Via the Cyberlaw Clinic

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The Cyberlaw Clinic filed an amicus curiae brief (.pdf) in the United States Supreme Court in Oracle v. Google, No. 18-956, on behalf of a group of intellectual property law scholars. The brief supported Google’s petition for certiorari, asking the Supreme Court to review decisions of the United States Court of Appeals for the Federal Circuit. Google’s petition is the latest stage in a nearly decade-long litigation battle between Oracle and Google concerning Google’s use of Oracle’s application programming interface (“API”) in Google’s Android smartphone platform.  The case raises two major sets of copyright issues.  The first concerns the scope of copyright protection for APIs and the line between protectable expression and purely functional elements of computer code.  The second concerns whether, if an API is protected by copyright, use of that API may fall under fair use. The Clinic’s brief supports Google on the second of those points, urging the Court to take the case and resolve the fair use issue.

By way of background, in 2010, Oracle sued Google for copyright and patent infringement. A jury in the Northern District of California reached a verdict in favor of Google on May 31, 2012. Oracle appealed the case to the United States Court of Appeals for the Federal Circuit, which reversed the verdict and remanded for a retrial.  The Federal Circuit held that the “structure, sequence and organization” of software is copyrightable. Google petitioned for a writ of certiorari, which was denied.

A second trial began in 2016 and ended with another verdict for Google — this time on the grounds that Google’s use of the Oracle API constituted fair use within the meaning of Section 107 of the Copyright Act.  The Federal Circuit reversed again, this time holding that Google’s use of Oracle’s API code was not fair use.

Amici who joined the Clinic’s brief are intellectual property scholars who are concerned that the Federal Circuit’s decision below misapplied the fair use doctrine. In arguing that the Supreme Court should grant certiorari in this case, amici described at least three ways in which circuits have split in applying fair use standards.  First, while several other circuits have been applying the clear error standard, the Ninth Circuit interpreted the Supreme Court’s decision in Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) to require de novo review of fair use determinations. Second, the Supreme Court first articulated the “transformative use” test for fair use in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), but lower courts have had trouble drawing clear lines in its application. Third, the Supreme Court never clarified the relationship between Campbell and Harper, resulting in some courts ruling that Campbell’s “transformativeness” test overruled Harper’s market-oriented test based on 17 U.S.C. § 107, while others held on to Harper’s holding, creating a circuit split in fair use applications. The brief concluded by asking the Court to grant Google’s petition for a writ of certiorariand hear the case on its merits.

Amici on the brief included:

  • Prof. Michael Kasdan is a partner at Wiggin and Dana LLP, and an Adjunct Professor of Law at New York University School of Law;
  • Prof. Orly Lobel is the Don Weckstein Professor of Labor and Employment Law at University of San Diego School of Law;
  • Prof. Lydia Loren is the Henry J. Casey Professor of Law at Lewis & Clark Law School;
  • Prof. Mark McKenna is the John P. Murphy Foundation Professor of Law at Notre Dame Law School;
  • Prof. Lateef Mtima is a Professor of Law at Howard University School of Law;
  • Prof. Elizabeth L. Rosenblatt is an Associate Professor of Law at Whittier School of Law, and a Visiting Professor of Law at University of California, Davis, School of Law;
  • Christopher B. Seaman is an Associate Professor of Law at Washington and Lee University School of Law; and
  • Rebecca Tushnet is the Frank Stanton Professor of the First Amendment at Harvard Law School.

Many other amicus briefs supported Google’s petition for certiorari, including a brief (.pdf) filed by a separate copyright scholars coalition led by Pam Samuelson and Catherine Crump at UC Berkeley and a team from Berkeley’s Samuelson Law, Technology & Public Policy Clinic. That brief focused on questions of copyrightability and the scope of protection for APIs.

Fall 2018 Cyberlaw Clinic students Robert Joynt and Madeline Salinas and Spring 2019 Advanced Cyberlaw Clinic students LeHeng Li and Jaisel Patel contributed to the amicus brief, working with Clinical Professor Christopher Bavitz. The Clinic team collaborated closely with Professor Rebecca Tushnet to develop the arguments in this brief.