No. 18-956
`IN THE
`Supreme Court of the United States
`________________
`GOOGLE LLC,
`
`Petitioner,
`
`Respondent.
`
`Dorian E. Daley
`Deborah K. Miller
`Matthew M. Sarboraria
`Andrew C. Temkin
`ORACLE AMERICA, INC.
`500 Oracle Parkway
`Redwood Shores, CA
`94065
`
`v.
`ORACLE AMERICA, INC.,
`________________
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`________________
`BRIEF FOR RESPONDENT
`________________
`E. Joshua Rosenkranz
`Counsel of Record
`Annette L. Hurst
`Peter Bicks
`Lisa T. Simpson
`Andrew D. Silverman
`Matthew R. Shahabian
`Jeremy Peterman
`Hannah Garden-Monheit
`Geoffrey Moss
`Dale M. Cendali
`ORRICK, HERRINGTON &
`Joshua L. Simmons
`SUTCLIFFE LLP
`Jordan M. Romanoff
`51 West 52nd Street
`Ari E. Lipsitz
`New York, NY 10019
`KIRKLAND & ELLIS LLP
`(212) 506-5000
`601 Lexington Avenue
`jrosenkranz@orrick.com
`New York, NY 10022
`Counsel for Respondent
`
`
`IN THE
`Supreme Court of the United States
`________________
`GOOGLE LLC,
`
`Petitioner,
`
`Respondent.
`
`Dorian E. Daley
`Deborah K. Miller
`Matthew M. Sarboraria
`Andrew C. Temkin
`ORACLE AMERICA, INC.
`500 Oracle Parkway
`Redwood Shores, CA
`94065
`
`v.
`ORACLE AMERICA, INC.,
`________________
`ON WRIT OF CERTIORARI TO THE UNITED STATES
`COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`________________
`BRIEF FOR RESPONDENT
`________________
`E. Joshua Rosenkranz
`Counsel of Record
`Annette L. Hurst
`Peter Bicks
`Lisa T. Simpson
`Andrew D. Silverman
`Matthew R. Shahabian
`Jeremy Peterman
`Hannah Garden-Monheit
`Geoffrey Moss
`Dale M. Cendali
`ORRICK, HERRINGTON &
`Joshua L. Simmons
`SUTCLIFFE LLP
`Jordan M. Romanoff
`51 West 52nd Street
`Ari E. Lipsitz
`New York, NY 10019
`KIRKLAND & ELLIS LLP
`(212) 506-5000
`601 Lexington Avenue
`jrosenkranz@orrick.com
`New York, NY 10022
`Counsel for Respondent
`
`
`
`i
`
`QUESTIONS PRESENTED
`The Copyright Act protects “literary works,” 17
`U.S.C. §102(a), expansively defined as “works … ex-
`pressed in words, numbers, or other verbal or numer-
`ical symbols or indicia,” §101. Computer programs are
`protected as literary works under the Act. Google cop-
`ied 11,330 lines of Oracle’s original and creative com-
`puter code, as well as the intricate organization of its
`computer program, into a competing software plat-
`form, Android. The questions presented are:
`1. Under §102(a), computer programs, like all
`“works of authorship,” have “[c]opyright protection,”
`as long as they are “original.” The merger doctrine
`does not make any expression unprotectable except in
`the rare circumstance where there were very few
`ways to express the idea. Does the Copyright Act pro-
`tect the code and organization that Google concedes
`were original and creative and that Oracle could have
`written in countless ways to perform the same func-
`tion?
`2. Was the Court of Appeals correct in holding
`that Google’s copying was not fair, where Google con-
`ceded it copied for commercial purposes and that the
`code it copied serves the same purpose and has the
`same meaning, and Google did not dispute the evi-
`dence that Android competes directly with Oracle’s
`work, harming its actual and potential markets?
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ...................................... i
`TABLE OF AUTHORITIES ......................................v
`INTRODUCTION ..................................................... 1
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED ................................ 3
`STATEMENT OF THE CASE .................................. 3
`Sun Develops Java SE To Help
`Developers Write Their Own
`Applications ................................................... 3
`Sun Licenses Java SE, Including Just
`Declaring Code And Organization .............. 11
`Google Copies 11,330 Lines Of Declaring
`Code And The Organization Of Java
`SE ................................................................. 12
`Android Competes Directly With Java SE ...... 14
`The Court Of Appeals Finds Google
`Unfairly Copied Copyrightable Code ......... 15
`SUMMARY OF ARGUMENT ................................. 16
`ARGUMENT ........................................................... 20
`I.
`Java SE’s Declaring Code And
`Organization Are Copyrightable. ..................... 20
`A. Java SE’s declaring code and
`organization, which Google conceded
`are original, are protected under
`§102(a). ........................................................ 20
`
`
`
`iii
`
`B. Section 102(b) codifies the
`idea/expression dichotomy, and Oracle
`seeks protection only for its particular
`expression, not ideas. .................................. 23
`C. Google’s merger argument is meritless. ..... 28
`1. Merger is inapplicable because Java
`SE’s authors had countless ways to
`express the ideas embodied in the
`platform. ................................................. 28
`2. Copying Java SE’s exact words and
`organization was not necessary for
`Google to express the ideas. .................. 30
`3. Google’s proposed interoperability
`exception is misplaced and
`inconsistent with the Act. ...................... 35
`II. Google’s Superseding Use Of Oracle’s
`Copyrighted Work Was Not Fair Use. ............. 36
`A. The Court of Appeals applied the
`correct standard of review. ......................... 37
`B. Google’s copying is an unfair
`superseding use. .......................................... 39
`1. Factor one: Google’s use was
`commercial and for the same
`purpose as Oracle’s. ............................... 39
`2. Factor two: Google copied creative
`and expressive portions of Oracle’s
`work. ....................................................... 44
`3. Factor three: Google’s copying was
`substantial. ............................................ 45
`
`
`
`iv
`
`4. Factor four: Google’s concededly
`“competing” product harmed Java
`SE in actual and potential markets. ..... 46
`C. Google’s additional considerations
`cannot establish fair use. ............................ 49
`III. Google’s Policy Arguments Are Misplaced
`And Misguided. ................................................. 54
`CONCLUSION ........................................................ 58
`CONSTITUTIONAL AND STATUTORY
`ADDENDUM .................................................... 1a
`
`
`
`v
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`573 U.S. 208 (2014) .............................................. 26
`Atari Games Corp. v. Oman,
`888 F.2d 878 (D.C. Cir. 1989) .............................. 29
`Baker v. Selden,
`101 U.S. 99 (1880) .......................................... 24, 35
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) ...................................... passim
`
`Castle Rock Entm’t v. Carol Publ’g
`Grp., Inc.,
`955 F. Supp. 260 (S.D.N.Y. 1997) ................. 34, 49
`
`Chamberlain Grp., Inc. v. Skylink
`Techs., Inc.,
`381 F.3d 1178 (Fed. Cir. 2004) ............................ 52
`
`Country Shindig Opry, Inc. v. Cessna
`Aircraft Co.,
`780 F.2d 1408 (8th Cir. 1986) .............................. 50
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) ................................................3
`
`Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co.,
`499 U.S. 340 (1991) ............................ 21, 23, 28, 44
`
`
`
`vi
`
`Folsom v. Marsh,
`9 F. Cas. 342 (C.C. Mass. 1841) .................... 36, 37
`
`Fourth Estate Pub. Benefit Corp. v.
`Wall-Street.com, LLC,
`139 S. Ct. 881 (2019) ............................................ 29
`Golan v. Holder,
`565 U.S. 302 (2012) .............................................. 23
`Harper & Row Publ’rs, Inc. v. Nation Enters.,
`471 U.S. 539 (1985) ...................................... passim
`Infinity Broad. Corp. v. Kirkwood,
`150 F.3d 104 (2d Cir. 1998) ................................. 53
`Jacobsen v. Katzer,
`535 F.3d 1373 (Fed. Cir. 2008) ............................ 56
`Kienitz v. Sconnie Nation LLC,
`766 F.3d 756 (7th Cir. 2014) ................................ 42
`Lexmark Int’l, Inc. v. Static Control
`Components, Inc.,
`387 F.3d 522 (6th Cir. 2004) ................................ 45
`Mazer v. Stein,
`347 U.S. 201 (1954) .............................. 3, 24, 26, 35
`Nichols v. Universal Pictures Corp.,
`45 F.2d 119 (2d Cir. 1930) ............................. 21, 34
`
`Reeves v. Sanderson Plumbing
`Prods., Inc.,
`530 U.S. 133 (2000) .............................................. 38
`
`
`
`vii
`
`Sid & Marty Krofft Television Prods.,
`Inc. v. McDonald’s Corp.,
`562 F.2d 1157 (9th Cir. 1977) .............................. 29
`
`Sony Comput. Entm’t, Inc. v. Connectix
`Corp.,
`203 F.3d 596 (9th Cir. 2000) .......................... 43, 56
`
`Sony Corp. of Am. v. Universal City
`Studios, Inc.,
`464 U.S. 417 (1984) ........................................ 37, 57
`Southco, Inc. v. Kanebridge Corp.,
`390 F.3d 276 (3d Cir. 2004) ................................. 22
`Stewart v. Abend,
`495 U.S. 207 (1990) ........................................ 37, 47
`
`Sun Microsystems, Inc. v. Microsoft
`Corp.,
`87 F. Supp. 2d 992 (N.D. Cal. 2000).................... 50
`TCA Television Corp. v. McCollum,
`839 F.3d 168 (2d Cir. 2016) ........................... 38, 42
`
`U.S. Bank Nat’l Ass’n v. Village at
`Lakeridge, LLC,
`138 S. Ct. 960 (2018) ............................................ 37
`Wood v. Milyard,
`566 U.S. 463 (2012) .............................................. 22
`Constitutional Provisions
`U.S. Const. art. I, §8, cl. 8 ......................................... 58
`
`
`
`viii
`
`Statutes & Regulations
`17 U.S.C. §101 ....................... 20, 21, 25, 26, 27, 40, 44
`17 U.S.C. §102(a) ................... 17, 20, 21, 23, 26, 28, 29
`17 U.S.C. §102(b) ......................... 16, 17, 23, 24, 25, 26
`17 U.S.C. §106(2) ....................................................... 40
`17 U.S.C. §107 ................................... 36, 37, 42, 43, 49
`17 U.S.C. §107(1) ................................................. 39, 53
`17 U.S.C. §107(4) ....................................................... 53
`17 U.S.C. §109(b) ....................................................... 21
`17 U.S.C. §117 ............................................... 21, 36, 51
`17 U.S.C. §302(a) ....................................................... 29
`17 U.S.C. §410(a) ....................................................... 29
`17 U.S.C. §506(a) ....................................................... 21
`17 U.S.C. §1201(f) ............................................... 36, 51
`37 C.F.R. §202.1(a) .................................................... 23
`
`Legislative Materials
`H.R. Rep. No. 94-1476 (1976) ............................. 25, 37
`
`
`
`ix
`
`Other Authorities
`Nick Clark, How did they bring the
`‘unfilmable’ Life of Pi to our
`screens?, Independent, Dec. 8, 2012,
`https://tinyurl.com/tr8y562.................................. 43
`Jane C. Ginsburg, Four Reasons and a
`Paradox: The Manifest Superiority of
`Copyright Over Sui Generis
`Protection of Computer Software, 94
`Colum. L. Rev. 2559 (1994) ................................. 26
`Pierre N. Leval, Toward a Fair Use
`Standard, 103 Harv. L. Rev. 1105
`(1990) .............................................................. 42, 51
`Arthur R. Miller, Copyright Protection
`for Computer Programs, Databases,
`and Computer-Generated Works: Is
`Anything New Since CONTU?, 106
`Harv. L. Rev. 977 (1993) .............. 27, 33, 44, 55, 56
`Nat’l Comm’n on New Tech. Uses of
`Copyrighted Works, Final Report
`(1979) .............................................................. 27, 30
`Melville B. Nimmer & David Nimmer,
`Nimmer on Copyright .............................. 21, 48, 51
`William F. Patry, Patry on Copyright ................ 21, 29
`William F. Patry, The Fair Use
`Privilege in Copyright Law (1985) ................ 50, 51
`
`
`
`x
`
`U.S. Copyright Office, Compendium of
`U.S. Copyright Office Practices (3d
`ed. 2017), https://ti-
`nyurl.com/y742m3zn ............................................ 40
`Daisuke Wakabayashi, Prime Leverage:
`How Amazon Wields Power in the
`Technology World, N.Y. Times, Dec.
`15, 2019, https://tinyurl.com/vsjhwc3 ................. 57
`
`
`
`1
`
`INTRODUCTION
`Google has a problem. It committed an egregious
`act of plagiarism and now needs to rewrite copyright
`law to justify it. It cannot.
`Java SE was one of the most creative and intri-
`cately designed works of software ever written. Its el-
`egance attracted a wide audience of developers.
`Manufacturers of all sorts of devices and competing
`platform makers clamored to license the Java SE plat-
`form. Innovation flourished, just as the Framers im-
`agined, and just as the rest of the American software
`industry thrived under those same constitutional in-
`centives.
`Google wanted its own platform. Given its vast re-
`sources, it could certainly have written one. But with
`a looming existential crisis, there was no time to in-
`novate. Google could have taken any of the several
`Java SE licenses Oracle offered, but Google rejected
`Oracle’s compatibility imperative as inconsistent with
`its commercial objectives.
`So Google opted to plagiarize and take the risk.
`Google copied 11,330 lines of computer code from Java
`SE, as well as the intricate organization and relation-
`ships among the lines of code. Google put the code in
`its competing product, Android, and successfully
`pitched it to Oracle’s customers, generating billions of
`dollars in revenue.
`Unauthorized copying into a competing product at
`this scale is clear-cut copyright infringement. If
`
`
`
`2
`
`Google had taken 11,330 topic sentences from an en-
`cyclopedia or the entire structure of a treatise to com-
`pete with the original, Google could not credibly argue
`that what it took was devoid of copyright protection
`or fair to copy.
`Software is no different. Congress chose to treat
`software the same as any “literary work.” All that
`matters for copyrightability is that the code or struc-
`ture Google copied was original expression, which
`Google conceded each was. And all that matters for
`fair use is that Google used the code for the same pur-
`pose in a competing product for commercial ad-
`vantage, which Google also conceded.
`So Google tries to change the law. First, Google
`carves out from copyright protection a category of
`computer code that it vaguely calls “interfaces.” But
`the Copyright Act rejects distinctions between kinds
`of code. Second, Google argues that it “needed” to use
`Oracle’s code to appeal to what was familiar to Ora-
`cle’s audience of app developers. But Google conceded
`below that it could have created Android in the Java
`programming language without copying any of those
`11,330 lines. No legal principle justifies copying a
`work merely because it is popular with an audience
`that a competitor wants to capture.
`Google protests that the decisions below defied
`“settled expectations” and threaten the software in-
`dustry. But the U.S. software sector has risen to dom-
`inance because of copyright protection, not piracy. The
`real “settled expectation” is the Copyright Act’s con-
`stitutionally inspired imperative to reward authors’
`
`
`
`3
`
`“individual effort by personal gain.” Eldred v. Ash-
`croft, 537 U.S. 186, 212 n.18 (2003) (quoting Mazer v.
`Stein, 347 U.S. 201, 219 (1954)). Accepting Google’s
`invitation to second-guess Congress’s judgment is
`what will upset the status quo and jeopardize innova-
`tion.
`This Court should affirm.
`
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`Relevant constitutional and statutory provisions
`are reproduced in the appendix to this brief.
`
`STATEMENT OF THE CASE1
`Sun Develops Java SE To Help Developers Write
`Their Own Applications
`The Java 2 Standard Edition Platform (“Java
`SE”) is one of the most popular and revolutionary
`works of software ever written. Pet. App. 4a. Its audi-
`ence is developers who use the platform to help them
`write programs (“apps”). Its customers are manufac-
`turers that license and install the platform on devices
`to run those apps. Sun was the original author; Oracle
`continued the work after acquiring Sun.
`
`1 “GB” is Google’s brief. The Joint Appendix and Supple-
`mental Joint Appendix are “JA” and “SJA.” The United States’
`invitation brief is “U.S. Cert. Br.” Other amicus briefs are cited
`as “___ Br.” Statutory citations are to Title 17.
`
`
`
`4
`
`Before Java SE, an app typically would not run
`across myriad devices with different operating sys-
`tems, like Windows and Mac. App developers had to
`rewrite their apps for each. Pet. App. 5a. Java SE
`eliminated that inefficiency by enabling apps written
`using it to run across operating systems and devices.
`Hence Sun’s credo: “write once, run anywhere.” Id.
`To create Java SE, Sun crafted a collection of
`ready-to-use programs, essentially modules that de-
`velopers can incorporate in their own apps. Pet. App.
`4a. Each individual program, called a “method,” per-
`forms a discrete function, like drawing a shape, en-
`crypting text, or solving a type of math problem. Id.
`Sun organized the methods into an intricate collection
`of “classes” that group related methods and define
`unique data types on which methods operate, and
`“packages” that group related classes. Id. Sun also
`created connections called “interfaces” among related
`methods across packages and classes (not to be con-
`fused with what Google calls “interfaces”). Pet App.
`224a.
`Sun created over 30,000 methods organized in
`3000 classes and 166 packages. Pet. App. 5a. These
`programs save developers time. Pet. App. 4a. But de-
`velopers don’t have to use them; they can “write their
`own code” in the Java language “to perform those
`functions.” Id. (quotation marks omitted).
`Google’s “Java guru” described writing and organ-
`izing the programs as “very much a creative process.”
`JA318-319; Pet. App. 140a-141a, 229a. Like an author
`crafting a treatise with 30,000 paragraphs, Java SE’s
`authors had “unlimited options” as to what to include
`and how to describe and organize it all. Pet. App.
`
`
`
`5
`
`150a; JA411-414. No specific approach was required.
`Pet. App. 165a. The design teaches programmers how
`to find, use, and remember the programs.
`This case is about Google’s copying of 11,330 lines
`of Java SE code and its elaborate organization.
`1. The 11,330 lines Google copied are human-
`readable computer code (“source code”). Those lines
`would consume roughly 600 Joint Appendix pages.
`The parties have labeled this code “declaring code” (or
`“declarations”), as distinguished from “implementing
`code.” The computer processes (“compiles”) and reads
`both declaring and implementing code. Pet. App.
`223a-224a. Both are necessary to instruct the com-
`puter. Id.
`There are two differences. First, declaring code is
`like topic sentences and chapter and section headings,
`while implementing code serves as the body of para-
`graphs. Pet. App. 4a-5a. Second, only the declaring
`code must appeal to a human audience. It is the only
`code in Java SE that app developers see. Pet. App.
`102a. The declarations memorably and vividly ex-
`plain to app developers what each method and class
`does, how the computer will use it, and how it relates
`to other parts of Java SE. JA373-375 (stipulation).
`For example, here is the declaring code for a method
`called “verify” that uses a security key to determine
`whether a signature is valid:
`
`
`
`6
`
`public boolean verify (PublicKey
`verificationKey, Signature verificationEngine)
`throws InvalidKeyException,
`SignatureException
`
`This code tells the developer not just, “This is a
`method called ‘verify,’” but also how to use it. In plain
`English, it says:
`Give me a security key (which I’ll call “verifica-
`tionKey”) that you want me to use to verify a sig-
`nature that you previously gave me.
`
`Also tell me the algorithm I should use to verify the
`key (I’m calling that “verificationEngine”).
`
`Caution: You can’t just give me any algorithm. The
`algorithm must meet specified requirements that
`you can find elsewhere (a class I call “Signature”).
`
`There are two ways this might not work (“excep-
`tions”)—the key might be wrong (“InvalidKeyEx-
`ception”) or the algorithm might be wrong
`(“SignatureException”).
`
`If so, I’ll give you an error message.
`
`If the signature is valid, I’ll say, “True” (that’s
`what “boolean” means).
`No file label does all of that. JA414-417.
`Every aspect of that instruction was a creative
`choice that could have been written countless ways.
`Pet. App. 228a. Sun could have called the method
`“checkSignature,” “analyze,” “confirm,” “check,” or
`
`
`
`7
`
`something more fanciful. Pet. App. 226a. So too for the
`name of every input and error message—and even
`whether to include error messages or impose special
`requirements for the algorithm, what they would be,
`and where to find them. Id.
`No wonder Google’s “Java guru” described the
`process of crafting just the declaring code as “an art,
`not a science,” JA517-522, distinguished by “the com-
`plexity of figuring out how best to express what it is
`that the programmer wants done,” JA380 (emphasis
`added). He conceded that “there can be ‘creativity and
`artistry even in a single method declaration,’” Pet.
`App. 154a, just as there can be artistry in a single
`topic sentence.
`Every line reflects multiple choices like these.
`Java SE’s authors struggled for years with those sorts
`of creative choices for each of its 166 packages, 3000
`classes, and 30,000 methods. Pet. App. 5a; JA311-313.
`2. Whether in the Java language or the English
`language, writing good sentences is only part of the
`creative process. All authors struggle with how to or-
`ganize and build connections among parts of their
`written works to make them more appealing to their
`audience.
`Java SE’s authors wrestled with the same organ-
`izational choices. A computer would run fine if the au-
`thors had dumped 30,000 programs in one class.
`JA417-418; Pet. App. 265a. But that would not appeal
`to its audience any more than a treatise with 30,000
`random and unconnected paragraphs. JA417-419.
`Java SE’s authors had countless creative choices to
`
`
`
`8
`
`make about how to group methods into classes (sub-
`classes, sub-subclasses, etc.) and classes into pack-
`ages, and what relationships and interdependencies
`to build between programs. Pet. App. 140a-141a.
`Those choices reflect the authors’ creativity and
`unique view of what groupings and relationships
`would be best.
`Figure 1 depicts the unique organization the au-
`thors chose for one of the packages: “java.security.”
`That package organizes classes and methods that the
`authors considered security-related. The tiny colored
`lines on the right represent 362 methods each per-
`forming a discrete function. The lengthy declaring
`code for “verify,” for example, is represented by the
`tiny line with the arrow next to it. The indented
`names on the left are the classes, subclasses, etc. in
`which the authors grouped related methods in in-
`creasing levels of specificity. Nothing precluded the
`authors from putting a method into a different class,
`dividing the methods and classes across multiple
`packages with more granular security themes, com-
`bining other security-themed packages to make a
`larger package, or having no security theme. Pet. App.
`140a-141a. See also SJA3-19 (displaying organiza-
`tion, including inter-package relationships for 34 of
`the packages Google copied).
`
`
`
`9
`
`Figure 1
`
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`
`
`
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`'0‘momma-manna
`
`
`
`10
`
`Figure 1 omits an additional layer of complexity:
`the numerous relationships cutting across packages
`and classes that combine features in useful ways. Fig-
`ure 2 shows these relationships as gray lines connect-
`ing the clusters of blue classes and green interfaces,
`further illustrating the authors’ numerous expressive
`choices embodied in the structure of Java SE. JA420-
`425.
`
`Figure 2
`
`SJA1.
`
`
`
`11
`
`That is no filing cabinet. And all these creative
`choices—both writing the declaring code and organiz-
`ing the programs—were critical to Java SE’s success.
`“[Q]uality” choices attract app developers. JA388-389
`(Google’s expert); JA517-521. Sun/Oracle invested
`hundreds of millions of dollars to deliver that quality.
`JA297-298, 307-308.
`Sun Licenses Java SE, Including Just Declaring
`Code And Organization
`The quality of Sun’s code and its broad licensing
`program spurred boundless innovation. It attracted
`six million developers and propelled the Java plat-
`form to become “the leading platform for developing
`and running apps on mobile phones,” tablets, and per-
`sonal computers. Pet. App. 6a. By 2005, the Java plat-
`form was in over a billion mobile handsets including
`Samsung, Motorola, and ZTE, JA392, 500, adapting
`to each new generation of devices. JA501. Danger’s T-
`Mobile Sidekick, a smartphone comparable to the
`early Android devices, used Java SE. Pet. App. 35a;
`JA359-360. So did Amazon’s Kindle. Pet. App. 50a.
`As mobile devices were becoming “as powerful as
`yesterday’s computers,” JA498, Sun was exploring a
`next-generation upgrade based on Java SE. JA227,
`535-537. It licensed other companies, like SavaJe, to
`do the same. Pet. App. 50a-51a; JA429-430.
`Sun/Oracle developed a licensing framework to
`suit all sorts of users and uses. They never charged
`app developers, who can take a free license to create
`apps for Java SE. Pet. App. 5a-6a.
`
`
`
`12
`
`To recoup its investment, Sun/Oracle offered a va-
`riety of licenses to device manufacturers and compet-
`ing platform developers (usually large companies) to
`enable devices to run the apps. These options were all
`available to Google:
` Free license. This “open-source” license (to a
`version called “OpenJDK”) is free of charge, but the
`licensee and sublicensees must give back their
`improvements to the public in return. Pet. App.
`5a-6a.
`
` Declaring-code license. This “specification”
`license
`for only
`the declaring
`code and
`organization was used by big software companies
`such as IBM, SAP, Red Hat, and Oracle (pre-
`acquisition) who then “reimplemented” the rest.
`JA301-302, 304, 402-407. Google ignores this
`license when it says Sun “never sold or licensed
`separately” just the declaring code. GB43.
`
`licensed the
` Full-platform license. Others
`entirety of Java SE, including its implementing
`code, under a “commercial license.” Pet. App. 127a.
`
`To retain “write once, run anywhere,” the latter two
`licenses require
`licensees to prove that their
`platforms are compatible with Java SE. Pet. App.
`127a-128a.
`
`Google Copies 11,330 Lines Of Declaring Code
`And The Organization Of Java SE
`In 2005, Google faced an existential crisis. It was
`poised to lose a “significant share of an increasingly
`important portion of the [search] market” if it did not
`
`
`
`13
`
`quickly develop technologies for mobile devices.
`JA547 (Google 10K). Google’s solution was a mobile-
`device platform called Android. Google knew a suc-
`cessful platform required quality prewritten pro-
`grams. GB3.
`Google tried to develop prewritten programs from
`scratch, as Apple and Microsoft had. Pet. App. 149a &
`n.5. But it struggled to write declarations as elegant
`as Java SE’s. After Apple’s iPhone launch, Google was
`“beyond out of time,” but its versions were “half-ass at
`best.” JA506, 558 (internal emails).
`Google knew it could accelerate Android by copy-
`ing Java SE. Internal Google documents explain that
`copying Java SE’s declaring code and organization
`would let Google (1) drastically “reduce[] [Android’s]
`development time,” JA480; see JA489-490; (2) “lever-
`age” Java SE’s “6M[illion] Java developers” to build
`apps for Android, JA503, Pet. App. 172a; and (3) ap-
`peal to device manufacturers and mobile carriers.
`JA472-474, 482-483.
`The problem, as Android’s founder advised, was
`Sun’s “APIs are copyrighted.” JA492; see JA474, 478-
`479. Google could have taken the open-source license
`for free. But Google considered the give-back obliga-
`tion “unacceptable.” JA367, 557. Google sought a cus-
`tom license from Sun, but negotiations cratered when
`Google insisted on terms that would break “write-
`once, run anywhere.” Google demanded “no limits on
`modifying the code,” which guaranteed that Android
`would not be compatible with Java SE. Pet. App. 6a,
`128a. Sun refused. Nevertheless, “Google elected to
`
`
`
`14
`
`‘[d]o Java anyway,’” without a license, “making ene-
`mies along the way.” Pet. App. 6a-7a (quoting Android
`founder).
`“Google copied verbatim the declaring code of the
`37 Java API packages—11,500 lines of [Sun’s] copy-
`righted code.” Pet. App. 7a.2 Google also copied the
`structure and arrangement of those packages. JA372-
`377 (stipulation); JA95.
`The packages Google copied were “central” and
`“important” to Java SE, JA426; SJA2—the packages
`“Google believed Java application programmers
`would want to find” in Android. Pet. App. 219a.
`Google then “paraphrased the remainder,” Pet. App.
`140a, partially writing its own implementing code,
`but largely copying from others, JA361-362.
`For all Google’s extolling the virtues of interoper-
`ability, it bears emphasis: Google admitted that it
`purposely made Android incompatible with Java. Pro-
`grams written for Android cannot run on the Java
`platform and vice versa. Pet. App. 46a & n.11.
`Android Competes Directly With Java SE
`Android’s founder testified that, overnight, An-
`droid became a “competitor” to Java SE, “targeting
`the same industry with similar products.” JA366; see
`Pet. App. 50a-53a. But Google gave Android away for
`free. GB9. It did not need licensing revenue; Google
`
`2 The parties stipulated that 170 lines were necessary to use
`the Java language. Pet. App. 45a; JA386-387 (Google technical
`expert). Those lines are no longer in the case, leaving 11,330
`lines.
`
`
`
`15
`
`makes billions selling advertising based on users’ per-
`sonal information. JA345-346.
`Google pitched Oracle’s code as a selling point to
`handset makers and cellular carriers—including Or-
`acle’s own customers—touting Android’s “Core Java
`Libraries,” “Java API,” and “Powerful, Simple Java
`Application Framework.” E.g., JA590-591 (Qual-
`comm); JA596-597 (LG); JA598, 600 (AT&T). Oracle
`“customers switched to Android.” Pet. App. 7a. For ex-
`ample, Amazon ping-ponged between Java and An-
`droid and then leveraged Android to force Oracle to
`reduce its price by 97.5%. Pet. App. 51a, JA395-397,
`438-440. Android competed with Java-SE-powered
`products, like Danger and SavaJe. Pet. App. 50a;
`JA584.
`Android is now the dominant platform in mobile
`devices, JA465-466; Pet. App. 7a. As Oracle’s CEO
`vividly put it: It’s “very difficult to compete with free,
`especially since they were using our software.” JA397-
`398.
`The Court Of Appeals Finds Google Unfairly
`Copied Copyrightable Code
`Oracle sued Google for copyright infringement.
`Pet. App. 1a-2a. The jury found Google infringed, but
`hung on whether Google’s use was fair. Pet. App.
`130a-131a. After trial, the district court found that
`the declaring code and organization were both “crea-
`tive” and “original” but nevertheless held they were
`not copyrightable. Pet. App. 141a, 165a-166a.
`The Court of Appeals unanimously reversed. Pet.
`App. 123a. The court found it “well established that
`
`
`
`16
`
`copyright protection [for computer programs] can ex-
`tend to” both their code and their structure and or-
`ganization. Pet. App. 139a. The court rejected
`Google’s argument that the declaring code’s original
`expression “merge[d]” with unprotectable ideas. Pet.
`App. 150a-152a. There could be “no merger” because
`Java SE’s authors had “unlimited options” in writing
`and organizing the declaring code. Pet. App. 150a-
`151a. The court rejected Google’s argument that the
`organization is an unprotectable “method of opera-
`tion” under §102(b), finding it contrary to the statu-
`tory text and this Court’s precedent. Pet. App. 158a-
`166a. The Court of Appeals remanded on fair use, Pet.
`App. 184a, and the jury found for Google.
`With a full (and different) record on fair use before
`it, Pet. App. 24a-25a, the Court of Appeals again
`unanimously reversed, finding no fair use as a matter
`of law. The court “assume[d] that the jury resolved all
`factual issues relating to the historical facts in favor
`of the verdict” and carefully analyzed each of the four
`fair-use factors in light of those historical facts. Pet.
`App. 23a. The court concluded that “allowing Google
`to commercially exploit Oracle’s work will not ad-
`vance the purposes of copyright” because Android is a
`“superseding use” that “effectively replaced Java SE
`… and prevented Oracle from participating in devel-
`oping markets.” Pet. App. 53a
`SUMMARY OF ARGUMENT
`I. Java SE’s declaring code and orga
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