Earlier this week, on October 7, 2020, the Supreme Court heard oral argument in Google LLC v. Oracle America, Inc., the long-running software copyright case. Due to the COVID-19 pandemic, this extended oral argument took place over the phone and lasted for over 90 minutes. The Court worked to great lengths to untangle the attorneys’ many vital arguments that have developed over the past decade. As we previewed the day before the argument, the issues, in this case, are the availability of copyright protection for software interfaces, in particular Oracle’s Java SE declarations, and Google’s copying of such code that it contends is fair use.
Thomas C. Goldstein argued for Google and Chief Justice Roberts was the first to ask questions. Chief Justice Roberts addressed Google’s merger doctrine argument and made clear his view that “the only reason that there’s one way to do it is because Sun and Oracle’s product expression was  very successful . . . [a]nd the fact that  programmers really liked it and that’s what everybody used, it seems a bit much to penalize them for that.” Chief Justice Roberts continued on to present Goldstein with a noteworthy analogy: “cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it.” Goldstein responded to this analogy by arguing that “if you write a book about how to . . . unlock the combination of a lock, that doesn’t give you the exclusive right to the lock. All it does is it shares the knowledge about how to crack safes or open locks” and “[w]hat copyright wants is for people to be able to use that knowledge.”
Justice Thomas then turned to the fair use issue, in particular the proper standard of review, and asked Goldstein how he would distinguish the case, Harper & Row. Goldstein argued that in Harper, “this Court said when there are established findings  the court, not the jury, is going to resolve fair use,” however the scenario here is the “opposite” since there are no subsidiary findings and there is a general jury verdict.
Justice Breyer and Justice Sotomayor both prompted more technical discussions and asked Goldstein to differentiate between declaring codes and the implementing codes. Goldstein asserted that it is actually Oracle who is attempting to make a distinction between the two types of code and Google, on the other hand, is arguing that “[t]he legal principle that you can reuse computer codes that can only be written one way applies to both declaring code and implementing code.” Later, Justice Kagan and Justice Gorsuch expressed their confusion as to this response by Goldstein, both saying that Goldstein seemed to be shifting away from one of his main arguments in his briefs—that declaring code is not copyrightable because it is a method of operation. Finding Goldstein’s explanation that Google has two alternative arguments unpersuasive, Justice Gorsuch interpreted Goldstein’s response to mean that he was “moving past, rather rapidly, the  primary argument in [his] brief that the code just simply isn’t copyrightable.”
Justice Gorsuch then moved on to the merger doctrine argument, asking what the Court is to do “about the  fact that the other competitors, Apple [and] Microsoft, . . . have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying?” Goldstein answered, by explaining that “Apple and Microsoft use different languages entirely” and that “[i]t’s like saying we can’t have merger in English because someone could write something in French.” Next, Justice Alito addressed his concern that “all computer code is at risk of losing protection under 102(b).” Goldstein responded by assuring Justice Alito that Google’s argument is “strictly limited “ to situations where a function can only be written one way.
The last questions for Goldstein came from Justice Kavanaugh, who returned to Google’s method of operation argument and asked Goldstein to address Oracle and the Solicitor General’s arguments that “declaring code is a method of operation only in the same sense that computer programs as a whole are methods of operation.” According to Goldstein, “declaring code does something very distinct in computer code” and it is “absolutely unlike any other code.” Justice Kavanaugh next pointed out that the Federal Circuit ruled in favor of Oracle in 2014 and that he’s “not aware that the sky has fallen in the last five or six years with that ruling on the books.” In response, Goldstein pushed the consequential policy rationale that “[i]nterfaces have been reused for decades [and] [i]t has always been the understanding that this, you know, purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way.”
E. Joshua Rosenkranz argued second for the respondent, Oracle. His first question came from Chief Justice Roberts, who asked “what choice did [Google] have without having to spend billions of dollars, which would be wasteful and impede the development of the high-tech business?” Rosenkranz responded by saying that spending billions of dollars creating a competing platform is “exactly what the Copyright Act requires”—“[t]he Copyright Act does not give Google a pass just because it would be expensive to recreate our expression.”
Justice Thomas then asked Rosenkranz to explain what “transformative use” would look like in the context of computer. Rosenkranz explained that in order for a use to be transformative, this Court has held that the use “must alter the original work’s expression, meaning, or message,” and here Google’s use was not transformative, but rather “the epitome of commercial superseding use.”
The next set of questions came from Justice Alito and Justice Gorsuch, who asked Rosenkranz to address the issue of the standard of review on fair use. Rosenkranz cited the Harper case, arguing that this Court has determined that the correct standard of review for fair use is de novo. He continued later on to raise the concern that under Google’s approach, a more deferential standard of review, “summary judgment would be nearly impossible because weighing would be a fact question for every jury.”
Later, Justice Sotomayor pointed out that there seems to be a long-standing understanding in the industry that implementing codes are copyrightable and declaring codes are not. Justice Sotomayor asked Rosenkranz to explain why the Court should change that understanding and Rosenkranz argued that that distinction, between implementing and declaring code, does not come from any lower court cases. And, according to Rosenkranz, “Google is just wrong that the success of the software industry depends on unlicensed copying. Major corporate entities were paying a lot of money just to license our declaring code. Google and its amici point to non-record examples that involved either no copying at all, licensed copying, or copying of elements that were so uncreative that no one would say they were protectable.”
Towards the end of Goldstein’s argument time, Justice Kagan presented an analogy that essentially asked: what makes methods of organization copyrightable? Rosenkranz answered simply that it is the “extraordinarily intricate” “relationships of the methods, classes, and packages” that warrant copyrightability.
Next, Malcolm S. Stewart, Deputy Solicitor General, argued on behalf of the United States in support of Oracle. Chief Justice Roberts began the discussions with the consequential concerns: If the Court agrees with Oracle, why it will not ruin the tech industry? Echoing Justice Kavanaugh’s earlier questions to Goldstein, Stewart responded by noting that the Federal Circuit issued its opinion in favor of Oracle in 2014 and “we have not seen deleterious effects from that” and arguing that “there’s prevalent practice of licensed copying of declarations.” Justice Alito later asked Stewart to revisit this question and Stewart added to his argument that, the fact that licenses over declarations are bargained for “tends to dispel the idea that there is a common understanding in the relevant community that this material is not copyrightable at all.”
Justice Thomas and Justice Gorsuch then asked to Stewart to address whether the government thinks the Federal Circuit applied the proper standard of review on fair use. Stewart answered yes and that the proper question to ask is “could a reasonable jury applying an accurate version of the law have found fair use?” He later explained, it is the government’s view that the primary error on behalf of the district court “was that it treated as a factual question what it should have treated as a subsidiary legal judgment; that is, on the question of transformativeness.” Justice Gorsuch pushed a bit further, asking, “[i]f we disagree with you on  the standard of review that should apply here, what should we do?” Stewart candidly responded by saying that if the Court disagrees, “then a remand probably is the  appropriate course.” He did, however, make it clear to the Court that such a ruling “is not only going to affect jury trial practice; it’s going to affect summary judgment practice because a lot of fair use questions are decided on summary judgment.”
Justice Breyer then turned Stewarts attention to Google’s argument that by giving someone ownership over declarations, and other similar organizational methods such as QWERTY keyboard, the Court would be giving them “monopoly power over [the] uses” of such methods. Stewart distinguished the QWERTY keyboard and other organizational methods by saying that, unlike declarations, “they have become standard” and “wouldn’t have been eligible for copyright protection in the first instance because . . . they are not sufficiently creative.” He continued on to argue that “when we talk about people who will have to learn new calls in order to invoke declarations we’re  not talking about consumers. . . . [w]e’re talking about app developers [a]nd these are economic actors.”
Justice Sotomayor next asked Stewart to explain why, in the government’s view, Google’s use was not transformative. Stewart confidently defended the government’s position, saying that the copied “code is performing exactly the same function that it performed on Java” and “[i]t’s the same content that [is] simply being used on a different platform.” Lastly, Justice Kavanaugh asked whether Stewart thought Google was wrong in saying that “the dispositive undisputed fact in this case is that the declarations could not be written in any other way and still properly respond to the calls used by Java programmers.” In response, Stewart contended, “I don’t think that they are wrong in saying that, but that argument is circular.” He clarified that Google is defining the relevant function in the merger analysis incorrectly—”as invoking the implementing code in response to calls that are known to developers”—and if that were to be accepted, “that would effectively penalize Oracle for its marketplace success.”
Following oral argument by the government, the Court insisted on another round of questioning for Goldstein to even out the time. Chief Justice Roberts began by asking Goldstein to respond to “Stewart’s representation about the effects of the case on the technology market if [the Court] rule[s] in favor of Oracle.” Goldstein openly answered that he does not think Stewart “is accurately reflecting how the industry operates” and the “briefs from the country’s leading computer scientists and the software industry that say that the non-licensed re-implementation of interfaces is widespread.” Chief Justice Roberts then asked Goldstein to, again, address the fact that other tech companies found a way to develop their programs without copying the Java code. Citing the computer scientists’ and Microsoft’s briefs, Goldstein reiterated that “Apple and Microsoft, Oracle’s examples, did re-implement prior interfaces” and that “[t]he reason that they didn’t use these interfaces is they were using a different language.”
Justice Sotomayor then asked Goldstein to simply present his best arguments as to transformative use and fair use. With respect to transformative use, according to Goldstein, “it cannot be that transformative use only exists when computer code does something different. Computer code only does one thing. There is no parity of computer code.” Goldstein then argued that Google’s best argument as to fair use is about the standard of review. So, he went on, “other cases has made quite clear this is incredibly fact-bound” and “[i]n that context, you cannot say that the jury couldn’t reasonably find that this massive creativity with a million applications and a new, entirely new way of computing on the smartphone is not fair use.”
Justice Kagan returned to the transformative use question, asking “whether the first part of the answer that [Goldstein] gave to Justice Sotomayor . . . suggests that transformative use isn’t the right question here, although it is in other contexts.” Goldstein firmly asserted that “[a]s articulated by Oracle, it is. Call it what you will. The statute doesn’t say transformative. It asks about the nature of the use. . . . The nature of the use here is quite significantly different from the original use. I think that’s the statutory question.”
To conclude this extra argument time, Justice Gorsuch asked Goldstein to address the concern regarding the potential for a negative impact on summary judgment practice. Attempting to ease the Court’s concern, Goldstein explained that this an “incredibly, highly contested” case that arose in a new environment and “[w]hen you have such a case, the fact that others are resolved on summary judgment, isn’t a license to just throw out the actual standard of review that applies.”
With 3 minutes remaining, Goldstein then switched to his rebuttal argument. Goldstein used this time to revisit the fair use jury verdict issue, asserting that
I do think that there was no traction to Mr. Rosenkranz and Mr. Stewart’s argument that the Federal Circuit had correctly applied the right standard of review. When, at page 24a of the petition appendix, they say the ultimate question of fair use will be decided fair –de novo, at page 53a they say, well, they will decide it as a matter of law and the same at page 54a. The Federal Circuit made the point they deemed the jury verdict advisory and said, well, we’ll take it from here. That is not appropriate. . . . And I just want to point out how many times Mr. Rosenkranz is contradicting the jury evidence. . . . The evidence at the trial is certainly sufficient, easily, to reasonably conclude that there was fair use.
After a long 90 minutes of oral argument, the positions of many of the justices remains a mystery. The justices dove deep into the strong legal arguments from both sides, and the government, regarding the legal bases for their copyrightability positions and the proper fair use standard of review. However, it is evident that there is a lingering hesitation within the Court to impose a ruling that could potentially hinder future software innovation.