The Final Showdown: The Current Status of Google v. Oracle

For many, 2020 brought more surprises and tumultuous moments than they could have imagined. For the copyright world and the software industry, however, the thought of 2021 may be even more nerve-racking. Oracle v. Google (now titled Google v. Oracle), arguably the most contentious copyright case of the past decade, was finally argued before the Supreme Court in early October, 2020, with a decision expected in the summer of 2021.¹ Oracle’s infringement claim stemmed from Google’s creation of the Android operating system that utilized 37 packages of Oracle’s Java application programming interface (API).² These API packages, “allow programmers to use the prewritten code to build certain functions into their own programs rather than write their own code to perform those functions from scratch.”³ Since the suit’s beginning, questions regarding the copyrightability of these API packages and whether Google’s copying was fair use served as the main battlefields for the parties.⁴

In the initial trial, Oracle–which had obtained ownership of the APIs through acquisition of the former owner, Sun Microsystems–argued that Google had infringed Oracle’s copyright by copying the “structure, sequence and organization” of 37 Java API packages without obtaining a requisite license.⁵ The district court judge issued a directed verdict in favor of Google, reasoning that Oracle’s APIs were not copyrightable under the merger doctrine.⁶ Under the merger doctrine, when there is only one (or only a few) ways of expression to achieve a certain function, no one can claim exclusive copyright ownership of such expression.[7. Id.]

From there, the case ping-ponged between the trial and appellate courts.⁷ The Federal Circuit on the first appeal held that the merger doctrine did not, in fact, apply because abundant other ways of selecting and arranging the 7,000 lines of code were available.[9. See Oracle Am, Inc. v. Google Inc., 750 F. 3d 1339, 1359-61 (Fed. Cir. 2014).] Accordingly, the Federal Circuit found that the structure, sequence, and organization of Oracle’s APIs were entitled to copyright protection, and the case was remanded to the district court to rule on Google’s fair use defense.⁸ On the case’s second go in the district court, the jury found in favor of Google, and Oracle promptly filed for appeal.⁹ The Federal Circuit once again ruled in favor of Oracle, holding that the transformative use and market harm factors of the fair use analysis weighed significantly against Google.¹⁰ The Federal Circuit found that Google’s use of the APIs in a new context––smartphones––did not by default make the use transformative.¹¹ Rather, the verbatim copying of the APIs aimed to achieve the same function and purpose, regardless of the change in platform format.¹² Besides, the court concluded that Google’s use of the APIs would adversely impact Oracle’s opportunities to grant licenses for developing derivatives, which materially impaired the marketability of Oracle’s work.¹³

On October 7, 2020, the Supreme Court finally heard oral arguments over teleconference.¹⁴ During oral argument, Google first relied on the arguments of uncopyrightability under 17 U.S.C. § 102(b) as a method of operation and the merger doctrine.¹⁵ These arguments were challenged by many of the Justices, including Chief Justice Roberts, who questioned whether the alleged lack of other ways to write the code had more to do with Java’s success simply making other available expressions less commercially viable.¹⁶

In response, Oracle focused on the market harm and transformative use factors of fair use, arguing that no court has upheld a finding of fair use when the defendant’s work “mean[t] the same thing and serve[d] the same purpose” as the original in a way that would supplant the original product in the market.¹⁷ Justices Gorsuch and Alito questioned whether the appellate court’s overturning of the jury verdict went against the appropriate standard of review, to which Oracle responded that the fair use analysis has often been determined by courts and is not necessarily a wholly-jury analysis.¹⁸ Oracle further argued that Google’s § 102 argument draws a false distinction between implementing code and declaring code, the latter of which was at issue; instead, Oracle insisted on a simpler understanding of declaring code as computer code that should be protected by § 101.[21.Id. at 44.]

The Court’s decision may potentially have major impacts on the technology industry’s ability to innovate. A win for Oracle, Google argues, would “make the creation of innovative computer programs less efficient,” which would impact the vast number of everyday people who use various Java-run applications.¹⁹ However, Oracle argues that a ruling for Google would disincentivize entities from creating code at risk of not being afforded protection from copying.²⁰

Many uncertainties remain as the shift towards a more digital society caused by the coronavirus pandemic foretells a heightened need for ease and efficiency in software development. Further, the post-oral-argument appointment of Justice Coney Barrett makes it likely that only eight Justices will opine on the case. Should a 4-4 split happen, the appellate court’s ruling in favor of Oracle will stand[24. See Richard Dahl, What Happens if the Supreme Court Issues a 4-4 Decision?, FindLaw (Sept. 29, 2020, 6:56 AM), https://blogs.findlaw.com/law_and_life/2020/09/what-happens-if-the-supreme-court-issues-a-4-4-decision.html.]– an outcome many in the industry fear.²¹ This dispute forces us to reckon with whether we want our copyright system to prioritize collaboration or labor, and what it means for one of our most important industries if our highest court chooses the wrong one.