No. 18-956
`In the Supreme Court of the United States
`
`
`
`GOOGLE LLC, PETITIONER
`v.
`ORACLE AMERICA, INC.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`JOSEPH H. HUNT
`Assistant Attorney General
`MALCOLM L. STEWART
`Deputy Solicitor General
`MATTHEW GUARNIERI
`Assistant to the Solicitor
`General
`MARK R. FREEMAN
`DANIEL TENNY
`SONIA M. CARSON
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`GOOGLE LLC, PETITIONER
`v.
`ORACLE AMERICA, INC.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
` NOEL J. FRANCISCO
`Solicitor General
`Counsel of Record
`JOSEPH H. HUNT
`Assistant Attorney General
`MALCOLM L. STEWART
`Deputy Solicitor General
`MATTHEW GUARNIERI
`Assistant to the Solicitor
`General
`MARK R. FREEMAN
`DANIEL TENNY
`SONIA M. CARSON
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`The Copyright Act of 1976, 17 U.S.C. 101 et seq., pro-
`tects “original works of authorship,” 17 U.S.C. 102(a),
`including “computer program[s],” 17 U.S.C. 101. The
`Act specifies, however, that copyright protection does
`not “extend to any idea, procedure, process, system,
`method of operation, concept, principle, or discovery,
`regardless of the form in which it is described, explained,
`illustrated, or embodied in such work.” 17 U.S.C. 102(b).
`Under the “merger” doctrine, copyright protection also
`does not apply when an idea can be expressed in only a
`limited number of ways, such that the expression and
`idea “merge.” Finally, the Copyright Act provides that
`“the fair use of a copyrighted work * * * is not an in-
`fringement of copyright.” 17 U.S.C. 107.
`The questions presented are as follows:
`1. Whether Section 102(b) or the merger doctrine
`precludes copyright protection for respondent’s origi-
`nal computer code, which defines and organizes a set of
`functions that are useful in writing computer programs.
`2. Whether the court of appeals correctly held that
`no reasonable jury could find that petitioner’s verbatim
`copying of respondent’s original computer code into a
`competing commercial product was fair use.
`
`
`(I)
`
`
`
`TABLE OF CONTENTS
`
`Page
`Statement .................................................................................. 1
`Discussion .................................................................................... 10
`I. The copyrightability question does not warrant
`review .............................................................................. 11
`A. The court of appeals correctly held that
`neither Section 102(b) nor the merger
`doctrine forecloses copyright protection .............. 11
`B. Further review is not warranted ........................... 15
`II. The fair-use question does not warrant review .......... 17
`A. The court of appeals correctly held that no
`reasonable jury could find fair use on this
`record ....................................................................... 17
`B. The court of appeals’ fact-bound decision on
`fair use does not warrant further review .............. 21
`Conclusion ............................................................................... 23
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`American Broad. Cos. v. Aereo, Inc.,
`573 U.S. 431 (2014).............................................................. 21
`Atari Games Corp. v. Nintendo of Am. Inc.,
`975 F.2d 832 (Fed. Cir. 1992) ............................................. 19
`Baker v. Selden, 101 U.S. 99 (1880) ..................................... 14
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994)..................................................... passim
`Disney Enters., Inc. v. VidAngel, Inc.,
`869 F.3d 848 (9th Cir. 2017) ............................................... 19
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340 (1991)...................................................... 1, 8, 11
`Golan v. Holder, 565 U.S. 302 (2012) ............................... 2, 12
`Harper & Row, Publishers, Inc. v. Nation Enters.,
`471 U.S. 539 (1985)........................................................ 18, 22
`
`(III)
`
`
`
`IV
`
`Page
`
`Cases—Continued:
`Lexmark Int’l, Inc. v. Static Control Components,
`Inc., 387 F.3d 522 (6th Cir. 2004) ................................ 15, 16
`Lotus Dev. Corp. v. Borland Int’l, Inc.,
`49 F.3d 807 (1st Cir. 1995), aff ’d by an equally
`divided Court, 516 U.S. 233 (1996) .............................. 15, 16
`Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366
`(10th Cir. 1997) ...................................................................... 2
`Roth Greeting Cards v. United Card Co.,
`429 F.2d 1106 (9th Cir. 1970) ............................................. 15
`Sega Enters. Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir. 1993) ............................................. 19
`Situation Mgmt. Sys. v. ASP Consulting LLC,
`560 F.3d 53 (1st Cir. 2009) ................................................. 16
`Sony Computer Entm’t, Inc. v. Connectix Corp.,
`203 F.3d 596 (9th Cir. 2000) ............................................... 19
`Sony Corp. of Am. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984).............................................................. 22
`TCA Television Corp. v. McCollum, 839 F.3d 168
`(2d Cir. 2016), cert. denied, 137 S. Ct. 2175 (2017) .......... 18
`Twin Peaks Prods., Ltd. v. Publications Int’l, Ltd.,
`996 F.2d 1366 (2d Cir. 1993) ................................................ 2
`Zalewski v. Cicero Builder Dev., Inc.,
`754 F.3d 95 (2d Cir. 2014) .............................................. 2, 13
`
`Statutes, regulation, and rule:
`Copyright Act of 1976, 17 U.S.C. 101 et seq. ......................... 1
`17 U.S.C. 101 ............................................................ 1, 4, 11
`17 U.S.C. 102(a) ................................................. 1, 8, 11, 12
`17 U.S.C. 102(a)(1) ............................................................. 1
`17 U.S.C. 102(b) ........................................ 2, 7, 8, 12, 15, 16
`17 U.S.C. 106(1) ................................................................. 3
`17 U.S.C. 106(2) ........................................................... 3, 18
`
`
`
`
`
`V
`
`Page
`Statutes, regulation, and rule—Continued:
`17 U.S.C. 107 .......................................................... 3, 17, 18
`17 U.S.C. 107(1) ................................................................. 9
`17 U.S.C. 107(1)-(4) ..................................................... 3, 17
`17 U.S.C. 107(2) ........................................................... 9, 21
`17 U.S.C. 107(3) ............................................................... 10
`17 U.S.C. 107(4) ................................................................. 9
`17 U.S.C. 109(b)(1)(A) ....................................................... 4
`17 U.S.C. 117 ................................................................ 4, 11
`17 U.S.C. 302 .................................................................... 15
`17 U.S.C. 506(a)(3)(A) ....................................................... 4
`17 U.S.C. 1201(f ) .............................................................. 20
`17 U.S.C. 1201(f )(4) ......................................................... 20
`28 U.S.C. 1295(a)(1) ................................................................. 8
`37 C.F.R. 202.1(a) .................................................................. 15
`Sup. Ct. R. 10(a) ..................................................................... 21
`
`Miscellaneous:
`H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) ............ 2, 11
`1 Melville B. Nimmer & David Nimmer, Nimmer on
`Copyright (2019) ................................................................... 4
`U.S. Copyright Office, Software-Enabled Consumer
`Products (2016), https://go.usa.gov/xVNyD .................... 19
`
`
`
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
`No. 18-956
`GOOGLE LLC, PETITIONER
`v.
`ORACLE AMERICA, INC.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
`This brief is submitted in response to the Court’s or-
`der inviting the Solicitor General to express the views
`of the United States. In the view of the United States,
`the petition for a writ of certiorari should be denied.
`STATEMENT
`1. a. The Copyright Act of 1976, 17 U.S.C. 101 et seq.,
`provides that “[c]opyright protection subsists * * * in
`original works of authorship.” 17 U.S.C. 102(a). Works
`of authorship include “literary works,” which are
`“works, other than audiovisual works, expressed in
`words, numbers, or other verbal or numerical symbols
`or indicia.” 17 U.S.C. 101, 102(a)(1). To be “original” in
`the relevant sense, a work must have been “indepen-
`dently created by the author (as opposed to copied from
`other works)” and must “possess[] at least some mini-
`mal degree of creativity.” Feist Publ’ns, Inc. v. Rural
`Tel. Serv. Co., 499 U.S. 340, 345 (1991). The copyright
`
`(1)
`
`
`
`2
`
`in an original literary work encompasses both its literal
`aspects (i.e., the actual text) and its original non-
`literal aspects, such as the plot of a novel. See, e.g.,
`Twin Peaks Prods., Inc. v. Publications Int’l, Ltd., 996
`F.2d 1366, 1372-1373 (2d Cir. 1993).
`The Copyright Act limits the scope of the rights con-
`ferred by a copyright. As particularly relevant here,
`Section 102(b) states that copyright protection does not
`“extend to any
`idea, procedure, process, system,
`method of operation, concept, principle, or discovery,
`regardless of the form in which it is described, ex-
`plained,
`illustrated, or embodied
`in such work.”
`17 U.S.C. 102(b). For example, a copyright for a book
`that explains how to perform a new surgical method
`would bar others from copying the book without author-
`ization, but not from performing the surgical method.
`Section 102(b) codifies the longstanding common-law
`principle known as the “idea/expression dichotomy.”
`Golan v. Holder, 565 U.S. 302, 328 (2012); see H.R. Rep.
`No. 1476, 94th Cong., 2d Sess. 56-57 (1976) (1976 House
`Report).
`Other common-law doctrines limit the copyrightabil-
`ity of certain expressive works. Under the “ ‘merger
`doctrine,’ ” if an idea “can only be expressed in a limited
`number of ways,” those means of expression “cannot be
`protected, lest one author own the idea itself.” Zalew-
`ski v. Cicero Builder Dev., Inc., 754 F.3d 95, 102-103 (2d
`Cir. 2014). In that circumstance, the idea and the ex-
`pression are said to “merge.” Similarly, the doctrine of
`scènes-à-faire teaches that elements of a work that are
`“standard, stock, or common to a topic,” like cowboys
`and shootouts in stories of the American West, are not
`copyrightable. Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366,
`1374 (10th Cir. 1997); see Zalewski, 754 F.3d at 102.
`
`
`
`
`
`3
`
`b. A valid copyright gives the owner certain “exclu-
`sive rights,” including the rights “to reproduce the cop-
`yrighted work” and “to prepare derivative works based
`upon the copyrighted work.” 17 U.S.C. 106(1) and (2).
`But those rights are subject to limitations, including the
`“fair use” doctrine, see 17 U.S.C. 107, a “judge-made
`doctrine” that Congress codified in 1976. Campbell v.
`Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994). The
`fair-use doctrine permits certain uses of a copyrighted
`work when enforcing a copyright would “stifle the very
`creativity which [copyright] law is designed to foster.”
`Id. at 577 (citation omitted). The doctrine helps to re-
`solve “the inherent tension in the need simultaneously
`to protect copyrighted material and to allow others to
`build upon it.” Id. at 575. Section 107 identifies a non-
`exclusive list of factors that are relevant to whether a
`particular use of a copyrighted work constitutes “fair
`use”: (1) “the purpose and character of the use,” (2) “the
`nature of the copyrighted work,” (3) “the amount and
`substantiality of the portion used in relation to the cop-
`yrighted work as a whole,” and (4) “the effect of the use
`upon the potential market for or value of the copy-
`righted work.” 17 U.S.C. 107(1)-(4).
`c. This case concerns the copyrightability of com-
`puter code. To induce a computer to perform a function,
`a person must give the computer written instructions.
`Typically, those instructions are written in “source
`code,” which consists of words, numbers, and symbols
`in a particular “programming language,” which has its
`own syntax and semantics. The source code is then con-
`verted into binary “object code”—ones and zeros—that
`is readable by the computer.
`
`
`
`
`
`4
`
`It is both “firmly established” and undisputed in this
`case that computer code can be copyrightable as a “lit-
`erary work[].” 1 Melville B. Nimmer & David Nimmer,
`Nimmer on Copyright § 2A.10[B] (2019). Section 101
`defines a “computer program” as “a set of statements
`or instructions to be used directly or indirectly in a com-
`puter in order to bring about a certain result.”
`17 U.S.C. 101. And various Copyright Act provisions
`recognize that a person may own a copyright in a “com-
`puter program.” See, e.g., 17 U.S.C. 109(b)(1)(A), 117,
`506(a)(3)(A).
`2. a. Respondent’s predecessor-in-interest created
`the Java programming language. It then developed a
`variety of tools and software—known collectively as the
`“Java platform”—to assist programmers in writing and
`distributing computer programs in Java. Pet. App. 4a.
`Like many programming languages, Java allows pro-
`grammers to use short, modular subprograms to create
`longer, more complex computer programs. For exam-
`ple, in creating a video game, a programmer might cre-
`ate subprograms to perform tasks such as displaying
`text on the screen or playing a sound. In Java, these
`subprograms are called “methods.” Pet. App. 125a. Re-
`spondent’s predecessor-in-interest created a “Standard
`Library” of thousands of prewritten methods, which
`have been organized into “classes,” which in turn are
`organized into “packages.” Ibid. The version of the
`Standard Library at issue in this case, Java SE, in-
`cludes 166 packages, comprising more than 600 classes
`and more than 6000 methods. See id. at 126a. Although
`a Java programmer can write new code from scratch
`without relying on prewritten methods, the Java Stand-
`ard Library provides convenient building blocks for
`writing computer programs.
`
`
`
`
`
`5
`
`Although respondent does not claim a copyright in
`the Java language itself, it owns a copyright in the Java
`Standard Library. Pet. App. 127a. Respondent makes
`the Java Standard Library available to computer pro-
`grammers under three copyright licenses, including
`royalty-free options. Ibid. For a commercial license,
`respondent requires the licensee to ensure that pro-
`grams it creates using the Java Standard Library can
`be run using the Java platform. Id. at 127a-128a.
`b. In general, to create a new Java method, a pro-
`grammer must write code that tells the computer both
`(i) what the method is, including its name, the circum-
`stances in which it should be available to programmers,
`what types of input data it should accept, what types of
`output data it should produce, and what types of errors
`it can generate; and (ii) how to perform the method, in-
`cluding steps for using the specified input data to pro-
`duce the specified type of output data. The parties refer
`to the first type of code as “declaring code” and to the
`second as “implementing code.” Pet. 5.
`An example drawn from the district court’s opinion
`illustrates the distinction. See Pet. App. 224a-225a.
`The following Java code defines a method named “max”
`that returns the larger of two integers, x and y:
`Line 1: public static int max (int x, int y) {
`Line 2: if (x > y) return x;
`Line 3: else return y;
`Line 4: }
`In this example, Line 1 is the “declaring code,” which
`tells the computer the name of the method (max); the
`circumstances in which the method is available to pro-
`grammers (public and static); the type of output data it
`produces (int, for an integer); and the type and order of
`
`
`
`
`6
`
`the input data it accepts (integer x and integer y). (Ad-
`ditional declaring code, not reproduced above, would
`place the method into a class and classes into a pack-
`age.) Lines 2-4 are the “implementing code,” which in-
`structs the computer how to use the input data to pro-
`duce the output data.
`Once a method has been written, a programmer may
`invoke or “call” the method by typing a command con-
`sisting of the name of the method and the appropriate
`input data. Although that command is determined by
`the method’s declaring code, it is not identical to the de-
`claring code. As a result of this structure, a program-
`mer can use the prewritten methods in respondent’s
`Java Standard Library without seeing or understand-
`ing the implementing code; the programmer need only
`know (or look up) the name of the relevant method and
`the parameters established by its declaring code.
`c. Petitioner developed the Android operating sys-
`tem for mobile devices. Petitioner also created its own
`platform—i.e., a set of programming tools—to assist
`others in developing applications for Android. The An-
`droid platform uses the Java programming language.
`As a result of petitioner’s design choices, however, ap-
`plications written for Android do not run on the Java
`platform, and vice versa. See Pet. App. 46a n.11, 130a,
`172a.
`Like the Java platform, petitioner’s Android plat-
`form contains a collection of prewritten methods orga-
`nized into classes and packages. Petitioner created
`much of the Android library from scratch. For 37 of the
`168 packages included in the Android library, however,
`petitioner copied the Java declaring code verbatim,
`while writing its own implementing code. Pet. App.
`129a. The copied packages contained the Java methods
`
`
`
`
`
`7
`
`and classes that petitioner viewed as most useful for de-
`veloping smartphone applications. See Pet. 25. Peti-
`tioner asserts that it copied the declaring code so that
`programmers familiar with the Java platform would be
`able to program for the Android platform without learn-
`ing new commands for invoking commonly used meth-
`ods. See Pet. 25-26.
`Petitioner copied 11,500 lines of respondent’s copy-
`righted code. Pet. App. 7a. In doing so, petitioner also
`copied the complex architecture of the 37 packages at
`issue, including the names and specifications of the
`thousands of methods and classes in those packages and
`their hierarchical and interdependent relationships to
`each other. See id. at 134a.
`3. In August 2010, respondent sued petitioner in the
`Northern District of California, alleging that petitioner
`had infringed respondent’s copyright in the Java Stand-
`ard Library and had also infringed related patents. Pet.
`App. 2a, 97a n.2. Respondent’s copyright-infringement
`claims ultimately proceeded on two theories: (i) literal,
`verbatim copying of the declaring code; and (ii) non-
`literal copying of the “structure, sequence, and organi-
`zation” (SSO) of the Java Standard Library, which the
`declaring code establishes and reflects. See id. at 2a,
`132a. The case proceeded to trial, and a jury found in-
`fringement but hung on fair use. Id. at 122a.
`The district court set aside the infringement verdict
`on the ground that respondent did not possess a valid
`copyright in the copied material. Pet. App. 212a-272a.
`The court held that, under Section 102(b), the SSO is
`ineligible for copyright protection because it constitutes
`a “method of operation” or “system” for using the pre-
`written subroutines included in the Java platform. Id.
`at 267a. The court also held that the merger doctrine
`
`
`
`
`
`8
`
`rendered the declaring code uncopyrightable. Id. at
`264a.
`The Federal Circuit, which had appellate jurisdiction
`because of petitioner’s since-abandoned patent claims,
`affirmed in part and reversed in part. Pet. App. 121a-
`192a; see 28 U.S.C. 1295(a)(1). Applying Ninth Circuit
`precedent (see Pet. App. 134a), the court of appeals held
`that the declaring code and the SSO were both “entitled
`to copyright protection,” despite their functional char-
`acter. Id. at 123a. The court explained that Section
`102(b) “ ‘restate[s] * * * the basic dichotomy between
`expression and idea,’ ” but does not “take[] * * * away”
`copyright protection from works that otherwise satisfy
`the criteria in Section 102(a). Id. at 141a (quoting Feist
`Publ’ns, 499 U.S. at 356). The court also held that nei-
`ther the merger nor the scènes-à-faire doctrine pre-
`cluded copyright protection, noting (among other
`things) that when respondent’s predecessor-in-interest
`created the Java Standard Library, it “had ‘unlimited
`options as to the selection and arrangement’ ” of the
`code that petitioner ultimately copied. Id. at 150a (cita-
`tion omitted); see id. at 156a-157a. Finally, the court
`remanded for a new trial on fair use. Id. at 191a.
`Petitioner sought this Court’s review on the question
`“[w]hether copyright protection extends to all elements
`of an original work of computer software * * * that an
`author could have written in more than one way.”
`14-410 Pet. i. This Court invited the Solicitor General
`to file a brief expressing the views of the United States,
`135 S. Ct. 1021, and the United States recommended
`that the petition be denied, see 14-410 U.S. Br. 10-11.
`This Court denied the petition. 135 S. Ct. 2887.
`4. On remand, a jury found that petitioner’s copying
`was fair use, and the district court denied respondent’s
`
`
`
`
`
`9
`
`post-trial motions for judgment as a matter of law. Pet.
`App. 9a; see id. at 57a, 92a-120a.
`A unanimous panel of the Federal Circuit reversed.
`Pet. App. 1a-55a. Again applying Ninth Circuit prece-
`dent (see id. at 12a), the court of appeals found that the
`first and fourth statutory fair-use factors—the “pur-
`pose and character of the use” and its “effect * * * upon
`the potential market for or value of the copyrighted
`work,” 17 U.S.C. 107(1) and (4)—both “weigh[ed] heav-
`ily against a finding of fair use.” Pet. App. 53a. The
`court determined that petitioner’s copying was “over-
`whelmingly commercial,” id. at 28a, and that petitioner
`had not made “transformative” use of the copied mate-
`rial, id. at 31a. In the court’s view, the declaring code
`was used to “perform the same functions in Android and
`Java,” ibid., and petitioner had not changed the copied
`code’s expressive content or message, id. at 33a-35a.
`With respect to the effect of the copying, the court
`noted “ ‘overwhelming’ ” record evidence that peti-
`tioner’s copying had inflicted “actual and potential
`harm” on the market for respondent’s work, including
`by enabling one of respondent’s customers to use the
`existence of petitioner’s Android platform as leverage
`“to negotiate a steep discount” for continuing to license
`the Java platform. Id. at 50a-51a (citation omitted).
`By contrast, the court of appeals viewed the “nature
`of the copyrighted work,” 17 U.S.C. 107(2), as support-
`ing the jury’s fair-use finding. The court explained that,
`although writing the declaring code and the SSO had
`“involved some level of creativity,” a reasonable jury
`“could have concluded that functional considerations
`were both substantial and important.” Pet. App. 42a.
`The court viewed the remaining fair-use factor—the
`
`
`
`
`
`10
`
`“amount and substantiality of the portion used in rela-
`tion to the copyrighted work as a whole,” 17 U.S.C.
`107(3)—as “at best[] neutral.” Pet. App. 47a; see id. at
`45a (noting that petitioner had “copied 11,500 lines of
`code,” and that “only 170 lines of code were necessary
`to write in the Java language”).
`“Weighing these factors together,” the court of ap-
`peals concluded that petitioner’s “use of the declaring
`code and SSO * * * was not fair as a matter of law.”
`Pet. App. 53a. The court emphasized, however, that its
`decision rested on the specific “facts relating to the cop-
`ying at issue here” and “this particular code.” Id. at 54a.
`DISCUSSION
`Petitioner’s first question presented is essentially
`identical to the question on which this Court previously
`denied certiorari. The United States continues to be-
`lieve that the court of appeals’ holding as to copyright-
`ability is correct, and that the question does not warrant
`this Court’s review. See 14-410 U.S. Br. 19-23.
`Petitioner’s second question presented (Pet. I) seeks
`review of the court of appeals’ determination that re-
`spondent was entitled to judgment as a matter of law on
`the issue of fair use. Although the question whether to
`grant judgment as a matter of law on this record is not
`free from doubt, the government agrees with that hold-
`ing as well. Petitioner copied 11,500 lines of computer
`code verbatim, as well as the complex structure and or-
`ganization inherent in that code, in order to help its
`competing commercial product. The record demon-
`strates, moreover, that petitioner’s unauthorized copy-
`ing harmed the market for respondent’s Java platform.
`In any event, the court of appeals’ holding on fair use
`was limited to the particular facts of this case; those
`
`
`
`
`
`11
`
`atypical facts make this an unsuitable vehicle for ad-
`dressing the application of copyright law to software
`generally; and no other considerations counsel in favor
`of granting review. The petition for a writ of certiorari
`therefore should be denied.
`I. THE COPYRIGHTABILITY QUESTION DOES NOT
`WARRANT REVIEW
`
`A. The Court Of Appeals Correctly Held That Neither
`Section 102(b) Nor The Merger Doctrine Forecloses
`Copyright Protection
`1. Various Copyright Act provisions make clear that
`a person may own a copyright in a “computer program.”
`17 U.S.C. 101 (defining “computer program” as “a set of
`statements or instructions to be used directly or indi-
`rectly in a computer in order to bring about a certain
`result”); see, e.g., 17 U.S.C. 117 (entitled “Limitations
`on exclusive rights: Computer programs”) (emphasis
`omitted). A computer program is “expressed in words,
`numbers, or other verbal or numerical symbols or indi-
`cia” and therefore fits comfortably within the Act’s def-
`inition of “[l]iterary works.” 17 U.S.C. 101; see 1976
`House Report 54; see also 14-410 U.S. Br. 11-12.
`To be copyrightable, any particular computer code
`must meet the basic requirements of copyright law, in-
`cluding originality, 17 U.S.C. 102(a). But petitioner
`does not dispute that both the 11,500 lines of declaring
`code and the structure, sequence, and organization
`(SSO) of the Java Standard Library meet the originality
`requirement, see Pet. App. 141a—i.e., that they possess
`the requisite “minimal degree of creativity,” Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345
`(1991).
`
`
`
`
`
`12
`
`2. Petitioner primarily contends (Pet. 16) that the
`declaring code is an uncopyrightable “method of opera-
`tion,” 17 U.S.C. 102(b), for accessing prewritten func-
`tions implemented in other code that petitioner did not
`copy. The court of appeals correctly rejected that argu-
`ment. Pet. App. 165a-166a.
`Section 102(b) codifies the “idea/expression dichot-
`omy,” Golan v. Holder, 565 U.S. 302, 328 (2012), under
`which a copyright in an “original work[] of authorship,”
`17 U.S.C. 102(a), covers only the expressive work
`itself—not the underlying ideas or methods of operation
`“described, explained, illustrated, or embodied” in the
`work, 17 U.S.C. 102(b). Although there is a sense in
`which all computer code could be described as a method
`of operating a computer, the Copyright Act as a whole
`makes clear that computer programs can be protected
`by copyright, refuting any suggestion that the func-
`tional character of computer code suffices to bring it
`within Section 102(b). See 14-410 U.S. Br. 13-14.
`Petitioner’s effort to distinguish the declaring code
`at issue here from other copyright-eligible computer
`code is unavailing. Petitioner asserts (Pet. 16) that, be-
`cause the declaring code dictates the commands that
`Java programmers must use to invoke prewritten meth-
`ods, the declaring code is the “method[] of operat[ing]”
`those methods, whereas the implementing code is not.
`That distinction does not withstand scrutiny. Both de-
`claring code and implementing code ultimately perform
`the same practical function: They instruct a computer
`to work. Both are necessary components of a Java or
`Android method. And neither is what a programmer
`physically types when invoking a method.
`Petitioner observes that “the actual processes or
`methods embodied in [a computer] program are not
`
`
`
`
`
`13
`
`within the scope of the copyright law.” Pet. 17 (citation
`omitted). But respondent is not asserting a copyright
`in abstract processes or methods, such as a method for
`selecting the larger of two integers. Without infringing
`any copyright, petitioner could and did write its own
`code to implement the same processes or methods. But
`petitioner also copied 11,500 lines of respondent’s de-
`claring code into Android, thereby replicating in its own
`program respondent’s creative expression in the text
`and architecture of the Java Standard Library.
`3. Petitioner contends (Pet. 17-21) that the merger
`doctrine precludes copyright protection for the declar-
`ing code. The court of appeals correctly rejected that
`argument. Pet. App. 147a-153a.1
`The merger doctrine reinforces the idea/expression
`dichotomy by precluding copyright when an idea can be
`expressed in only a limited number of ways. In that cir-
`cumstance, the idea and its expression “merge,” and the
`latter is uncopyrightable. Zalewski v. Cicero Builder
`Dev., Inc., 754 F.3d 95, 103 (2d Cir. 2014). That concern
`is not implicated here, since respondent’s predecessor-
`in-interest “had ‘unlimited options as to the selection
`and arrangement’ ’’ of the lines of code that petitioner
`copied. Pet. App. 150a (citation omitted).
`Petitioner suggests (Pet. 20) that the declaring code
`could be written “only in one way” after respondent’s
`predecessor-in-interest made certain conceptual deci-
`sions about the organization of the Java Standard Li-
`brary. Cf. Pet. Reply Br. 9. Even if that were true, it
`would show at most that the declaring code is the only
`way to express the SSO of the Java Standard Library.
`
`
`1 Petitioner’s earlier petition did not seek review of the court of
`appeals’ merger holding. See 14-410 U.S. Br. 22.
`
`
`
`
`14
`
`But the SSO is itself a copyrightable aspect of respond-
`ent’s original work of authorship—not an uncopyright-
`able idea that respondent is seeking to monopolize.
`Petitioner’s reliance (Pet. 17-19) on Baker v. Selden,
`101 U.S. 99 (1880), is thus misplaced. Baker involved a
`copyrighted book that explained a system of accounting
`and included forms for implementing the system. This
`Court held that the copyright in the book itself did not
`bar others from using substantially similar forms to
`practice the accounting method that the book described.
`Id. at 101, 104-105, 107. The premise of Baker was that
`the accounting method itself, unlike the SSO here, was
`not subject to copyright protection. And nothing about
`the Java language or the technical constraints of mobile
`devices compelled petitioner’s
`large-scale copying.
`“[O]nly 170 lines of code” are “necessary to write in the
`Java language,” Pet. App. 45a, and “Microsoft and Apple
`developed mobile operating systems from scratch, using
`their own array of software packages,” id. at 149a n.5.
`Petitioner also argues (Pet. 20-21) that the court of
`appeals erred by focusing on the choices available to re-
`spondent ex ante when it created Java, rather than on
`the choices available to petitioner when it sought to de-
`vise a way for programmers familiar with “industry-
`standard Java shorthand commands” (Pet. 27) to use
`those same commands in Android. Petitioner’s approach
`would treat the current popularity of respondent’s work
`among developers as retroactively divesting the work of
`copyright protection. The court below correctly rejected
`that approach, finding it “well-established that copy-
`rightability” should be “evaluated at the time of crea-
`tion.” Pet. App. 151a. Petitioner’s contrary view is at
`odds with the Copyright Act’s basic design, under which
`copyright protection subsists from the creation of a
`
`
`
`
`
`15
`
`work through the prescribed statutory term. 17 U.S.C.
`302.
`Finally, copying the complete text of the declaring
`code for 37 packages—comprising more than 11,500
`lines of code and reflecting the complex SSO of the Java
`Standard Library—constituted much more than merely
`replicating uncopyrightable names (Pet. 20; Pet. R
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