Oracle files an opposition in its final (?) duel with Google

Oracle has filed a brief in opposition  to  Google’s petition for a writ of certiorari, asking Supreme Court of the United States (SCOTUS) to review the issue of the  copyrightability of  Java APIs copyrightability and the application of the fair use  defence. IPKat has previously written here that a plethora of tech industry, computer science and intellectual property scholars have sided with Google.

Copyrightability

In its filing, Oracle contends that the copyrightability question was already rejected by SCOTUS in 2015. In effect, Google now seeks review of the same question, making the same arguments, but without identifying any change of circumstances: “The question has not recurred. Nor has software development suffered the devastating impact Google predicted; the industry is doing better than ever.”

 With respect to the copyrightability issue, Oracle argues as follows:

(i) Contrary to Google’s contention that the courts are “deeply divided” over the copyrightability of the specific sorts of computer programs and, in particular, how 17 U.S.C. §102(b) interacts with §102(b) with regards to computer code, the law is rather settled. There is no split between the circuits on this issue, as is evident in the cases presented by Google (Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995) and Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004)).

(ii) Oracle’s code was not “preordained”. Oracle had “unlimited options as to the selection and arrangement of” the code and structure that Google copied. Thus,  the  Court of Appeals was right in declining to apply the  merger doctrine and Google has not shown any reason to support  a contrary result.

(iii) “there is a fatal vehicle defect”:  Google restricts copyrightability question exclusively to the lines of declaring code, whereas Court of Appeal found that both the lines of declaring code and the structure and organisation were copyright-protected and infringed.

Fair Use

Regarding the second prong of Google’s petition – reassessment of the four-factor fair use test- – Oracle characterises Google’s actions as “the epitome of copyright infringement”. As such, its arguments as to the misapplication by the Court of Appel of the fair use doctrine is a “naked plea for fact-bound error correction, which is no basis for this Court’s review.”

Oracle reiterates recognised elements of a fair use defence: refusal of a licence and commercial, non-transformative copying of the most recognizable portions of the work into a competing creation for the express purpose of capturing original author’s market (current/potential) share. “Software exceptionalism” does not attract any special fair use regime and judicial analysis should be the same for all works “from the most functional manual to the most creative novel”.

Oracle devotes particular attention to countering Google’s transformative use argument, based on the premise that Android transformed Oracle’s work because the Java platform was designed for personal computers and laptops, whereas Google adapted it for mobile devices. First, Goggle did not introduce a new context for the use of the Java APIs, as they were in the smartphone space before Android entered the market. Second, the code was used by Google for the same purpose as intended by the original creator — “to enable programmers to remember, locate, and run prepackaged programs”.

Calling it “utterly hypocritical”, Oracle rejects the argument made by the petitioner and its amici curiae to consider the copyright implications of interoperability. Google has conceded that it deliberately made its platform incompatible with that of Oracle, meaning that Android apps run only on Android devices and Java apps do not run on Android devices.

This Kat is making a policy argument

Another policy assertion made by Google, suggesting that the Court of Appeal's opinion has had a “devastating impact on the development of computer software”, is meritless, according to Oracle. There is no evidence that programmers have abandoned their traditional building-block approach to software development, ceased to develop interoperable products, or copyright litigation has increased due to confusion about whether and when their longstanding practices constitute copyright infringement. Google’s “sky-is-falling rhetoric” is exaggerated in multiple ways, such as by misstating settled law, practice, and the scope of the effect at stake by virtue of the Court of Appeal's opinion. In response to Google’s fostering of innovation argument, Oracle states the complete opposite:

“The Founders, Congress, and this Court determined that 'the best way to advance public welfare' is to 'encourage[]' authors to engage in exactly the sort of 'individual effort' Oracle undertook, by rewarding their efforts with “personal gain.” Mazer, 347 U.S. at 219. Oracle would never have 'invested as heavily in Java' if it knew its 'investment … would not receive copyright protection'.”

IPKat reminds Kat readers that Google copied 11,500 lines of Oracle’s original computer source code (declaring code), as well as the structure, sequence and organization of 37 large API packages into its Android software platform. The Court of Appeal has given two decisions in this dispute, both in favour of Oracle. In 2015, Google asked SCOTUS to weigh in on API copyrightability, but a writ of certiorari was declined. This is Google’s last resort before $8.8bn in damages are due.

Image credits: tobstarflickr