No. 18-956
`
`In the
`Supreme Court of the United States
`
`GOOGLE LLC,
`
`v.
`
`ORACLE AMERICA, INC.,
`
`Petitioner,
`
`Respondent.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the federal CirCUit
`
`BRIEF OF FORMER CONGRESSMEN AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`WIllIam a. Isaacson
`Counsel of Record
`BoIes schIller Flexner llP
`1401 New York Avenue, NW
`Washington, DC 20005
`(202) 237-2727
`wisaacson@bsfllp.com
`
`Counsel for Amici Curiae
`
`294179
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`In the
`Supreme Court of the United States
`
`GOOGLE LLC,
`
`v.
`
`ORACLE AMERICA, INC.,
`
`Petitioner,
`
`Respondent.
`
`On Writ Of CertiOrari tO the United StateS
`COUrt Of appealS fOr the federal CirCUit
`
`BRIEF OF FORMER CONGRESSMEN AS AMICI
`CURIAE IN SUPPORT OF RESPONDENT
`
`WIllIam a. Isaacson
`Counsel of Record
`BoIes schIller Flexner llP
`1401 New York Avenue, NW
`Washington, DC 20005
`(202) 237-2727
`wisaacson@bsfllp.com
`
`Counsel for Amici Curiae
`
`294179
`
`A
`
`(800) 274-3321 • (800) 359-6859
`
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`TABLE OF CONTENTS ............................................. i
`TABLE OF AUTHORITIES ...................................... iii
`INTEREST OF AMICI CURIAE ................................ 1
`SUMMARY OF ARGUMENT ..................................... 2
`ARGUMENT ............................................................... 5
`I. CONGRESS’S DECISION
`TO EXTEND
`COPYRIGHT PROTECTION TO COMPUTER
`PROGRAMS IS CONSISTENT WITH THE U.S.
`CONSTITUTION ................................................... 5
`II. THE LANGUAGE AND HISTORY OF THE
`COPYRIGHT ACT SHOW THAT COMPUTER
`PROGRAMS ARE ENTITLED TO FULL
`PROTECTION ....................................................... 8
`A. THE TEXT AND HISTORY OF THE ACT
`SHOW THAT CONGRESS ACCORDED
`DECLARING CODE FULL COPYRIGHT
`PROTECTION ................................................. 9
`1. LAWMAKERS AND CONTU MADE
`CLEAR THAT ORIGINAL EXPRESSION
`IN COMPUTER
`PROGRAMS
`IS
`COPYRIGHTABLE, WITH NO CARVE-
`OUT FOR A SUBSET OF SOFTWARE .......... 12
`
`
`
`
`
`
`
`
`
`
`
`ii
`
`2. THE LEGISLATIVE HISTORY ALSO
`DEMONSTRATES THAT COMPUTER
`PROGRAMS
`SHOULD NOT BE
`TREATED DIFFERENTLY UNDER THE
`FAIR-USE ANALYSIS .............................. 17
`B. GOOGLE’S
`ARGUMENTS
`AS
`TO
`COPYRIGHTABILITY AND FAIR USE FAIL
`IN LIGHT OF THE LANGUAGE AND
`HISTORY OF THE COPYRIGHT ACT ............... 19
`1. GOOGLE’S INTERPRETATION OF THE
`ACT AS TO THE COPYRIGHTABILITY OF
`ORACLE’S DECLARING CODE
`IS
`UNTENABLE ........................................... 19
`2. GOOGLE’S FAIR-USE ARGUMENTS
`ARE SIMILARLY WITHOUT MERIT .......... 21
`III.CONGRESS HAS A LONG TRADITION OF
`REVIEWING
`EXPANDING, NOT
`AND
`RETRACTING, COPYRIGHT TO PROMOTE
`INNOVATION AND COMPETITIVENESS ............... 22
`CONCLUSION .......................................................... 26
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`TABLE OF CITED AUTHORITIES
`
`Page(s)
`
`Cases
`Am. Broad. Cos. v. Aereo, Inc.,
`573 U.S. 431 (2014) .............................................. 26
`Atari Games Corp. v. Nintendo of Am. Inc.,
`975 F.2d 832 (Fed. Cir. 1992) .............................. 17
`Baker v. Selden,
`101 U.S. 99 (1879) ................................................ 13
`Bowsher v. Synar,
`478 U.S. 714 (1986) ................................................ 7
`Comput. Assocs. Int’l v. Altai, Inc.,
`982 F.2d 693 (2d Cir. 1992) ................................. 17
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) .............................................. 22
`Gen. Universal Sys., Inc. v. Lee,
`379 F.3d 131 (5th Cir. 2004) ................................ 17
`Harper & Row Publishers, Inc. v.
`Nation Enters.,
`471 U.S. 539 (1985) ................................................ 6
`JustMed, Inc. v. Byce,
`600 F.3d 1118 (9th Cir. 2010) .............................. 17
`Krause v. Titleserv, Inc.,
`402 F.3d 119 (2d Cir. 2005) ................................. 11
`Marsh v. Chambers,
`463 U.S. 783 (1983) ................................................ 7
`
`
`
`
`
`
`
`
`iv
`
`Sega Enters. Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir. 1992) .............................. 11
`Sony Corp. of Am. v. Universal City Studios, Inc.,
`464 U.S. 417 (1984) .......................................... 5, 22
`United States v. Am. Trucking Ass’ns, Inc.,
`310 U.S. 534 (1940) .............................................. 19
`
`
`Statutes and Other Authorities
`U.S. Const. art. I, § 8, cl. 8 ...................................... 3, 5
`17 U.S.C. § 101 .......................................... 9, 11, 20, 21
`17 U.S.C. § 102(a) .............................................. 3, 9, 19
`17 U.S.C. § 102(a)(1) ................................................... 9
`17 U.S.C. § 102(b) .................................... 13, 14, 19, 20
`17 U.S.C. § 107 .............................................. 17, 18, 21
`17 U.S.C. § 107(1) ...................................................... 17
`17 U.S.C. § 107(2) ...................................................... 21
`17 U.S.C. § 117 .............................................. 11, 21, 22
`17 U.S.C. §§ 101–810 .................................................. 2
`1 Melville Nimmer, Nimmer on Copyright
`(14th ed. 1976) ...................................................... 13
`126 Cong. Rec. (1980) .......................................... 12, 13
`137 Cong. Rec. (1991) ................................................ 18
`Act of Dec. 31, 1974, Pub. L. No. 93-573,
`88 Stat. 1873 ........................................................ 10
`Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124 ............... 7
`
`
`
`
`
`
`
`
`v
`
`Act of Oct. 24, 1992, Pub. L. No. 102-492,
`106 Stat. 3145 ...................................................... 18
`Arthur R. Miller, Copyright Protection for
`Computer
`Programs, Databases,
`and
`Computer-Generated Works: Is Anything New
`Since CONTU?, 106 Harv. L. Rev. 977
`(1993) ............................................................ passim
`Brief for Respondent, Google LLC v. Oracle Am.,
`Inc., No. 18-956 (U.S. Feb. 12, 2020) ................... 21
`Brief for the Petitioner, Google LLC v. Oracle
`Am., Inc., No. 18-956
`(U.S. Jan. 6, 2020) .............................. 15, 19, 20, 21
`Brief for the United States as Amicus Curiae,
`Google LLC v. Oracle Am., Inc., No 18-956
`(U.S. Sept. 27, 2019) ...................................... 20, 26
`Comm’n on the Theft of Am. Intellectual Prop.,
`Update to the IP Commission Report (2017) ....... 26
`Computer Software Copyright Act of 1980, Pub.
`L. No. 96-517, 94 Stat. 3015 ........................ passim
`Computs. & Intellectual Prop.: Hearings Before
`the Subcomm. on Courts, Intellectual Prop. &
`the Admin. of Justice of the H. Comm. on the
`Judiciary, 101st Cong., 1st & 2d Sess. 1 (1989
`& 1990) ................................................................. 24
`Copyright Act of 1976, Pub. L. No. 94-553,
`90 Stat. 2541 ................................................ passim
`Copyright Term Extension Act, Pub. L. No. 105-
`298, 112 Stat. 2827 (1998) ................................... 23
`
`
`
`
`
`
`
`
`vi
`
`Digital Millennium Copyright Act, Pub. L. No.
`105-304, 112 Stat. 2860 (1998) ............................ 23
`Economic and Trade Agreement Between the
`Government of the United States of America
`and the Government of the People’s Republic
`of China, China-U.S., Jan. 15, 2020, Office of
`the U.S. Trade Representative ............................ 26
`Elizabeth
`Fleet, Madison’s
`“Detached
`Memoranda,” 3 Wm. & Mary Q. 534 (1946) ......... 6
`Greg Ip, If the Economy Booms, Thank Software,
`Wall St. J. (May 29, 2019, 10:43 AM) ................... 8
`H.R. Rep. No. 94-1476 (1976), as reprinted in
`1976 U.S.C.C.A.N. 5659 ............................... passim
`H.R. Rep. No. 96-1307(I) (1980), as reprinted in
`1980 U.S.C.C.A.N. 6460 ....................................... 13
`Innovation in Am. (Part II): The Role of Tech.:
`Hearing Before the Subcomm. on Courts,
`Intellectual Prop. & the Internet of the H.
`Comm. on the Judiciary, 113th Cong. (2013) ..... 24
`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) ................. 19, 23, 25
`Nat’l Comm’n on New Tech. Uses of Copyrighted
`Works, Final Report (1978) ......................... passim
`
`
`
`
`
`
`
`
`
`
`vii
`
`Paul M. Schwartz & William Michael Treanor,
`Eldred and Lochner: Copyright Term
`Extension and
`Intellectual Property as
`Constitutional Property, 112 Yale L.J. 2331
`(2003) .................................................................. 6, 7
`Ralph Oman,
`Computer
`Software
`as
`Copyrightable Subject Matter: Oracle v.
`Google, Legislative Intent, and the Scope of
`Rights in Digital Works, 31 Harv. J.L. & Tech.
`639 (2018) ....................................................... 16, 25
`S. Rep. No. 94-473 (1975) .......................................... 10
`The Federalist No. 43 (Madison) ................................. 6
`The Reg.’s Perspective on Copyright Review:
`Hearing Before
`the H. Comm. on
`the
`Judiciary, 114th Cong. (2015) ....................... 24, 25
`The Scope of Copyright Prot.: Hearing Before the
`Subcomm. on Courts, Intellectual Prop. & the
`Internet of the H. Comm. on the Judiciary,
`113th Cong. (2014) ............................................... 24
`
`
`
`
`
`INTEREST OF AMICI CURIAE1
`curiae are
`former United States
`Amici
`Congressmen who have personal experience with the
`passage of
`federal copyright
`laws, specifically
`Congress’s careful consideration of the copyright
`regime as applied to computer programs.
`Orrin G. Hatch served as a U.S. Senator from Utah
`from 1977 to 2019, and as President Pro Tempore of
`the Senate from 2015 to 2019. From 1995 to 2001, and
`again from 2003 to 2005, Senator Hatch served as
`Chairman of the Senate Judiciary Committee, of
`which he was the Ranking Member from 1993 to 1995,
`and again from 2001 to 2003. Senator Hatch is one of
`the longest-serving U.S. Senators in history.
`Dennis DeConcini served as a U.S. Senator from
`Arizona from 1977 to 1995. In the 101st Congress,
`Senator DeConcini served on the Senate Judiciary
`Committee, chairing the Subcommittee on Patents,
`Copyrights, and Trademarks.
`Robert Goodlatte served thirteen terms, from 1993
`to 2019, as a member of the U.S. House of
`Representatives from Virginia’s 6th district. From
`2013 to 2019, Representative Goodlatte served as
`Chairman of the House Judiciary Committee. While
`
`
`1 Petitioner Google LLC has filed blanket consent to the filing
`of amicus briefs, and Respondent Oracle America, Inc. has
`provided written consent to the filing of this Brief. No counsel
`for a party authored this Brief in whole or in part, and no such
`counsel or party made a monetary contribution intended to fund
`the preparation or submission of this Brief. No person other than
`the amici curiae, or their counsel, made a monetary contribution
`to the preparation or submission of this Brief.
`
`
`
`
`
`
`
`
`
`
`2
`
`
`in Congress, Representative Goodlatte also served as
`Co-Chairman of
`the bipartisan Congressional
`Internet Caucus, Chairman of the House Republican
`High-Technology Working Group, and Co-Chairman
`of
`the Congressional International Anti-Piracy
`Caucus.2
`Amici therefore have firsthand experience with the
`passage of the Computer Software Copyright Act of
`1980, Pub. L. No. 96-517, 94 Stat. 3015, which
`amended the Copyright Act of 1976, Pub. L. No. 94-
`553, 90 Stat. 2541, 17 U.S.C. §§ 101–810, to make it
`explicit that copyright protection extends to computer
`programs, as well as other federal copyright laws
`passed in recent decades. Amici have a keen interest
`in ensuring that judicial interpretation of the federal
`copyright laws remains consistent with both the text
`of such laws and Congress’s intent in passing them, so
`as to honor Congress’s long tradition of reviewing and
`expanding copyright pursuant to the power granted to
`it by the U.S. Constitution.
`SUMMARY OF ARGUMENT
`This Court should affirm the Federal Circuit’s
`rulings in this case that the Copyright Act of 1976 and
`its 1980 amendment (together, the “Copyright Act” or
`the “Act”) provide copyright protection to computer
`programs, including Respondent Oracle America,
`Inc.’s declaring code, and that Petitioner Google LLC’s
`copying of thousands of lines of that code does not
`
`
`2 The Judiciary Committees of both the House and Senate,
`on which amici served, have long had jurisdiction over matters
`of intellectual property, including copyright.
`
`
`
`
`
`
`
`
`
`
`3
`
`
`constitute fair use as a matter of law.3 Pet. App. 1a–
`3a, 54a–55a; see also id. at 123a–124a. As the Federal
`Circuit recognized, both the text and history of the
`Copyright Act support Oracle’s arguments in favor of
`copyrightability and against fair use. Id. at 13a–14a,
`20a, 43a, 55a; see also id. at 136a, 141a, 161a–163a.
`Amici respectfully submit this Brief to elaborate on
`that text and history, from their vantage point as
`participants in the passage of the 1980 amendment
`and other federal copyright laws, and also to reiterate
`Congress’s constitutional authority and institutional
`competence in the area of copyright.
` First, protection for computer programs, including
`the declaring code at issue here, is consistent with the
`U.S. Constitution’s grant of power to Congress to use
`copyright to “promote the Progress of Science and the
`useful Arts.” U.S. Const. art. I, § 8, cl. 8.
`Second, both the text and history of the Copyright
`Act show that Congress accorded computer programs
`full copyright protection, with no carve-out for some
`undefined subset of software. Computer programs are
`covered by the language of Section 102(a) of the
`Copyright Act, which protects “original works of
`authorship
`fixed
`in any
`tangible medium of
`expression, now known or later developed, from which
`they can be perceived, reproduced, or otherwise
`communicated, either directly or with the aid of a
`machine or device.” 17 U.S.C. § 102(a). By the time
`of the 1976 Act, Congress considered “computer
`
`
`3 Amici also support affirmance of the Federal Circuit’s
`rulings in relation to Oracle’s unique structure, sequence, and
`organization (also known as SSO), but focus this Brief on Oracle’s
`declaring code.
`
`
`
`
`
`
`
`
`
`
`4
`
`
`programs” among “the new expressive forms” that
`“could be regarded as an extension of copyrightable
`subject matter Congress had already intended to
`protect.” H.R. Rep. No. 94-1476, at 51 (1976), as
`reprinted in 1976 U.S.C.C.A.N. 5659, 5664.
`Congress then took the step of tasking the recently
`created National Commission on New Technological
`Uses of Copyrighted Works
`(“CONTU”) with
`examining whether computer programs should
`remain copyrightable. After three intensive years of
`study, not only did CONTU recommend that computer
`programs continue to be copyrightable, but also that
`general copyright principles, such as fair use, apply to
`computer programs no differently than any other
`works.
` Nat’l Comm’n on New Tech. Uses of
`Copyrighted Works, Final Report 1, 11, 15–16, 21
`(1978)
`[hereinafter CONTU Report].
` Notably,
`CONTU declined to carve out some subset of computer
`programs as uncopyrightable, recognizing that such
`an attempt at line-drawing “would be futile” given the
`difficulty of predicting the future of technological
`development. Id. at 22. In enacting CONTU’s
`recommendations wholesale, Congress concurred in
`these judgments, which in turn dictate that Oracle’s
`declaring code is copyrightable, and that Google’s
`copying of thousands of lines of it to create a
`competing commercial product was not fair use.
`Third, since Congress made it explicit in 1980 that
`computer programs are protected by copyright,
`subsequent Congresses have periodically revisited
`such protection and, in the interest of innovation and
`competitiveness,
`have
`continued
`and
`even
`strengthened that protection. This Court should not
`undermine that
`legislative
`judgment—based on
`
`
`
`
`
`
`
`
`
`
`5
`
`
`Congress’s long tradition of reviewing and expanding
`copyright to encompass new modes of expression—by
`creating the loopholes to copyrightability and fair use
`that Google requests.
`“Sound policy,” this Court has remarked, “as well
`as history, supports our consistent deference to
`Congress when major technological innovations alter
`the market for copyrighted materials. Congress has
`the constitutional authority and the institutional
`ability to accommodate fully the varied permutations
`of competing interests that are inevitably implicated
`by such new technology.” Sony Corp. of Am. v.
`Universal City Studios, Inc., 464 U.S. 417, 431 (1984).
`The issues presented in this case only reinforce the
`wisdom behind that deference, and counsel in favor of
`continuing it here.
`
`ARGUMENT
`
`I.
`
`CONGRESS’S DECISION TO EXTEND COPYRIGHT
`PROTECTION TO COMPUTER PROGRAMS IS
`CONSISTENT WITH THE U.S. CONSTITUTION.
`Computer code—notwithstanding that neither the
`Framers nor
`the First Congress could have
`anticipated it—fits comfortably within the language of
`the Copyright Clause of the U.S. Constitution, as well
`as the history of copyright protection in this Nation.
`With the Copyright Clause, the Framers empowered
`Congress to “promote the Progress of Science and the
`useful Arts” by investing creators with “the exclusive
`Right” to their “Writings” “for limited Times.” U.S.
`Const. art. I, § 8, cl. 8. Since 1790, Congress
`repeatedly has exercised this grant of power to extend
`
`
`
`
`
`
`
`
`
`
`6
`
`
`copyright protection to new modes of expression. See
`CONTU Report 14–15.
`Although there is little evidence regarding the
`Copyright Clause
`from
`the Constitutional
`Convention, see Paul M. Schwartz & William Michael
`Treanor, Eldred and Lochner: Copyright Term
`Extension and Intellectual Property as Constitutional
`Property, 112 Yale L.J. 2331, 2375 (2003), James
`Madison wrote in the Federalist Papers that the
`“utility of this power will scarcely be questioned,”
`because the “public good fully coincides in both cases
`with the claims of individuals.” The Federalist No. 43
`(Madison).
` Later,
`in his so-called “detached
`memoranda,” Madison explained that “the exclusive
`Right” that Congress grants to authors pursuant to
`the Copyright Clause
`is
`“considered as a
`compensation for a benefit actually gained to the
`community as a purchase of property which the owner
`might otherwise withhold from public use.” Elizabeth
`Fleet, Madison’s “Detached Memoranda,” 3 Wm. &
`Mary Q. 534, 551 (1946).
`Such statements reinforce the understanding,
`embodied in the language of the Copyright Clause,
`that the Framers deemed economic incentive the
`surest way to foster innovation in the young Republic.
`See also Arthur R. Miller, Copyright Protection for
`Computer Programs, Databases, and Computer-
`Generated Works: Is Anything New Since CONTU?,
`106 Harv. L. Rev. 977, 1049 (1993) (“the notion of
`copyright as an economic right” “dominates the Anglo-
`American system”). This Court has concurred in that
`understanding. E.g., Harper & Row Publishers, Inc.
`v. Nation Enters., 471 U.S. 539, 558 (1985) (“the
`Framers intended copyright itself to be the engine of
`
`
`
`
`
`
`
`
`
`
`7
`
`
`“establishing a
`free expression,” because by
`marketable right to the use of one’s expression,
`copyright supplies the economic incentive to create
`and disseminate ideas”).
`The First Congress did not waste time in
`exercising its power under the Copyright Clause,
`passing the Nation’s first federal copyright law within
`little more than a year of its initial meeting.4 Act of
`May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124. That law
`granted copyright protection to maps, charts, and
`books. Id. The decision to protect maps and charts—
`neither of which comes obviously within the term
`“Writings”—signaled
`Congress’s
`expansive
`understanding of the Clause, as well as its low
`threshold for originality. See Schwartz & Treanor,
`supra, at 2387–88. Notably, neither Madison nor any
`other member of Congress objected to this broad
`interpretation of the Clause. Id. at 2388.5
`This history demonstrates that the computer code
`at issue in this case easily qualifies as a “Writing[]”
`for constitutional purposes. Declaring code—which is
`human-readable and rendered in letters, numbers,
`and symbols, see Pet. App. 124a–125a—is perhaps
`
`4 This Court has recognized that the action of the First
`Congress “provides ‘contemporaneous and weighty evidence’ of
`the Constitution’s meaning since many of the Members of the
`First Congress ‘had taken part in framing that instrument.’”
`Bowsher v. Synar, 478 U.S. 714, 723–24 (1986) (quoting Marsh
`v. Chambers, 463 U.S. 783, 790 (1983)).
`5 In contrast to this Nation’s first federal copyright law, the
`English antecedent, the Statute of Anne, did not protect maps or
`charts. Schwartz & Treanor, supra, at 2387 n.307. The First
`Congress’s departure from this English antecedent further
`evidences it and the Framers’ expansive view of copyright.
`
`
`
`
`
`
`
`
`
`
`8
`
`
`even more readily classed as a “Writing[]” than either
`a map or chart, both of which often incorporate
`significant pictorial elements. Furthermore, the maps
`and charts that have garnered copyright protection
`since 1790 are,
`like computer code, primarily
`functional rather than aesthetic, indicating that a
`work’s utilitarian nature has never been a bar to
`copyrightability. See CONTU Report 21; Miller,
`supra, at 986.
`Finally, one need look no further than the
`explosive growth of the software industry in the four
`decades since Congress explicitly extended copyright
`protection to computer programs to recognize that
`decision has promoted “the Progress of Science and
`the useful Arts.” See Greg Ip, If the Economy Booms,
`Thank Software, Wall St. J. (May 29, 2019, 10:43 AM),
`https://tinyurl.com/y5ofk6le.
`
`The
`pace
`of
`technological
`advancement
`in
`that
`period
`demonstrates that Congress acted in accord with its
`constitutional prerogative in passing the Copyright
`Act of 1976 and its 1980 amendment.
`II.
`THE LANGUAGE AND HISTORY OF THE
`COPYRIGHT ACT SHOW THAT COMPUTER
`PROGRAMS ARE ENTITLED
`TO FULL
`PROTECTION.
`Both the statutory language and legislative history
`of the Copyright Act—not to mention Congress’s
`constitutional authority and institutional competency
`in the area of copyright, as discussed elsewhere in this
`Brief—support the Federal Circuit’s conclusions that
`declaring code is copyrightable, and that Google’s
`copying of thousands of lines of that code to create a
`competing product was not fair use as a matter of law.
`
`
`
`
`
`
`
`
`
`
`9
`
`
`Google’s arguments to the contrary are unavailing.
`This Court should uphold both rulings.
`A. THE TEXT AND HISTORY OF THE ACT SHOW
`THAT CONGRESS ACCORDED DECLARING
`CODE FULL COPYRIGHT PROTECTION.
`Computer programs are covered by the language
`of Section 102(a) of the Copyright Act of 1976, which
`protects “original works of authorship fixed in any
`tangible medium of expression, now known or later
`developed, from which they can be perceived,
`reproduced, or otherwise communicated, either
`directly or with the aid of a machine or device.” 17
`U.S.C. § 102(a). Included within the term “original
`works of authorship” are “literary works,” id.
`§ 102(a)(1), which the 1976 Act defines as works
`“expressed in words, numbers, or other verbal or
`numerical symbols or indicia, regardless of the nature
`of the material objects, such as books, periodicals,
`manuscripts, phonorecords, film, tapes, disks, or
`cards, in which they are embodied,” id. § 101.
`As a result, when Congress passed the Copyright
`Act of 1976, it considered computer programs—which,
`as previously stated, are rendered in letters, numbers,
`and symbols—already copyrightable as “literary
`works.” H.R. Rep. No. 94-1476, at 51 (classifying
`“computer programs” among “the new expressive
`forms” that “could be regarded as an extension of
`copyrightable subject matter Congress had already
`intended
`to protect,” and
`“thus
`considered
`copyrightable from the outset without the need of new
`legislation”); id. at 54 (“the term ‘literary works’”
`includes “computer programs to the extent that they
`incorporate authorship
`in
`the programmer’s
`
`
`
`
`
`
`
`
`
`
`10
`
`
`expression of original ideas, as distinguished from the
`ideas themselves”); accord S. Rep. No. 94-473 (1975).
`In passing the 1976 Act, Congress tasked a special
`federal commission, CONTU, with further examining
`this important issue. H.R. Rep. No. 94-1476, at 116;
`see also Miller, supra, at 978–79.6 In addition to
`authors, users, and other copyright owners, CONTU
`represented “the public generally, with at least one
`member selected from among experts in consumer
`protection affairs.” Miller, supra, at 979 n.3 (quoting
`Act of Dec. 31, 1974, Pub. L. No. 93-573, § 202(a)(3),
`88 Stat. 1873, 2151). Among CONTU’s members was
`Professor Arthur R. Miller, who was appointed to the
`body by President Gerald Ford and served on its
`Software Subcommittee. Id. at 981. Professor Miller
`later wrote a seminal article on CONTU’s study of
`computer programs,
`in which he re-endorsed
`CONTU’s recommendation that computer programs
`receive full copyright protection. Id. at 981–82.
`In 1978, after “three years of data collection,
`hearings, analysis, and deliberation,” CONTU issued
`its final report on computer programs. CONTU
`Report 1. CONTU reached the same conclusion as
`Congress had a few years earlier: that computer
`programs were already, and should
`remain,
`copyrightable as “literary works.” Id.; see also id. at
`16. “Relatively few changes in the Copyright Act of
`1976,” therefore, were needed to ensure the
`
`
`6 Congress had created CONTU two years earlier, in
`anticipation of the need to study this issue. Act of Dec. 31, 1974,
`Pub. L. No. 93-573, tit. II, 88 Stat. 1873, 1873–74; see also Miller,
`supra, at 979.
`
`
`
`
`
`
`
`
`
`
`11
`
`
`continuation of full protection for computer programs.
`Id. at 12.
`Soon thereafter, Congress adopted CONTU’s
`recommended
`language
`regarding
`computer
`programs verbatim.7 To define protected computer
`programs, as suggested by CONTU, Congress passed
`the Computer Software Copyright Act of 1980, which
`amended the 1976 Act to include a definition of a
`“computer program” as “a set of statements or
`instructions to be used directly or indirectly in a
`computer in order to bring about a certain result.” 17
`U.S.C. § 101. As also suggested by CONTU, the 1980
`Act amended Section 117 of the 1976 Act8 to prescribe
`narrow limitations on exclusive rights for computer
`programs, id. § 117, further evidencing Congress’s
`broad extension of copyright to such works.9 In light
`of Congress’s wholesale adoption of CONTU’s
`recommendations, “[s]ubsequent Congresses, the
`courts, and commentators have regarded the CONTU
`Report as the authoritative guide to congressional
`intent.” Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d
`1510, 1519 n.5 (9th Cir. 1992); accord Krause v.
`Titleserv, Inc., 402 F.3d 119, 128 (2d Cir. 2005).
`
`7 As Professor Miller observed, “Congress changed only the
`words ‘rightful possessor’ to ‘owner’” in CONTU’s recommended
`language for Section 117, Miller, supra, at 980 n.5 (citations
`omitted), which concerns “[l]imitations on exclusive rights” for
`computer programs, 17 U.S.C. § 117.
`8 Congress had passed Section 117 of the 1976 Act as a
`placeholder “to preserve the status quo” pending CONTU’s
`recommendations on the subject. H.R. Rep. No. 94-1476, at 116.
`9 None of the “very specific” limitations outlined in Section
`117 apply to this case, Miller, supra, at 1023, and Google has not
`presented any argument to the contrary.
`
`
`
`
`
`
`
`
`
`
`
`
`12
`
`1. LAWMAKERS AND CONTU MADE CLEAR
`THAT ORIGINAL EXPRESSION
`IN
`COMPUTER
`PROGRAMS
`IS
`COPYRIGHTABLE, WITH NO CARVE-OUT
`FOR A SUBSET OF SOFTWARE.
`Two of the amici, Senators Hatch and DeConcini,
`were U.S. Senators when Congress adopted CONTU’s
`recommendations by passing the Computer Software
`Copyright Act of 1980, and can speak to its intent from
`personal experience. That the legislative history of
`the 1980 amendment is sparse emphasizes the extent
`of lawmakers’ consensus on the wisdom of CONTU’s
`recommendations.
` Senator Bob Dole, a co-sponsor of the
`amendment with Senator Birch Bayh, said that
`it would “clarify the 1976 Copyright Act as it
`pertained to the ability to obtain copyrights on
`computer software,” and that the “language
`reflects that proposed by” CONTU “and is
`supported by the Copyright Office.”10 126
`Cong. Rec. 30,366 (1980).
`
` Senator Bayh’s statement was almost identical:
`The amendment “clarifies the 1976 Copyright
`Act as it is related to the ability to obtain
`copyrights on computer software,” and its
`“language reflects that proposed by” CONTU
`
`10 Notably, the Copyright Office had begun accepting
`computer programs for registration in 1964, CONTU Report 15,
`and was still doing so by the time CONTU issued its final report
`fourteen years later, id. at 11 n.42. In its report, CONTU
`observed, “The Register’s 1964 determination has never been
`challenged.” Id. at 16.
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`“and is supported by the Copyright Office.” Id.
`at 30,365.
`
` Likewise, in the House, Representative Robert
`Kastenmeier of Wisconsin—who had sponsored
`the Copyright Act of 1976—said that the
`amendment “eliminates confusion about the
`legal status of computer software by enacting
`the recommendations of” CONTU “clarifying
`the law of copyright of computer software.” Id.
`at 29,895; accord H.R. Rep. No. 96-1307(I), at
`23–24
`(1980),
`in
`1980
`as
`reprinted
`U.S.C.C.A.N. 6460, 6482–83.
`While
`lawmakers’ statements on the 1980
`amendment were brief, though uniformly supportive,
`CONTU provided a thorough explanation of its
`reasoning, specifically opining on the distinction
`between a “computer program” and a “process,”
`“system,” or “method of operation,” as the latter terms
`are used in Section 102(b) of the Copyright Act. See
`17 U.S.C. § 102(b). Recognizing that this distinction
`“does not always seem to ‘shimmer with clarity,’” but
`that it was “important that the distinction between
`programs and processes be made clear,” CONTU
`explained
`that Section
`102(b)
`codified
`the
`idea/expression dichotomy articulated in Baker v.
`Selden, 101 U.S. 99
`(1879), whereby original
`expression is copyrightable but the underlying ideas
`are not. CONTU Report 18–19. That doctrine,
`however, “in no event
`justifies the denial of
`copyrightability to any work.” Id. at 19 (quoting 1
`Melville Nimmer, Nimmer on Copyright § 37.31 (14th
`ed. 1976)); see also H.R. Rep. No. 94-1476, at 57
`(“Section 102(b) in no way enlarges or contracts the
`scope of copyright protection under the present law.
`
`
`
`
`
`
`
`
`
`
`14
`
`
`Its purpose is to restate, in the context of the new
`single Federal system of copyright, that the basic
`dichotomy between expression and idea remains
`unchanged.”).
`For computer programs, CONTU explained that
`the idea/expression dichotomy means that “one is
`always free to make a machine perform any
`conceivable process (in the absence of a patent), but
`one is not free to take another’s program.” CONTU
`Report 20. In other words,
`The movement of electrons through the
`wires and components of a computer is
`precisely
`that process over which
`copyright has no control.
` Thus,
`copyright leads to the result that anyone
`is free to make a computer carry out any
`unpatented
`process,
`but not
`to
`misappropriate another’s writing to do
`so.
`Id. at 22; see also H.R. Rep. No. 94-1476, at 57
`(“Section 102(b) is intended, among other things, to
`make clear that the expression adopted by the
`programmer is the copyrightable element in a
`computer program, and that the actual processes or
`methods embodied in the program are not within the
`scope of the copyright law.”).
`CONTU recognized only two exceptions to the rule
`of copyright protection for computer programs: when
`a program consists “of a very few obvious steps,”
`characterized by “the rankest obviousness and
`simplicity”; or “when specific instructions” “are the
`only and essential means of accomplishing a given
`task.” CONTU Report 20.
`
`
`
`
`
`
`
`
`
`
`15
`
`
`Neither exception applies to the computer code at
`issue in this case. The 11,330 lines of Oracle’s
`declaring code that Google gratuitously copied for its
`own commercial gain, see Pet. App. 45a, are not, by
`definition, “a very few obvious steps.” Nor were they
`“the only and essential means” of creating the Android
`platform. As CONTU was able to recognize even four
`decades ago,
`the
`“availability of alternative
`noninfringing language is the rule rather than the
`exception” for computer programs, a precept that
`holds true today. CONTU Report 20 n.106. Oracle
`had myriad options and made numerous expressive
`choices in writing its declaring code. See Pet. App.
`150a–151a. The fact that Google had numerous
`choices when writin
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