Other than a potential remand of the "fair use" question to the Federal Circuit, Google cannot realistically hope for anything positive to come out of yesterday's Supreme Court hearing in Google v. Oracle America (petitioner v. respondent as opposed to plaintiff v. defendant): the Android maker's non-copyrightability defense has a snow flake's chance in hell.
I wrote yesterday's triumphant post on the basis of having listened to the hearing on C-SPAN Radio (over the web). Now I'd like to go over what the justices said in the copyrightability context based on the transcript (PDF). I'll sort this by judge, in the order in which each judge first addressed this subject (seniority). And I'll then provide my interpretation.
Chief Justice Roberts
"Mr. Goldstein, let's say someone copies the headings in your -- your brief and they copy the organization in your brief, which sections you put first and how you organized them. Is your argument -- would your argument say that that's perfectly fine so long as they write their own text?"
This is consistent with how Oracle to the Federal Circuit years ago, with its Harry Potter analogy, which was just genius. The problem this posed to Google is that they'd either have to argue computer programs are different (which they tried yesterday, to no avail in the copyrightability context) or they'd have to take a very expansive view on what's not copyrightable.
"I understand your merger doctrine -- argument is different, but I -- I don't think that was the question I asked."
Google's counsel was being evasive again, so the Chief Justice said:
"Well, if you're talking about necessary to do so, and, again, you're force -- forcing me back to the merger -- to the merger doctrine, and that's -- that's fine, but the only reason that there's only one way to do it is because Sun and Oracle's product expression was -- was very successful. There were a lot of ways to do it when they did it. And the fact that everybody -- programmers really liked it and that's what everybody used, it seems a bit much to penalize them for that."
I love that part. First, the Chief Justice gave up on eliciting a real answer from Mr. Goldstein on the book analogy, which obviously made Google's argument look every bit as weak as it was. Second, the Chief Justice identified the fundamental flaw in Google's reference to the merger (of fact/function and expression) doctrine: while the doctrine applies to the situation at the time something is created, Google wants the court to time-travel and make Oracle, as Sun's acquirer, a victim of its own success with Java by saying that now the structure of those Java APIs is a method of operation and there is, therefore in Google's view, only one way to express them.
"I don't think it's a patent right. I mean, it's the -- it's their particular expression. And you want to -you say the only way for you to say what you want to say in the --the new material that you provide is to copy -- copy theirs. That's not a -- a patent. That's -- that's copyright."
At this point Mr. Goldstein had already lost (and as I wrote yesterday, he's great but Google has no non-copyrightability case by any stretch of the imagination) on three counts: he was evasive on the book analogy; his merger doctrine argument failed because he wants to retroactively apply it; and his claim that Oracle was trying to use copyrighted works to achieve a patent-like monopoly is nonsensical because it's about expression (about something that was written, not about an abstract functionality).
"[B]efore you get into fair use, you say that was the only way for you to do it. But, you know, cracking the safe may be the only way to get the money that you want, but that doesn't mean you can do it. I mean, if it's the only way, the way for you to get it is to get a license."
As came up several times in this ten-year litigation, the makers of Android were even negotiating a license, but decided to go ahead without one.
"Well, all right. I mean, you're --but what about the -the --the combination to the lock on the safe? Can you copy that just because somebody else has it and that's the only way to get in?"
Mr. Goldstein tried to give the "safe" analogy a spin for his purposes, but the Chief Justice didn't buy it that what Oracle was trying to achieve with its copyright assertion was a broad monopoly over how to do something.
"Mr. Rosenkranz, let's say you want to open a restaurant. You've got a great new chef. He's got great new dishes. And you say: Well, we've got to figure out what the menu should look like. You know, of course, you're going to have, you know, appetizers first, then entrees, and then desserts. Now you shouldn't have to worry about whether that organization is copyrighted.
"And I think Mr. Goldstein is saying that that's what's going on --on here. Every restaurant organizes its menu that way, and you don't want to discourage people from opening it because they're going to have to spend their own time trying to figure out what the menu should look like.
"Why isn't that exactly what Google is saying here?"
The Chief Justice used an analogy here that involves a much simpler and smaller structure than the Java APIs. That's why Oracle's counsel then noted the Java APIs "fill the blanks in 30,000 times over, and each item had its own description that no one else was using."
"Well, you say that they did have a choice; in other words, your work did not leave them with no -- no option. Well, what choice did they have without having to spend billions of dollars, which would be wasteful and impede the development of the high-tech business?"
This is now a policy question, and Oracle's response was that Microsoft and Apple (by coincidence, Mr. Rosenkranz has also been appellate counsel to them on various occasions) actually did just that, and that the idea of copyright law is that you do have to come up with your own creation. That applies to all fields of IP law, in fact: patent holders will also argue that someone should just work around (or take a license if available).
"Mr. Goldstein says the most efficient, the best way to do it, the way to keep programmers doing new things, rather than old things, is to use Java."
This question was so broad and general that it wasn't clear whether it was still about copyrightability or whether the Chief Justice had moved on to fair use, especially with the occurrence of the verb "to use." Oracle responded in both respects.
Justice Thomas
He hardly ever asked questions while Justice Scalia was alive. But since then I've heard him ask very interesting questions. He's a great thinker.
"Mr. Goldstein, you seem to rely quite a bit on Section 102. Why don't we rely on Section 101, which is more specific with respect to computer programs?"
This 101/102 distinction reminds me of the Federal Circuit hearing, where Oracle's counsel Joshua Rosenkranz explained, and the appeals court appeared to agree, that Section 101 is where copyrightability is decided, while Section 102 is more about what scope it then has. Interestingly, Mr. Goldstein didn't disagree. He just tried to thread the needle somehow with the help of the merger doctrine, which the Chief Justice had already shot down.
"So at what --at what point should we determine the merger, whether or not there is merger? When Oracle or Sun develops this program or when you decide to use it?"
Google's merger argument again fails because of their time travel type of proposition. But Mr. Goldstein tried nonetheless (as the alternative would have been to just concede the case away, though that would have been warranted) to defend the retroactive approach, and pointed to Baker v. Selden, a case I discussed in 2013. Justice Thomas then came up with an interesting analogy to Google's idea that someone should become the victim of their own success:
"You know, you could --someone could argue, though, that, look, if a -- a team -- 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. I don't think anybody would say that is --is right."
Mr. Goldstein then tried to drive the point home that Oracle wanted a captive audience in terms of the programmers using Java or, as he called it, "prisoners" and not a "fan base." But that was again just him being evasive, as Justice Thomas obviously noted:
"Well, actually, my concern was having to turn over the playbook. But let's go to fair use briefly [...]"
So far, Mr. Goldstein still hadn't given a single answer in a strict sense to any of the questions that the Chief Justice and by now the most senior Associate Justice asked.
"Mr. Rosenkranz, in your brief, you seem to be arguing for more than the declaring code. If I'm right there, do we need to decide more than that?"
Oracle of course said it was just about the declaring code, but with declaring and implementing code not being practically distinguishable from a copyrightability point of view, it might have seemed that they were going beyond just declaring code.
Justice Breyer
When it comes to patents, he's relatively defendant-friendly. But patents and copyrights are different fields of IP law.
"Well, I have a question for each side that I'm trying to answer in my own mind. For you, I'd --I'd like to ask this: I write down at the computer, I have a computer in front of me, and I put java.lang.math.max(410), okay? And that calls up a certain program, which you did not copy, the one it calls up, which is setting the switches of a computer.
"Well, the thing I --the words I just spoke also call up a particular program, i.e., a set of computer switches that will get me to the program that does the --you know, that does a particular thing.
"Well, it's a computer program, isn't it? And you can copyright computer programs. And so what's the difference between java.lang, et cetera, which sets switches on the computer, and any other program that sets switches on the computer?"
This is a point I've been making for a long time: in order to deprive API-related code of copyrightability, one would have to generally narrow the scope of copyrightable works in the computer software context. As a programmer I know that the java.lang.math.max function requires two parameters to make sense, but that doesn't change anything about Justice Breyer having asked an excellent question that added value to what the Chief Justice and Justice Thomas had said.
"I bet there aren't -- just one way to do it. Why is there just one way to do it? If you spent enough time and you had the most brilliant computer programmers, don't you think they could devise a system of calling up the Java program, though it might be expensive to do and take a long time, that didn't use the word java.lang.math?"
This is also one of the fundamental truths in this case: Google alleges that something is like a real-world fact. It's like talking about the capital of the United States, and of course its name is Washington, so anybody talking about it has no choice about that name. You might be able to use a nickname, or a metonym. Well, you can say "D.C."--a synonym in most contexts. But the API code at issue here was freely defined.
During Oracle's argument, Justice Breyer said the following about copyrightability:
"All right. Please assume with me the following: Assume that the --what you read, the computer --computer programs which do something, after all, are copyrightable, but then it says methods of operation are not, whether they're computer programs or not.
"The problem for us is, is this more like Baker v. Selden, where they said the accounting is not, it's a method of operation? Or is it more like an ordinary computer program?
"All right. Now what I got out of reading through this very good briefing is, look, Java's people divided the universe of tasks, of which there are billions, in a certain way. All the things that tell the computer to do one of those things, we'll do. But that which tells the computer which to do, that's the declaration.
"Here is what it's like. It's like, as Judge Boudin said, the QWERTY 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.
"Or it's like switchboards on old-fashioned telephone systems. You could have done it in 1,000 ways. But, once you did it, all those operators across the world learned that system, and you don't want to give a copyright holder a monopoly of --hmm -telephone systems.
"Or it's like, to use the Chief Justice's example, a chef who figures out brilliant ways of mixing spices and then putting the spices for this and that in a certain order on a shelf, and then he writes something that tells you which shelf to go to and which shelf to pick out and which spice to pick out for which dish.
"Now all those things are somewhat ordinary programs, but they also are doing something. They're giving you an instruction as to how to call up those programs that reflect Java's organization.
"And at this point in time, it's really tough, just like the QWERTY keyboard, to go backwards, and very bad consequences will flow if you don't see that distinction. Okay?
"Long question, but that's what I got out of their method of operation argument. And I wanted you to say what you want about that."
Oracle's counsel was quick to point out that those analogies were more mechanical than the expressive Java API code. Anyway, the long statement Justice Breyer made suggests he understood the problem of Google making a retroactive-retrospective type of argument.
Justice Alito
"Mr. Goldstein, I -- I'm concerned that, under your argument, all computer code is at risk of losing protection under 102(b). How do you square your position with Congress's express intent to provide protection for computer codes?"
This concern is simply damning for Google. And it's consistent with the issue Justice Breyer raised.
"Well, there have been --a lot of questions already about the merger argument, but how do you respond to Oracle's argument that you're -you are arguing in a circle, that there is only one way to write a declaring code like Oracle did?"
If this case had been put before Justice Alito alone, it would have taken him only a few minutes to dispose of the non-copyrightability defense.
Justice Sotomayor
"Counsel, I --I -I go back to the essence of the question that I think my colleagues are asking, is how do you differentiate between declaring codes and implementing codes? Because you agree --you agree that you couldn't have copied their implementing code because there are multiple ways of doing that.
"But you fight the declaring codes because there are multiple ways of declaring as well. Apple has a different way of declaring the same functions. They spent the billions of dollars necessary. Presumably, you could have.
The fact that Apple built a smartphone operating system without doing this was a very strong one. It's just absurd that Google--trying to keep a totally meritless defense alive--then tried to distinguish iOS from Android because they used a different programming language.
"And yet, you spent so much time in your brief convincing me that implementing and declaring codes go together in this hand. They merge. How do we draw the line?"
We can see here that Justice Sotomayor is not willing to weaken copyright protection for computer programs in general only to suit Google's needs.
"May I --may I stop you right there? That's the nub of the problem, which is, what gives you the right to use their original work? What --how do you define 'method of operation' so that there's a clean line between that and when you have to create new code?
"Like an implementing code."
"My problem with your argument is, what's your definition of 'interoperability'? It seems one-directional. You seem to define it as the extent to which existing third-party applications can run on your platform, but not whether apps developed on your platform can run on systems that use Java SE. So it's one way."
Here I think Justice Sotomayor made a very important point (Google wanting to take, not give) but not in the most suitable context. She had actually, inadvertently, already started to talk about something that has no bearing on copyrightability but only on fair use.
"So could people now copy your --your --you now have developed many different packages and platforms and things like that. Can they copy yours now?"
Mr. Goldstein then replied in a way that would keep all options open for Google to sue anybody later, just trying to distinguish the cases. And judges easily see through that.
During Oracle's part, Justice Sotomayor focused on the potential impact of the decision:
"Counsel, at the -in your beginning statement, you had the sky falling if we ruled in favor of Google.
The problem with that argument for me is that it seems that since 1992, and Justice Kagan mentioned the case, the Second Circuit case, a Ninth Circuit case, an Eleventh Circuit case, a First Circuit case, that a basic principle has developed in the case law, up until the Federal Circuit's decision.
"I know there was a Third Circuit decision earlier on in the 1980s. But the other circuits moved away from that. They and the entire computer world have not tried to analogize computer codes to other methods of expression because it's sui generis.
"They've looked at its functions, and they've said the API, the Application Programming Interface, of which the declaring code is a part, is not copyrightable. Implementing codes are.
"And on that understanding, industries have built up around applications that know they can --they can copy only what's necessary to run on the application, but they have to change everything else. That's what Google did here. That's why it took less than 1 percent of the Java code.
"So I guess that's the way the world has run in every other system, whether it's Apple's desktop or Amazon's web services, everybody knows that APIs are not --declaring codes are not copyrightable. Implementing codes are.
"So please explain to me why we should now upend what the industry has viewed as the copyrightable elements and has declared that some are methods of operation and some are expressions. Why should we change that understanding?"
When she refers to Google just taking less than 1% of the Java code, it sounds as if she conflated copyrightability and fair use, and maybe that was her intention, or maybe it just looks like it.
I believe some others who listened to that part have attached way too much important to the impact assessment. The law doesn't work that way. Yes, policy matters, but none of what Justice Sotomayor said in that long passage really shows a path under the law as it stands to arrive at Google's desired result, even if she desired it as well, which is not even a given (though she was relatively sympathetic to Google in some contexts).
Justice Kagan
"Mr. Goldstein, I have to confess to being a little bit surprised or confused about some of the arguments you're making this morning. And maybe it's just me and I don't understand it, but I'm hoping you'll explain it to me, because, when I read your briefs, I took you to be making a somewhat different argument, principally, than the one you're making today."
This impression of shifting-sand arguments or even self-contradiction is obviously a lawyer's nightmare.
"I took you to be saying that the declaring code is unprotected because it's a method of operation, that it's what allows Java programmers to operate the computer, and to be setting forth a pretty flat rule on that --of --of that kind.
"And --and I don't hear you saying that today. Instead, I hear you saying, you know, the real question is, are there multiple ways of doing the same thing?
"So are those different arguments? And which one are you making?"
Google's lawyer then wanted to have it both ways. And he tried to appeal to her by saying that his approach was "textualist."
"Excuse me. Sorry, Mr. Goldstein. But, if --if --if --if that's your test that you're focusing on today, is that essentially the test that comes out of the Second Circuit Altai case? Is there any difference between what you're saying today and --and --and what Altai says, which is essentially that we have to figure out how to separate out the expressive elements of something?"
This is the filtration approach, and her reference to this makes it a possibility that her understanding of copyrigh case law is particularly deep. The above was the most sophisticated question in my view as far as appellate case law on copyright is concerned. Other questions--asked by other justices--had other strengths, such as Justice Alito being super-efficient and Justice Thomas using interesting analogies.
"And if I could go back to something that I think the Chief Justice was asking about, I mean, suppose I'm --I'm --I'm sitting in a mathematics class and the professor says: Do a proof of --of --of something or other. And, you know, it turns out that 20 people in this mathematics class actually come up with more than one proof, and some are better than others, you know, some are elegant and some are less elegant.
"So there are more than one way of proving whatever proposition there is. How do we deal with that? I would think that that's pretty analogous to the situation here, that there are more than one way and Oracle happened to come up with a particularly elegant one."
Mr. Goldstein then tried to evade that question, and while Justice Kagan thanked her, I doubt he managed to convince her.
"Mr. Rosenkranz, as -as I understand it, there are two features of your declaring code that you think merit copyright. And I want to make sure I'm --I'm --I'm right on this first.
"The --the first feature, and this is pretty basic, is that we need some way of connecting a programmer's inputs, whatever they happen to be, some way of connecting those inputs to implementing code.
"And then the second feature is that there needs to be a way to organize those inputs, those calls, into various classes and packages.
"So one is like the trigger and one is the method of organization. Is that right? Is that the thing that you're saying merits copyright?"
Oracle clarified that it's about the declarations themselves, but also their structure, sequence, and organization.
"Okay. So let's start with that, the taxonomy, the structure, the organization, and we can, if we have time, get back to the other.
"I'll give you an example that's similar to one that the Chief Justice used, but I think you won't be --you won't be able to answer in quite the same way.
"Suppose I own a grocery store and I come up with a really terrific way of organizing all my fresh produce, all my fruits and vegetables, into these categories and sub-categories, very intuitive for the shopper. And this is not the standard way. So it's different from the Chief Justice's hypothetical in that way. It's novel. And it's great. And a rival grocery store, all rival grocery stores want to copy it.
"Do I have a copyright claim?"
Oracle then explained that not every structure, sequence, and organization is copyrightable. It depends on what the structure consists of.
"So why is it worlds different? I mean, it seems to me that there are all kinds of methods of organization in the world. You know, whether it's the QWERTY keyboard or whether it's the periodic table or whether the system of kingdoms and classes and phyla and so forth that animals are organized into.
"I mean, there are a thousand ways of organizing things, which the first person who developed them, you're saying, could have a copyright and then prevent anybody else from using them."
It then appeared Oracle answered the question satisfactorily, especially when reminding the judge that the material in question spans 600 pages in the appendix.
Justice Gorsuch
"Good morning, Mr. Goldstein. If --if I understand the conversation so far, you are moving past, rather rapidly, the --the primary argument in your brief that the code just simply isn't copyrightable.
"And I --I --I think that's probably a wise move given the fact that 101 says computer programs, including statements or instructions, in order to bring about a certain result, may be copyrighted.
"We might not think otherwise that it should be, but there it is. And, normally, the --the specific instruction there in 101 would govern the more general idea-expression dichotomy in 102.
So am I right, that we can move past that rather rapidly?"
This question by Justice Gorsuch is an excellent statutory one. And when Mr. Goldstein said he actually argues the merger doctrine, the justice replied:
"So I take that as a yes. I'll be honest with you."
It wasn't good news for Mr. Goldstein, but such forthrightness is actually helpful.
"So, if we're moving straight on to the merger doctrine, there, I guess I'm stuck in a similar place as Justice Kagan, which is the argument strikes me very much me as I wish to share the facilities of a more successful rival because they've come up with a particularly elegant or efficient or successful or highly adopted solution in the marketplace, and --and ride on --on --on their innovation.
"What do we do about the --the fact that the other competitors, Apple, Microsoft, who I know is one of your amici, have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying?"
Apple had been mentioned by Justice Sotomayor. Now Justice Gorsuch adds Microsoft. And in a way Justice Gorsuch created a synthesis of Justice Thomas's statutory approach and Justice Kagan's additional reference to case law.
"[I]sn't it pretty difficult to say that this is an essential facility-type problem when --when others have managed to --to innovate their way around it?"
Interestingly, Justice Gorsuch drew an analogy to antitrust law here. And my position has long been that the problem of access to copyrighted APIs should be solved through compulsory licensing on FRAND terms under an antitrust duty to deal.
"[I]f we're worried about ideas and expressions merging, and --and others have been able to accomplish the task without reliance on what --what you might claim to be the essential facility, where --where do we stand?"
Here, Justice Gorsuch checkmated Mr. Goldstein. Simple as that.
Justice Kavanaugh
"To the extent you're still making the method of operation argument, the other side and the solicitor general say that declaring code is a method of operation only in the same sense that computer programs as a whole are methods of operation and that, therefore, your method of operation argument would swallow the protection for computer programs.
"Your response to that?"
Again the concern I share over copyrighability not being the vehicle for distinguishing between declaring and implementing code.
"On your merger argument, one concern that has been raised already is the timing issue. Another concern that I want you to respond to is that it seems to define the relevant idea in terms of what you copy. You're not allowed to copy a song just because it's the only way to express that song.
"Why is that principle not at play here?"
The reference to a song not being free for the taking "because it's the only way to express that song" again exposes Google's approach of saying that something popular loses copyright protection. Mr. Goldstein then claimed they weren't "defining merger self-reflectively," but not in a convincing way.
"One of the points in some of the amicus briefs, and I want to compliment the briefing of the parties and all the amicus briefs, which have been enormously helpful, of the 83 computer scientists is that the sky will fall, in essence, if we rule against you in this case, threaten significant disruption.
"One question I had about that, though, is the Federal Circuit ruled in 2014, this Court denied cert in 2015 on the first issue. I'm not aware that the sky has fallen in the last five or six years with that ruling on the books.
"I know it's different if we rule here, but can you respond to that?"
I got the impression yesterday, as I also noted in my post right after the hearing, that this impact assessment type of question may play a major role in the discussion between the justices. And it's not just about copyrightability, where Google has no prayer, but even more relevant with respect to fair use, where there isn't a clear majority--however, fair use is so fact-specific (and in this case also a procedural matter--standard of review) that I don't think one needs to be concerned even if one agreed with Google on pretty much everything else. We're not talking about a general finding that APIs can never give rise to a fair use exception. It's about only this (extreme) case.
"And welcome back, Mr. Rosenkranz. I just want you to follow up on two of my colleagues' questions.
First, any more you want to say about Justice Breyer's QWERTY keyboard question? And, second, Justice Sotomayor's question about settled expectations and --and I would add the 83 computer scientists' concern about threatening significant disruption. If you could just follow up on those two, and I have no further questions after that."
The way I understood this was that he just wanted to give Oracle's counsel the chance to complete whatever he wanted to say before, or to maybe optimize his argument.
Later, Justice Kavanaugh also gave the Deputy Solicitor General of the United States, Malcolm Stewart, a chance to talk about copyrightability:
"Good morning, Mr. Stewart. One question on merger doctrine and one question on method of operation.
"First, Google says in its reply brief 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.
"Are they wrong in saying that?"
And another chance:
"And the method of operation, Google says that the declarations are a method of operation because they are for the developers to use, while the implementing code instructs the computer.
"Your response to that?"
Those questions didn't change anything about my impression that the SCOTUS will either affirm the copyrightability finding unanimously or, less likely but possible, "only" near-unanimously.
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