“The burden is on the Supreme Court to uphold the fundamental Constitutional right to intellectual property protection.”
In what many regard as the intellectual property case of the century, the United States Supreme Court has—on October 7, 2020—presided over oral arguments in Google v. Oracle. The decade-long dispute between two of Silicon Valley’s behemoths centers on Google’s unauthorized use of 11,500 lines from Oracle’s Java APIs (Application Programming Interfaces) declaring code in its Android operating system. Given the global ubiquity of smartphones, roughly three-quarters of which use the Android operating system, the financial stakes have never been higher.
As we await the outcome of the October 7 proceedings, there are important questions to contemplate, including the uncertain impact of Justice Amy Coney Barrett’s confirmation to the Supreme Court. In particular, can the attorneys for Google convincingly argue that the unauthorized use of the JAVA APIs’ declaring code is justified? It may be justifiable if these particular API packages are not copyrightable. On the other hand, if Google accepts Oracle’s claim of copyright protection, can Google then assert a fair use defense for its use of 11,500 lines of declaring code?
As previously reported by IPWatchdog, the U.S. Court of Appeals for the Federal Circuit decided that JAVA API packages are copyright protected, including its declaring code, structure, sequence, and organization. According to the Federal Circuit Court, Google’s copying of Java API script from the desktop computer platform to the mobile phone platform is not a transformative use. Moreover, “unrestricted and widespread conduct of the sort engaged in by [Google],” the Court observed, can result in “a substantially adverse impact on the potential market for the original.” Thus, the Federal Circuit soundly rejected Google’s fair use defense, overturning an earlier jury trial verdict.
During the October 7 Supreme Court proceedings, attorneys for Google argued that the JAVA APIs’ declaring code was so “functional” that it was not copyrightable; copyright protects only the “expression” of the author and not the author’s “ideas.” This contradicts the Federal Circuit’s finding that the Java API script in the Android Operating System “is the same as the purpose of the packages in the Java platform,” and further that “Google made no alteration to the expressive content or message of the copyrighted material.”
For Google’s attorneys, questions remain as to why Google did not license the JAVA API packages or create its own declaring code. Chief Justice John Roberts remarked: “the only reason that there’s only one way to do it is because Sun and Oracle’s product expression was very successful … cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it. I mean, if it’s the only way, the way for you to get it is to get a license.”
Yet, Google did have alternatives to unauthorized use. Justice Neil Gorsuch observed: “Others have managed to innovate their way around it.” Apple and Microsoft, he said, have “been able to come up with phones that work just fine without engaging in this kind of copying [of Java].” Indeed, Microsoft and Apple created their mobile operating systems without using or buying Java licenses.
Oracle Wins the QWERTY Keyboard Analogy
Following this reasoning, the JAVA API packages’ copyright protection is unambiguous. Justice Stephen Breyer, however, questioned: “You didn’t have to have a QWERTY keyboard on typewriters in the beginning. But my God, if you let somebody have a copyright on that now, they would control all typewriters, which really has nothing to do with copyright.”
In fact, the QWERTY layout, which was part of the first typewriter design, did have patent protection—American inventor Christopher Latham Sholes developed and patented both in 1867. Sholes later sold his patent rights to Remington. After correcting a few design glitches in the manufacturing process for the benefit of touch-typists, the first typewriter was launched and sold by Remington in 1874. The patent protection arguably played a role in the Remington typewriter’s commercial success and QWERTY layout’s eventual global ubiquity.
Though some industry analysts may argue that the QWERTY layout is merely an idea and not an expression (thus not copyrightable), the JAVA API package is indeed an expression. An amicus brief authored by several computer science professors compared APIs to blueprints to show that there can be immense variability in how different architects construct the same structure. In other words, no two APIs would be built in precisely the same way, even if their objectives were the same. It would naturally follow that APIs are indeed copyrightable.
Google Safeguards Its Own APIs
Oracle’s standard-setting design of the JAVA API was intended for widespread acceptance. Oracle offered the API scripts for free to app developers while charging a license fee to hardware manufacturers and competing platform developers. This, according to Justice Roberts, is Oracle’s prerogative as the copyright owner. By this logic, widespread use of a product or service should not preclude its copyrightability.
Google leverages this same business model with its own proprietary API. Notably, Google has increasingly transitioned its important APIs to the paid Google Mobile Phone Service subscription. Some industry experts argue that this is a tactic for bolstering Google’s bargaining power with competing service providers on Android devices, such as Amazon. Under Google’s Terms of Service Agreement for blogs and websites that are hosted on its YouTube platform: “The sale of advertising, sponsorships, or promotions targeted to, within, or on the API Client or YouTube video content” is prohibited unless expressly permitted by YouTube. If the Google attorneys’ rationale in the October 7 proceeding is applied here, then: 1) YouTube should not charge licensing fees for the use of Google’s APIs by service providers and 2) YouTube’s widespread use would preclude the copyrightabilty of Google’s own APIs.
Clear Guidance Will Benefit the Future of IP
The burden is on the Supreme Court to uphold the fundamental Constitutional right to intellectual property protection. Mindful of the confusion created by open internet forums, widespread industry abuse and casual theft of intellectual property, the Supreme Court’s clear guidance on intellectual property enforcement will inure to the benefit of future industry litigants and concerned members of the legislature.