In Oracle-Google war, a battle of analogies will shape the future of software copyrights

As we saw a few weeks ago, the long-running software fight between Oracle and Google reached its crescendo in early October when the tech giants took up arms at the Supreme Court.

While it will be months before the outcome is known, the
questions asked by the justices during oral argument suggest that the issue of
what aspects of software are copyrightable — a key question for the future of
protecting technology — will be resolved through a battle of analogies.

U.S. Supreme Court Associate Justice Clarence Thomas (L) talks with Chief Justice John Roberts at the Supreme Court in Washington, U.S., November 30, 2018, via Reuters

Lawyers and judges have always leaned heavily on reasoning by analogy; after all, in a common-law system, new fact patterns must be compared and contrasted with existing precedents. But this tendency has intensified in the technically complex and legally challenging area of software and copyright and especially so in the Oracle-Google context of application programming interfaces (APIs) in the Java programming language.

Recall that Oracle alleged Google copied Oracle’s
proprietary APIs — which it protected through copyright — into the code Google
used on the Android mobile operating system. Google argued, however, among
other things, that the “declaration” sections of the API code, i.e., the
portion of Java that identifies a certain type of data, are not creative enough
to warrant copyright protection and so basic that they cannot be rewritten in a
way that doesn’t copy the original code without compromising functionality.

The justices struggled mightily with this dispute and sought to analogize it to real-world examples such as a restaurant menu, a football playbook, the QWERTY keyboard, mathematical proofs, and supermarket aisles.

Chief Justice John Roberts asked counsel for Google whether it would be appropriate for him to copy the headings and organizational structure of a legal brief, since ostensibly they are more functional than creative. Google’s attorney responded that such copying would not be permitted, since a lawyer could vary the words in the heading and alter the brief’s organization, but computer code is different because “It is not possible to provide the functionality that we have the right to with Android without recreating that structure.”

Roberts later asked counsel for Oracle whether he would
object to copying the structure of a restaurant menu: “appetizers first, then
entrees, and then desserts.” Oracle’s lawyer replied that Google’s copying in
this case went much further, arguing that the search giant “filled the blanks
in 30,000 times over, and each item had its own description that no one else
was using.”

For his part, Justice Clarence Thomas queried whether Google’s counsel would liken his client’s conduct to football: “If a team takes your best players, a football team, that the only way that those players could actually perform at a high level is if you give that team your playbook.” Google’s attorney responded that by adapting the Java code to its Android operating system, Google wrote a different playbook.

Justice Stephen Breyer asked Oracle’s lawyer whether its
APIs were the equivalent of a computer keyboard: “You didn’t have to have a
QWERTY keyboard on typewriters at the beginning, but, my God, if you let
somebody have a copyright on that now, they would control all typewriters,
which really has nothing to do with copyright.” Counsel for Oracle parried this
question by noting that QWERTY, unlike the APIs, was purely functional and not
expressive of any particular thought or idea.

Finally, Justice Elena Kagan tried a few analogies of her
own, inquiring of Google’s attorney whether the APIs were like mathematical
proofs: multiple versions, but some more elegant than others. Google’s counsel
replied that here, the Java code in question is the equivalent of the only math
teacher who can understand a given proof, and therefore preventing others from
using that understanding serves to suppress knowledge.

Kagan later asked counsel for Oracle whether she could enjoy
copyright protection over “a really terrific way of organizing all my fresh
produce, all my fruits and vegetables” in a grocery store. Oracle’s lawyer
responded that only materials committed to writing can be copyrighted, but that
if the supermarket organization process was written down, it could potentially
be protected.

We won’t know for a little while how the high court will decide this complex matter, but we can expect to see heavy reliance on analogies in the opinion.

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