Battle of the Innovation Arguments: Google and Oracle Fight to Save Society
On October 7, 2020, two big names in tech, Google and Oracle, made their cases before eight Supreme Court Justices. The main questions facing the Court were “what elements of computer code can be copyrighted, and if that code is covered by copyright, when it’s still legal to use pieces of it under fair use.”[1] Interestingly, both Google’s and Oracle’s counsel claimed that finding for the opposing side would gravely harm innovation in computer programming and upend the software industry.[2]
Initially, Oracle brought suit over Google’s copying of Oracle’s Java application programming interface (“API”) packages to build Google’s Android platform.[3] Oracle’s counsel argued that Google infringed on its copyright by using the Java APIs to build the Android app.[4] Oracle’s counsel relied on a general fair use argument, stating that if the Court found for Google and allowed companies to copy particular API code, the business models of many software companies would crumble and innovation would suffer.[5]
However, the use of open source code, and the use of API packages in particular, is common within the software industry.[6] Oracle itself previously used an Amazon API so that Amazon users could easily transfer over to Oracle’s cloud platform.[7] Even though Oracle itself engaged in similar conduct to Google’s conduct at issue here, Oracle denies that APIs are any different from other software programs.[8] Oracle’s counsel posed that if APIs are stripped of copyright protection, the floodgates will open, and other software programs will be stripped of their copyright protections as well.[9]
Alternatively, Google’s counsel maintained that Oracle’s Java APIs are not copyrightable, and even if they were, the fair use doctrine applies as it is best for other software companies and the public if use is freely allowed.[10] Google’s counsel argued that APIs are more akin to a basic programming tool used for efficiency rather than a creative original work which Google was exploiting.[11]
Google’s counsel aimed to provide an explanation as to why API code is importantly different than any other computer software, but did not convey this difference successfully to all of the justices.[12] Google’s counsel repeated multiple times in his argument that, because Oracle’s Java API extends to the operational function of the program and is the only way to operate the program, under the merger doctrine it is uncopyrightable.[13] However, several justices, including Justice Kavanaugh, pushed back on this line of reasoning, stating bluntly that “[y]ou’re not allowed to copy a song just because it’s the only way to copy a song[.]”[14]
Justice Breyer took a more sympathetic view of Google’s argument, comparing the API package to the QWERTY keyboard.[15] Justice Breyer explained that at the time of the invention of QWERTY keyboards, not every typewriter had to have them, but now the keyboards have been universally adopted, for a particular company to claim copyright over the QWERTY keyboard now would result in unfounded control.[16] Similarly here, the industry standard allows the free and open use of software. Thus, to allow a company such as Oracle to create their own API and then limit the use of it in the software industry changes the very foundation of the industry.[17]
Even given the software industry standard, the justices still questioned why Google could not write its own code as other software companies had done.[18] In answering, Google’s counsel focused on the efficiency of computer programming, stating that programmers implementing these API packages were not prisoners to using this software only for the benefit of Oracle.[19]
Overall, it is difficult to discern simply based on an oral argument which side the Supreme Court will find for. The ultimate concern of the justices was that finding for Google would dissolve protection for any computer program under Section 102(b) of The Copyright Act.[20] However, a number of courts of appeals have ruled that software interfaces cannot be copyrighted, and the industry, including Google, has operated according to those decisions.[21] Further, finding for Oracle could give companies who create APIs the authority to prevent competitors from building new software that utilizes them. This result may also have the effect of stalling innovation.
Footnotes
