High Court Won't Review Software Copyright, Denies Google's Petition in Android-Java Case

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By Tony Dutra

June 29 — Oracle's Java Standard Library is protectable under federal copyright law, after the U.S. Supreme Court June 29 rejected Google Inc.'s bid for review and let stand the Federal Circuit's ruling in the case.

The high court followed the advice of a brief submitted May 27 by the Office of the U.S. Solicitor General. 

The government said that the law is clear that computer programs are, indeed, protected under the Copyright Act, and it made no distinction between programs and the Java library “declaring code” at issue here.

Google's implementation of the Android operating system for mobile phones is now in jeopardy. But it still has another argument—fair use—that has yet to play out fully in the district court case.

At Issue: Android Smartphone Operating System 

This case arose with Google's creation of its Android operating system, used in smartphones made by Samsung, Motorola, HTC and many other manufacturers. Google did so by replicating support for over 6,000 functions from the Java programming environment.

Google re-wrote the programs implementing those functions themselves, and they are not at issue in the case. Rather, the infringement charge here involves the way programmers take advantage of the “declaring code” to allow those functions to be incorporated in their programs.

The feature, which Java developer Sun Microsystems—now part of Oracle—called a “write once, run anywhere” (WORA) platform in 1996, simplifies life for application programmers. Google's decision to copy much of the declaring code was in lieu of writing a separate Android declaring code—which would have required application programmers to write two sets of code for each application.

The U.S. District Court for the Northern District of California ruled that the Java packages were not protected under copyright law.

In May 2014, the U.S. Court of Appeals for the Federal Circuit said that the trial court had erroneously taken into account infringement issues such as the merger doctrine and the fair use doctrine when resolving the question of protectability.

SG's Views Requested

Google petitioned the Supreme Court for review on Oct. 6, focused on a provision of the Copyright Act, 17 U.S.C. §102(b), that states that protection will not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.”

The petition thus asked:

Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way.


The court Jan. 12 asked the government to submit its views on the question.

The government rejected Google's argument. Section 102(b) codified the idea-expression dichotomy, it said. It specifies that expression, not ideas, are protectable, but it does not limit the kinds of expressions that were protected.

Back to District Court for More

The case—dubbed “the ‘World Series' of intellectual property trials” by the Judge William H. Alsup of the Northern District of California—is not over, though.

Google also argued fair use before the district court, saying that exclusive copyrights in the Java library would generally interfere with competitors' ability to make interoperable technologies.

That issue was raised in the appeal, but the Federal Circuit remanded the issue.

The court's decision that the library was protectable, in fact, faulted the district court for taking the fair use doctrine, under Section 107, into account when resolving the question of protectability, under Sections 101 and 102.

Interoperability went to the second fair use factor, the Federal Circuit indicated, as part of the “lower degree of protection” given when the nature of the work contains a substantially functional nature. However, the district court had not conducted “that type of filtration analysis” yet, the appeals court said.

To contact the reporter on this story: Tony Dutra in Washington at adutra@bna.com

To contact the editor responsible for this story: Blake Brittain at bbrittain@bna.com

Petition is at http://pub.bna.com/ptcj/140410petition.pdf.

SG brief is at http://pub.bna.com/ptcj/140410SGbrief.pdf.

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