For a few years I've limited my commentary on the Oracle v. Google Android-Java copyright case to procedural matters, without reiterating the reasons for which I believe the thousands of lines of Java API code asserted in that case are protected by copyright, and their use by Google was unfair. While I agree with Oracle on substance, I did publicly support Google's successful cert petition because I care about the key issues far more than about specific cases.
I'm going to continue to steer clear of arguing the issues. But I am still following the proceedings, and I have bad news for those who hated the Federal Circuit's copyrightability holding: with respect to copyrightability, it looks like Google is more likely than not to lose.
Due to the coronavirus crisis, oral argument was postponed on very short notice in mid-March, and later rescheduled for the next term (October 2020 at the earliest). Then, in early May, the following order was entered:
The parties are directed to file supplemental letter briefs addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard. The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, August 7, 2020.
This is about deference to the jury with respect to "fair use." The jury had found in Google's favor, so this is, per se, a potential Get Out of Jail Free card for Google, and apparently one that a group of law professors had raised in an amicus curiae brief. But it also means Google's non-copyrightability argument is struggling--or may already have failed definitively--to get traction with the top U.S. court for the second time in about six years.
That's simply because the second question ("fair use") won't be reached unless the first (copyrightability) is answered in the negative for Oracle. "Fair use" is a defense to infringement, and you can't infringe what isn't protected in the first place.
It's unclear how many justices proposed the request for supplemental briefing. It might have been only one, but it will have taken support from several others for this order to be entered. There is quite a possibility of multiple justices--potentially a majority--already having concluded that Google can't prevail on its non-copyrightability argument. The hearing was postponed on such short notice that many if not all of the justices are quite informed; at a minimum, their clerks had concluded their analysis at that stage.
If the Supreme Court answered the "fair use" question in Google's favor on the basis of jury deference, it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit's copyrightability holding would be affirmed explicitly or (by reaching "fair use") mostly implicitly, the copyrightability of API code would continue to be a reality in the United States.
In the same scenario (and I'm not suggesting that it's likely--the fact that the SCOTUS requests additional briefing doesn't mean it will necessarily agree with Google on jury deference), those opposing the protection of API code under copyright law wouldn't really make headway beyond this particular case (and even in that one, there'd simply be a remand to the Federal Circuit). It would be a procedural decision, centered around the standard of review, far short of agreeing with Google's "fair use" defense in its own right--and next time a different jury, ideally instructed by a different (more balanced) judge, might simply find otherwise. It wouldn't be precedential with respect to the substantive issue.
After Oracle won the first of two rounds in the Federal Circuit (with Orrick Herrington Sutcliffe's Joshua Rosenkranz as lead counsel), Google already requested certiorari, but the Supreme Court declined. That fact, combined with the May 4, 2020 order that implies copyrightability, suggests quite strongly that Google is facing an uphill battle in that regard.
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