High Court Meets Google, Oracle With Skepticism in Programming Case

The Supreme Court met arguments from Google and Oracle with skepticism Wednesday in a case that could decide whether programming code is copyrightable (see 2008070054). Oracle sued Google for its use of Java programming code. Google has a right to provide a “certain functionality to make a computer do something” under Section 102(b) of the Copyright Act, argued Google attorney Thomas Goldstein. If there were alternatives, that would be “another matter,” he said, but because there’s only one way, there’s no copyright protection.

Cracking a safe may be the only way to access money, but “that doesn’t mean you can do it,” said Chief Justice John Roberts, suggesting the alternative is to get a license. Goldstein suggested a company could get a patent on the safe to keep others out, but if it writes a book on how to crack safes, that doesn’t “give you the exclusive right to do it.” Roberts questioned whether a company can “copy the lock on the safe” and use it.

Justice Stephen Breyer questioned whether Google has only one way to replicate the function: “If you spend enough time and you had the most brilliant computer programmers,” couldn’t the company do it, though it might be expensive, he asked. That would make computer programming “incredibly inefficient” and reduce the number of creative computer programs, Goldstein said.

Apple spent billions to declare the same function without copying the code, Justice Sonia Sotomayor noted: “Presumably you could have done the same.” She asked Goldstein if other companies should be allowed to copy Google’s packages and platforms. “They can copy any part of our code,” said Goldstein: Interoperability frequently means newer software supplants older software. The functionality is taken and improved upon, he said.

Justice Elena Kagan asked why a grocery store couldn’t legally copy a successful organizational method from a competing grocery store. Roberts used a similar analogy of a restaurant, asking Oracle attorney Joshua Rosenkranz why competing restaurants shouldn’t be legally able to replicate menu items found on a successful rival’s menu. A menu includes standard dishes and descriptions, Rosenkranz responded. Oracle filled in the blanks 30,000 times over with unique descriptions for its code, he said. Similarly, someone couldn’t write a book copying the best 10,000 lines from Seinfeld, he said.

Someone could argue that a football team shouldn’t be able to sign free agent players and also gain access to the playbook they used previously, suggested Justice Clarence Thomas: “My concern was having to turn over the playbook,” he said, also raising fair use concerns. Thomas asked why Google's actions weren't transformative, which would constitute fair use. Google didn’t study the code and use it to transform it into a new creation, said Rosenkranz: You can’t copy a short story and make it into a movie and consider that transformative.

Breyer suggested if the court sides with Oracle, it could set a harmful precedent for all kinds of technology. For instance, he said, the creator of the QWERTY keyboard shouldn’t have a monopoly over that function. “It’s really tough to go backwards” with the QWERTY keyboard, “and very bad consequences will flow if you don’t see that distinction,” he said.

QWERTY isn’t a sufficiently creative method for copyright, argued Deputy Solicitor General Malcolm Stewart in favor of Oracle. And it’s undisputed Google could have written new declarations instead of copying Oracle’s code. Sotomayor asked why it wasn’t considered transformative that Google moved the Java code from a PC to function on cellphones. Stewart said it wouldn’t be considered transformative to copy a movie showing in theaters and stream it online.

Various circuit courts have found computer codes aren’t analogous to other methods of expression, Sotomayor said: Application programming interface isn’t copyrightable. Industries have been built on that understanding, she added: “Please explain to me why we should now upend what the industry has viewed as a copyrightable element.” You can’t copyright vast amounts of code and use it for the same purpose, Rosenkranz argued. Corporate entities pay a lot of money to use Oracle’s declaring code, and Google doesn’t deserve a pass, he said.

Justice Neil Gorsuch asked what the high court should do about Apple and Microsoft making phones that function fine without copying Oracle’s code. He noted Kagan came to a similar question, asking if Oracle has simply come up with the most elegant solution for programming in this situation and is riding on its own innovation. Apple and Microsoft use different code languages, said Goldstein. Regardless, Congress granted exclusive rights to the words on the page, not to what the computer does, said Goldstein: You can’t copyright a function.

Justice Samuel Alito raised concerns that by ruling in favor of Google, it might put all computer code at risk of losing protection. Google’s argument is limited to circumstances in which the function, or computer activity, is disclosed, Goldstein said: Companies have a right to replicate certain functions and use Java commands.

Justice Brett Kavanaugh questioned Goldstein’s arguments, saying someone can’t copy a song just because it’s the only way to “express that song.” He asked why that principle isn’t at play. Google isn’t copying the declarations because it likes the declarations, said Goldstein: It has to use the declarations because it’s responding to demands from other people. Encouraging this type of copying would decimate business models and undermine copyright incentives, argued Rosenkranz.