With three cases pending at the U.S. Supreme Court — including a potential landmark ruling on the billion-dollar software battle between Google and Oracle — 2020 is shaping up as a banner year in copyright law.
The Main Event: Google v. Oracle
The Supreme Court routinely handles matters with sweeping questions of civil rights, capital punishment and the functioning of our government.
But for an intellectual property case, the stakes can’t get much higher than Google v. Oracle.
The case pits two of the Silicon Valley's biggest tech companies against each other, battling over the country's top smartphone platform, with the potential for tens of billions of dollars in eventual damages. The companies have already been fighting for nearly a decade, litigating two trials and two trips up the appellate ladder.
The ruling will be the first time the court has tackled copyright law’s fair use doctrine in more than two decades. Oh, and there’s the small matter that it will be the first time the justices have ever ruled on software copyrights.
“That case is the one to watch, with a capital T-H-E,” said Anthony J. Dreyer, an attorney at Skadden Arps Slate Meagher & Flom LLP. “It doesn’t take a lawyer to recognized how pervasive software is in our society.”
Oracle is accusing Google of stealing copyrighted pieces of the Java software language when it built the Android smartphone platform. Oracle says Google copied important elements of so-called application programming interfaces — blocks of prewritten computing instructions Oracle created to help programmers more easily write in Java — and used them in Android.
Google fought back by arguing that the pieces it used from the interfaces were too functional to be protected by copyrights, but the Federal Circuit rejected that argument in 2014. A jury then found that Google was nonetheless protected by the fair use doctrine, but the Federal Circuit overturned the verdict last year.
After granting certiorari in November, the high court is now reviewing both of those rulings — and both of those issues.
It’s been 25 years since the court last weighed in on fair use, during which time it has remained a crucial counterbalance to copyright’s restrictions, but one that has proved almost maddeningly difficult to define or delineate.
And the court has never issued a binding ruling on the copyrightability of software. The court tried to tackle the issue in 1996, but a short-handed court split evenly in its vote, affirming a lower court without setting national precedent.
In dealing with copyrightability, one issue the court will address is Google’s argument that Oracle’s code was simply too functional to be covered by copyright law. Copyright covers creative expression, but expressly avoids “methods of operation” that are better covered by patent law.
The court will also wade into the so-called merger doctrine, which says that when there is only a limited number of ways to express an idea, those expressions can't be locked up under copyright law. Google says there are only so many ways to write API, meaning Oracle can’t own them.
“How the court deals with the merger doctrine, and this notion that there may only be a limited number of ways of expressing this, I think is going to be really interesting,” Dreyer said.
How the court decides the case is obviously important for copyright attorneys and software engineers, but don’t forget about the companies themselves. If the court sides with Oracle, the decision will send the case back for a new trial over how much Google should pay Oracle in damages. In an earlier trial, Oracle said those fines could have reached $8.8 billion.
Oral arguments will take place sometime early next spring, with a ruling due by June.
“The decision in that case is going to be monumental,” said Chad A. Rutkowski, an attorney at BakerHostetler. “It’s been called the most important copyright case of the decade.”
The case is Google LLC v. Oracle America Inc., case number 18-956, in the Supreme Court of the United States.
Pirate Piracy: Allen v. Cooper
In a case best known for its involvement of the infamous pirate Blackbeard, the Supreme Court is set to decide a tricky question of state sovereignty as it relates to copyright law.
A videographer named Frederick Allen sued the state of North Carolina in 2015 after it refused to stop using his footage of the Queen Anne’s Revenge — Blackbeard’s flagship that ran aground in North Carolina in 1718.
Technically, Allen had the right to do so. While the Eleventh Amendment gives states broad immunity from being sued in federal court, a 1990 statute called the Copyright Remedy Clarification Act aimed to “abrogate” that sovereignty and allow copyright owners to sue states for infringement.
Just one problem: Every circuit court that’s weighed CRCA has ruled it unconstitutional on the grounds that Congress lacks the authority it needed to pass the law. The statute has been invalidated enough times that the U.S. Department of Justice no longer defends it.
Allen is asking the justices to undo those rulings, saying Congress properly drew its authority from CRCA from either the Constitution’s intellectual property clause or the 14th Amendment. He told the justices that copyright owners are currently “helpless as states continue to trample federal copyrights.”
At oral arguments in November, the justices seemed skeptical of those legal arguments, but also expressed concern that giving states full immunity against copyright lawsuits would let them infringe to their “heart’s content.”
The extent to which those policy concerns factor into the final ruling will be something to watch.
“Whether or not states can be sued for copyright infringement is a big deal,” said Dale Cendali, an attorney at Kirkland & Ellis. “If they’re deemed to have immunity, it could embolden states in a way that would have a lot of untoward consequences.”
The case is Allen v. Cooper, case number 18-877, at the Supreme Court of the United States.
Subscription Required: Georgia v. Public.Resource
"Why would we allow the official law enacted by a legislature … to be hidden behind a pay wall?"
That was the pointed question posed by Justice Neil Gorsuch during oral arguments last month in Georgia v. Public.Resource, a case grappling with the extent to which state and local governments can use copyright to charge for access to certain legal texts.
Georgia, like many states, hires a private company to create and publish an official “annotated version” of its state code, featuring citations, analysis and opinions from the state attorney general. The simple code is free online, but users must pay for the annotated version.
States say the arrangement allows for the cost-efficient creation of more detailed legal materials, while critics say it deprives those who can't afford the fees of full access to the law.
In 2015, Georgia sued Public.Resource — a nonprofit advocacy group that has litigated other similar battles over access to legal texts — because it copied and republished the annotated codes online without permission.
But last year, the Eleventh Circuit sided with Public.Resource and ruled the annotations were effectively an extension of state law, making them a "government edict" that can't be copyrighted. Georgia took the case to the high court, which agreed in June to hear it.
During oral arguments in December, the justices spent much of their time probing how Georgia’s claims fit into century-old copyright precedents on legal texts. Was it important who specifically was authoring the annotations? Or the amount of official legal authority they were conferred?
“I think the court is struggling with this notion that any aspect of the law can be put behind a paywall,” said Dreyer, the Skadden attorney. “I think the court recognizes that if you have government officials interpreting the law, even though that doesn’t have the same force and effect of the code itself, that it can be critically important to really understanding the law.”
The case is Georgia et al. v. Public.Resource.Org Inc., case number 18-1150, before the U.S. Supreme Court.
Oh, The Issues You’ll Litigate: Dr. Seuss v. ComicMix
The next big appellate court ruling on the fair use doctrine could come from the Ninth Circuit, which is scheduled to hear arguments this spring over a mashup book that combined Dr. Seuss’ “Oh, The Places You’ll Go!” with "Star Trek."
Rejecting an infringement lawsuit filed by the estate of the famed children’s author, a trial judge ruled last year that the new book — “Oh, the Places You’ll Boldly Go!” — was the kind of “highly transformative” work that is allowed under fair use.
The estate has appealed that ruling to the Ninth Circuit, arguing the new book did not “comment on, criticize, or teach” about Seuss or “Star Trek,” but instead merely exploited the fame of the two existing works “to grab the attention of potential buyers.”
The publisher that released “Boldly Go!” has fired back, arguing instead the old works were “creatively combined to new ends,” using “themes from Star Trek to contrast and critique Go!’s starkly egocentric, winner-take-all motif.”
Where the Ninth Circuit comes down on those two subtly different approaches to fair use and “transformativeness” will be closely watched by copyright attorneys.
"I think the case will help clarify the Ninth Circuit's views on transformativeness," said Cendali, the Kirkland attorney. “This is a situation where they just put two entertainment properties together. Is something like that enough to constitute a transformative work?"
The case is Dr. Seuss Enterprises LP v. ComicMix LLC et al., case number 19-55348, in the U.S. Court of Appeals for the Ninth Circuit.
REPRINTED WITH PERMISSION FROM THE JANUARY 1, 2020 EDITION OF LAW360 © 2020 PORTFOLIO MEDIA INC. ALL RIGHTS RESERVED. FURTHER DUPLICATION WITHOUT PERMISSION IS PROHIBITED. WWW.LAW360.COM