One amicus brief suggested the following analogy: Consider a car manufacturer that develops an ignition switch using a metal key that includes an original cut pattern on the blade. Although the cut pattern may be protected as a “modern sculpture,” the car manufacturer could not use copyright law to prevent others from utilizing the same expression for the purpose of starting the car. Copyright protects separable expressive features, such as surface ornamentation of an ignition key. It does not prevent the reuse of functional specifications. Only patent law can protect those features.
Another amicus brief analogized the reuse of Java APIs to the reuse of phrases in Supreme Court opinions. Looking at 15,942 opinions issued in 7,113 cases from 1946 to 2014, they broke the text of each opinion into phrases. On average, 64.6% of three-word phrases can be found in prior opinions. Removing these “copied” phrases (e.g., assuming they are copyrightable) renders the text of the opinion unintelligible or ambiguous.
The “structure, sequence and organization” (“SSO”) of the Java APIs are also not copyrightable. One amicus brief suggests considering the SSO of an online form for entering payment and shipping information when buying a product online. A shopping site could come up with a totally new format for requesting this information. For example, instead of entering “First Name, Last Name,” users might be required to enter “Name as it appears on most recent 1040 tax form for U.S. taxpayers” or “Name that comes after your first name and middle name(s).” Common sense, technological standardization, and economic efficiency have driven the industry to adopt an almost ubiquitous SSO that every user expects, understands, and completes with ease.
Holding the Java APIs to be copyrightable runs contrary to a broad consensus of judicial and legislative evolution around the world that copyright does not protect software interfaces such as the Java APIs at issue in this case.
See, e.g., briefs filed by: Electronic Frontier Foundation; Software Freedom Law Center; Michael Risch; Peter S. Menell, David Nimmer, and Shyamkrishna Balganesh; Empirical Legal Researchers; Brief of 72 Intellectual Property Scholars; International Business Machines Corp. and Red Hat, Inc.; The Computer & Communications Industry Association and Internet Association.
The “It Happens” Argument
A number of amici argue that copying of this nature happens in many industries, from software to the medical, legal and retail industries. Several briefs offer examples to illustrate that copying of this nature is not problematic for innovation. To the contrary, it’s helpful and functional.
Innovation today depends on collaborative development, interoperability and reuse of computer code. For example, the reuse of APIs allows users to freely add, delete and update apps without purchasing a new phone. To maintain, service, repair, customize, and refurbish OEM automotive products, suppliers of aftermarket parts must access the product software applications through a program interface.
Holding Java APIs to be copyrightable disturbs settled industry expectations that programming interfaces are uncopyrightable functional elements. In cloud computing Oracle itself is reusing APIs. Historically, the software industry has developed through the reuse of APIs. Examples include Unix -> Linux -> Android/Apple iOS and IBM BIOS -> AWS -> Microsoft/Oracle/Google cloud computing systems. Rather than compete on the API design, software providers compete on business factors—like price and customer service—and on implementation factors—like latency, downtime, and redundancy.
Google was simply giving Java programmers an option to exploit their own prior investment in learning the Java language. Subjecting APIs to copyright protections would force developers to constantly re-engineer something that already works, stymying creativity and innovation. Any program that exists today could conceptually be rewritten by removing all API declaration calls and replacing them with the entirety of the remote implementing code they represent.
Subjecting APIs to copyright protections would be particularly harmful to startups small businesses and entrepreneurs. Requiring startups to pay royalties to perform rudimentary operations, or engage in hundreds, or thousands coding workarounds which will exponentially increase the costs of developing software. The likely result will be that more startups fail.
Empirical research demonstrates that broader copyright protection is not correlated with more revenue for copyright owners or production of more creative work product for society. This empirical research suggests the Court should favor narrower, rather than broader, copyright protection.
Aside from commercial benefits, copying of this nature is associated with important social benefits. Librarians and the patrons they serve are dependent on a robust and stable understanding that copying of this nature is fair use. The lower court made mistakes about the fair use factors and their balancing, such as dismissing as insignificant the functional nature of the Java APIs and conflating the market for the Java platform as a whole with the market for individual APIs.
Likewise, the jury’s fair use verdict should be respected. Until the decision below, no court of appeals had exercised de novo review to reverse a jury’s general verdict finding of fair use. This is the first time that has ever happened, and it is unconstitutional. The seventh amendment right to a jury trial applies to questions of fair use.
See, e.g., briefs filed by: Auto Care Association and Static Control Components, Inc.; Developers Alliance; R Street Institute, Public Knowledge, and The Niskanen Center, Engine Advocacy; American Library Association et al.; Software and System Developers and Engineers for United States Government Agencies; Professor Glynn Lunney; Software Innovators, Startups, and Investors; 83 Computer Scientists; Copyright Scholars; Civ Pro, IP & Legal History Professors; Microsoft Corporation.
Arguments in favor of neither party
Amici on both sides of the debate advocate that no preference or irrelevance should be given to any one of the fair use factors.
The Robert Rauschenberg and Andy Warhol Foundations argue that whatever the Court decides regarding fair use, the Court should be clear that the same analysis does not necessarily apply to other contexts such as art, literature or music. In these contexts, fair use must account for the reality that expressiveness often builds on, and pays homage to, pre-existing works.
The American Intellectual Property Law Association also filed a brief in support of neither party. The substance of their arguments is that declaring code portions of the Java application programming interfaces (“APIs”) are not protected by copyright (generally supporting Google). They also advocate respecting the underlying jury verdict finding Google’s use to have been fair.
As is evident by the number of amicus briefs filed in the case, the Court’s handling of the software copyright questions at issue will create important national precedent. The case was scheduled for argument on March 24, 2020, and the Court has postponed it until further notice because of the coronavirus pandemic. Stay tuned for case updates.