, the Federal Circuit correctly applied the “no reasonable jury” standard in deciding fair use as a matter of law. Does this mean the jury was unreasonable? No. It means fair use, to put it in technical terms, is a pain in the butt. Professional creators struggle with it; attorneys struggle with it; and courts struggle with it. And the trickiest aspect of fair use is acquiring a sensitivity to the interdependence of the four factors, which, unsurprisingly, a jury is unlikely to possess.  

What the Federal Circuit determined was that the jury resolved disputes of historical fact in favor of the verdict (and this was reviewed with deference), but that the jury arrived at incorrect legal inferences drawn from those facts (and this was reviewed de novo). Thus, the appellate court found that, even deferring to the fact finding, Google’s copying was not fair use.

I suspect the Supreme Court will not find that the Federal Circuit applied the wrong standard, unless there is some arcane bit of civ pro flaw in the mix that eludes me and the litigants. The appellate court followed Ninth Circuit precedent (because that is where the parties would have filed had there not originally been a patent claim in the suit), and it seems to have very clearly articulated how it separated questions of fact from questions of law before proceeding with an in-depth fair use analysis. And the review considered the same questions of law judges consider on summary judgment, where fair use is so often decided. For these reasons, I imagine the Supreme Court will not remand but will instead rule on the fair use analysis itself and either agree or disagree with the Federal Circuit’s findings.  

Separating the Factual from the Legal in Fair Use

Under factor one (the purpose and character of the use), the Federal Circuit correctly separates the factual question of a use with a commercial purpose from the legal implication of a use with a commercial purpose. The opinion notes that Google’s commercial intent here is undisputed (how could it be when Android is worth billions?) and that the jury was instructed that commerciality generally weighs against fair use as a matter of law. The court then correctly identifies transformativeness as a legal question and spends nearly six pages explaining why Google’s use of the Java code superseded the purpose of Oracle’s original work and was, therefore, “not transformative as a matter of law.”

Under factor two (the nature of the work), the analysis is generally dominated by separating factual works, which are more often subject to fair use, from expressive works, which are less often subject to fair use. Acknowledging that computer code can be complicated because it is an expressive work of a highly functional nature, the Federal Circuit sensibly held that the jury could have decided that the functionality favored fair use under factor two, but that the factor itself did not weigh heavily overall. This opinion should be little surprise to Google and several of its amici, as they have made precisely the same argument in cases involving the use of expressive books and photographs.

The more that a single factor teeters on the centerline, the more determinative the other factors become. But to reiterate the broader point, there appears to be nothing novel about the Federal Circuit’s approach to separating the factual from the legal and opining solely on the legal under factor two.

Factor three (the amount and substantiality of the portion used) tricks a lot of people. A user might copy a fraction of a work and be justly found guilty of infringement because the third factor is a qualitative analysis that asks whether a user has copied the “heart” of the work. Alternatively, a user might copy a whole work and have the use fall within the fair use exception.  This is not to say that the fair use analysis is capricious—rather, this is one case where we really see the interdependence of the four factors.

Google argued that it only copied the bare minimum of what it needed to achieve its purpose, and it further adds that it used only a fraction of all Java code. But this ignores the Federal Circuit’s finding that the parties did not dispute that only 170 lines of code were necessary to “write in the Java language.” Thus, the appeals court found it significant that Google copied 11,330 more lines of code than it needed. Further, the Federal Circuit opined that “no reasonable jury could conclude what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.”

Related to this consideration, note that although the word “purpose” is not stated in the third factor, Google’s defense and the Federal Circuit’s reference to how much code Google “needed to” copy demonstrates how the third prong consideration is influenced by the first factor finding. Purpose is highly determinative of fair use.  For example, in Campbell v. Acuff-Rose, the Supreme Court made clear that 2 Live Crew’s intent to parody “Oh, Pretty Woman” allowed a very liberal taking of the “heart” of the original material.

Every user has a purpose, and juries can be tripped up when that purpose results in something new and significant like a mobile operating system that attains Android’s market share. But it is important not to be distracted by the fact that Android is a big deal because this market reality does not tell us whether Google made a transformative use of Oracle’s code as a matter of law. And if transformativeness does not exist under factor one, then copying what may seem like a small portion of a work is more likely to tilt away from a finding of fair use under factor three. Ultimately, the Federal Circuit found that the third factor was either a tie or weighed against fair use.

Under the fourth factor (effect on the actual or potential market for the original work), if factor one weighs against fair use—especially with a commercial use—then odds are that the effect upon the potential market for the original author will be considered harmful. Further, under the fourth prong, the courts assume that upon a finding of fair use that the use in question will be repeated by other users. Thus, courts take an expansive view of “potential” market harm in the factor four analysis.

Here, the Federal Circuit held that the jury drew incorrect inferences about potential market harm and held that no reasonable jury could have imagined that no actual or potential market harm would fall upon Oracle’s protected work. It rejected Google’s arguments that Oracle 1) is not a device maker; and 2) had not yet built its own smartphone platform. To the untrained juror, these two points seek to emphasize Google as innovator using a work to exploit a market the original author never intended to enter, but the appellate court rightly observes that these facts are irrelevant as a matter of law under factor four.  

The problem with Google’s arguments here is that they both clearly ignore that a copyright owner has a right to the potential market for lawful derivative works. One does not say to an illustrator that because she has never been a comic book producer, she is denied the exclusive right to license her imagery for a graphic novel. One also does not say to the sculptor that if another party makes tea cozies out of her designs, she’s out of luck because she did not think of doing so first. These would be errors of law, both with regard to fair use factor four and Section 106(2) of the Copyright Act, which provides the exclusive right to prepare derivative works.

So, based on my rereading of the Federal Circuit fair use opinion, it appears to have properly and extensively separated the factual and legal considerations in Google v. Oracle, considered the legal questions de novo, and correctly found as a matter of law that under the historical facts, no reasonable jury could have found fair use. I will be very surprised if the Supreme Court does not agree with the appellate court’s analysis and, therefore, even more surprised if they find any complaint about the standard of review compelling enough to remand.

Google v. Oracle XI: Going In Circles at Oral Arguments

On October 7, the Supreme Court finally heard oral arguments in the decade-long copyright software slugfest Google v. Oracle. Thomas Goldstein represented Google, Joshua Rosenkranz represented Oracle, and Deputy Solicitor General Malcom Stewart represented the United States as amicus curiae in support of Oracle. The major arguments discussed were the following: 

  1. whether the Java declaring code Google copied into the Android OS is unprotectable under the limitation in copyright called the merger doctrine;
  2. whether the Federal Circuit applied the correct standard when it reviewed the case de novo and overturned a fair use finding by a jury; and
  3. whether Google’s use was a fair use, particularly whether it was transformative; and
  4. whether the Court’s decision for either party would risk upending the American software industry.

While it is folly—let me underscore, folly—to make predictions based on the questions justices ask during oral arguments, I will presume to make a few comments and some soft predictions. First, I believe the Court will have a hard time accepting Google’s merger argument and may even find unanimously for Oracle on that question.

Second, the Court may remand to the Court of Appeals on the standard of review question, but if so, it will have to address the question raised about what effect a decision could have on the practice to resolve fair use issues on summary judgment. Alternatively, the Court may hold that the Federal Circuit did not err with regard to civil procedure and will then comment solely on the appeals court’s holding that, as a matter of law, Google’s use was not a fair use.

Third, with regard to the fair use defense itself, the Court did not devote much attention to the question of transformativeness, upon which Google’s claim rests. So, good luck reading those tea leaves. And, fourth, by contrast, the justices did direct more questions toward Google’s claim that a finding for Oracle would cause “the sky to fall” upon the software industry. And while that claim may—may—concern the Court, readers should not confuse this argument with the fourth fair use factor, which asks whether market harm is done, or will be done, to a plaintiff in a case, not whether a finding against fair use conflicts with widespread to market practices overall.

Part of what makes this case historic is that Google, the darling of the contemporary tech world, has effectively asked the Court to upend copyright law in order to (allegedly) avoid upending the software industry. If that is a fair summary, then the Court’s path should be clear. If the legal arguments presented by Google are untenable and might, therefore, weaken copyright for every author under in its protection, the Court cannot accept Google’s claims on the merits. Further, Google’s broad appeal to avoid industry disruption (unless of course Google is doing the disrupting) is at odds with its own claim that the works it copied are not copyrightable.  

Copyrightability & the Merger Argument

On the matter of copyrightability of the Java declaring code, Google conceded to Justice Gorsuch that it would focus its argument on the merger doctrine, pulling back from its earlier arguments that the declaring code constitutes an unprotectable “method of operation” under the statute. The merger doctrine denies copyright protection to works when there is only one way, or very few ways, to express an idea. In such instances, the expression and the idea (or in computer code, the function) are said to be merged.

As addressed in this post, one disconcerting aspect of Google’s appeal to merger is that it is based on its claim that it “had to” copy the Java code at issue. That need, however, appears to be a business decision to attract Java programmers to develop apps for Android, rather than a genuine limit of coding options available at the time the copying occurred. 

As such there is no distinction between Google’s merger argument and the claim that someone “had to” copy any other protected work. A different creator might argue that he “has to” copy a lot of Star Wars material in order to make a new work that appeals to Star Wars fans, but this business goal (need) does not void the protection of the works he wants to use. This is as basic as copyright gets.

The justices homed in on this aspect of Google’s appeal to merger, using the word circular more than once to probe Mr. Goldstein on the question; and several justices voiced their concern that if merger is misapplied upon the condition of a use, rather than as a limitation at the moment of authorship, the result is tantamount to penalizing a work for its own success. This is another potentially hazardous aspect of Google’s merger argument for all creators:  it implies that once a work is highly popular, it is practically, if not entirely, in the public domain. Though many copyright critics would love to go there, the Court knows this is not the law.

Having said that, several of the justices, most notably Justice Breyer, did challenge Mr. Rosenkranz with what Terrica Carrington at Copyright Alliance calls some “less-than-stellar” analogies. Justice Breyer referred a few times to the QWERTY keyboard as a comparison to the Java declaring code, Justice Roberts referred to the standard arrangement of a restaurant menu, and Justice Kagan described a hypothetically ingenious way to arrange products in a grocery store.  

Of course, none of these examples is properly a subject of copyright because none entails a modicum of creative expression fixed in a tangible medium. Even if we imagine viewing each of these arrangements of non-protectable elements—the alphabet, restaurant dishes, or grocery items—for the very first time, it would be very hard to identify creative expression that transcends mere utility. By contrast, Google has already conceded that the code at issue is expressive, and this is supported by expert amici, who tell us that there can be tremendous creativity in the kind of code Google copied. Perhaps the justices here reflect what I mentioned in an earlier post—that analogies can be very hard to draw to computer code because code is illegible to most humans and inherently functional, neither of which is true of other works protected by copyright.

But just because the Court raised imperfect analogies attempting to divine the nature of code, this does not mean that Google’s merger claim gained much purchase on the bench. Once we separate all the rough analogies, the Court is still left with one question:  whether Google could have chosen to author its own declaring code and sequence, structure, and organization to achieve its purpose of developing a popular mobile OS. And the answer to that is yes.

Indeed, the availability of alternative expression is the focus of the merger inquiry in the 1979 report to Congress written by the National Commission on New Technological Uses of Copyrighted Works (CONTU), which established the conceptual foundations for copyright protection over computer code. As a result, if Google could have written its own expression to achieve the same result, the Copyright Act provides that the Java declaring code is not merged. In the brief submitted by Professor Arthur Miller, former member of CONTU, he writes:

“CONTU described how it envisioned the ‘idea-expression identity’ exception’ would operate in the software context:  when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to an infringement.’ But ‘[w]hen other language is available, programmers are free to read copyrighted programs and use the ideas embodied in them in preparing their own works.’ In so saying, CONTU found that ‘[t]he availability of alternative noninfringing language is the rule rather than the exception.”

Google appeals to a different authority: the purportedly established practice of the tech industry to freely copy APIs.  Google’s broad claim that “everyone in the software industry knows APIs are not protected” attempts to serve both as evidence to support its merger argument and as an implied warning to the Court that a finding in favor of Oracle will overturn decades of tech industry practice and, therefore, stifle innovation. But the “everyone knows” argument contains a few significant flaws.

First, as Mr. Rosenkranz stated, many other commercial users have paid to license Java, including licensing only the declaring code. This practice belies the allegation that “everyone knows” these works are not protectable. In fact, prior to the time Google copied the Java declaring code, it had been negotiating a license with Oracle and only chose to reject that agreement because of Java’s interoperability requirements—not because the works at issue were so obviously not subject to protection.

Next, and perhaps most importantly, Google’s “everybody knows” argument is circular reasoning with respect to the merger argument. Justice Thomas correctly asked whether merger applies at the moment of authorship or at the moment of an alleged infringement, and Mr. Goldstein answered that it is the latter. But aside from the fact that this is not the correct standard under §102(b), Google is deceptively asking the Court to hold that merger applies in both instances. Or perhaps more pointedly, Google wants merger to apply at the time that is most convenient to the alleged infringer.

Because if indeed “everybody knows” that API packages have never been copyrightable, then Google is asserting that merger applied the day Sun authored the code in 1995. Either Google is saying that the universal practice of “reimplementation” does not date back to the 1990s, or it is playing shell game with the merger doctrine. Hence, the reason the merger claim sounds circular is because it is. It is an argument of convenience, not law.

It Will Probably Come Down to Fair Use, But…

The justices did not focus a lot of attention on Google’s fair use defense itself, instead emphasizing whether the Federal Circuit applied the correct standard of review to the 2016 jury verdict. As discussed at length in this post, the simple explanation is that the Federal Circuit applied the correct standard of review if it assumed the facts weighed in favor of Google but that the jury below made errors of law in the fair use analysis.

Whether the Court will remand for another review is difficult to predict, especially given that it involves esoteric questions of civil procedure. However, the discussion about the standard of review did raise an interesting topic as to the potential effect on summary judgment practice. And because summary judgment is where most fair use defenses live or die, this seems like a topic worthy of its own post.

If the Court does remand, this will likely imply a finding that Oracle’s code is copyrightable and not merged. Otherwise, a fair use analysis is an absurdity because one cannot make a fair use of a work unprotected by copyright. But if I had to guess, I think this monster of a case probably will come down to the fair use question because the Court appeared to be unable to find a hook under statute or caselaw that the code at issue is subject to merger. If that’s the way it breaks, many will say “the Court just doesn’t understand the coding world.” Or, as Mr. Goldstein put it…

“Why would Congress want a rule that says: ‘okay, these developers are extremely familiar with these commands. They’re used to write creative computer programs. Let’s just make it as inefficient as possible for them? The only upshot of Oracle’s rule that it wants you to adopt is to make computer programming incredibly inefficient so that we have fewer creative computer programs.”

But stepping away from the nuanced legal questions for a moment, a reasonable prediction on the industry effect of this case militates against Google’s allegations and its all-too familiar attempt to stand in the shoes of small and independent producers. Google is the 900lb gorilla in just about any dispute, and there is at least as much risk (if not more) that a finding on its behalf will lead to the simplest result that when the biggest kid in the sandbox wants to take something, he will. Imagine the software developer who does not have Oracle’s resources trying to survive just to the appellate phase of this epic battle. More likely, they would tap out early and settle, but how would this outcome serve innovation better than the opposite scenario in which even the biggest gorillas are required to license protected works?

As such, the broadest market-based considerations return us to the same bugaboo:  the fact that hundreds of other commercial users licensed Java code and, presumably, added their contributions to the world of computing. So, if Google ultimately gets a pass just because it is big enough to infringe as-needed and litigate indefinitely, that hardly seems like justice or the best possible outcome for future creators.