Deliberating on the main arguments in recent sets of briefs
filed in support of Google’s U.S. Supreme Court petition.
Fifteen amicus curiae (friend of the
court) briefs were filed in February 2019
in support of Google’s Supreme Court
petition. This column discusses the
main arguments developed in three
sets of these briefs: one filed on behalf
of 78 computer scientists, two filed by
software companies, and one filed by 65
intellectual property (IP) scholars.
Each brief sought to provide a
unique perspective that would help the
Supreme Court understand the negative implications for the software industry if the Court does not overturn
the CAFC’s copyrightability and/or fair
use rulings. After Oracle files its opposition brief, the Supreme Court will decide whether to grant Google’s petition.
The Computer Scientists’
Among the 78 computer scientists who
joined this brief were 12 ACM Turing
Award recipients, 24 ACM Fellows, 11
IEEE Fellows, 14 American Academy
of Arts and Sciences Fellows, six National Academy of Sciences Members,
24 National Academy of Engineering
Members, and five National Medal of
ARE APPLICATION PROGRAM interfaces (APIs) “original expression” that copyright law protects from unau- thorized implementations
in computer program code? Or are they
too functional to be within the scope of
protection that copyright law provides
to computer programs? Alternatively,
should it be fair use for unauthorized
persons to reimplement APIs in independently written code?
Between 1992 and 2014, federal appellate courts in the U.S. were generally
in agreement that interfaces necessary
to achieving compatibility among programs were unprotectable by copyright
law. These rulings made it unnecessary
for courts to address fair use defenses
for reuses of APIs.
In a 2014 decision, the Court of Ap-
peals for the Federal Circuit (CAFC)
overturned a trial court ruling that the
Java API declarations that Google used
for its Android platform were not pro-
tectable by copyright law. The CAFC
ruled that these declarations were in-
deed original expressions that copy-
right should and did protect because
they were creative and there was more
than one way to name particular Java
command terms (for example, Arith.
larger instead of Math.max).
In its 2014 decision, the CAFC did not
decide that Google’s use of the Java API
declarations in Android necessarily in-
fringed. Because Google had raised a fair
use defense to Oracle’s claim of infringe-
ment, the CAFC sent the case back to the
lower court for a trial on that defense.
After a two-week jury trial in 2016,
Google’s fair use defense prevailed.
However, Oracle once again appealed
to the CAFC, arguing that no reasonable jury could have found Google’s use
of the Java declarations to be fair and
non-infringing. The CAFC agreed and
remanded the case to the lower court to
consider Oracle’s damage claims.
To forestall a damages trial, Google
has asked the U.S. Supreme Court to review both the CAFC’s copyrightability and
fair use rulings. This is not its first such request. Google previously sought Supreme
Court review of the CAFC’s copyrightability ruling, but the Court decided against
hearing this appeal, perhaps because the
fair use issue had yet to be considered.