From Mark Twain to Marvel Comics to Microsoft Windows, America has a rich history of fostering innovation and creativity with laws that have secured the fruits of labors of artists and creators. The Founders confirmed their dedication to protecting creativity by empowering Congress in the Constitution to secure copyrights (and patents). Founders like James Madison, James Monroe and others were in the First Congress when they enacted the Copyright Act of 1790.

Fast forward to today and the Supreme Court will hear arguments this year between two of the biggest tech giants in America - Oracle and Google - regarding Google’s theft of Oracle’s intellectual property.  (The oral argument was originally scheduled for March 24, 2020, but it has been postponed until next fall due to the coronavirus pandemic.) No case better exemplifies the need to uphold America’s long tradition of protecting innovation and creativity than this case.  

In his amicus brief supporting Oracle, the Solicitor General of the United States, Noel Francisco, writes that Google “copied 11,500 lines of computer code verbatim, as well as the complex structure and organization inherent in that code, to help its competing commercial product.” 

The dispute centers on what’s called application programming interfaces or APIs. This is a computer software program that permits different computer programs to communicate with each other.

Over two decades ago, engineers at Sun Microsystems created the APIs known as Java. In 2009, Oracle bought Sun Microsystems and acquired its intellectual property in Java.

Before Oracle acquired Sun, Google tried to reach a licensing agreement with Sun Microsystems to use the Java APIs. Google needed Java for the Android smartphone Google was developing to compete with Apple’s wildly successful iPhone. Sun Microsystems offered several different types of licenses for companies to Java, including one that was open source. According to the United States Court of Appeals for the Federal Circuit, “Google and Sun began discussing the possibility of Google taking a license to use and adapt the Java platform for mobile devices. The parties were unable to reach an agreement.”

After the business negotiations broke down, Google copied the Java software code it needed to keep pace with its competitors. As discussed at an event at The Hudson Institute in February 2020 about the case, there is no dispute about this fact: Google copied over 11,000 lines of computer code that it wanted to use for its new commercial smartphone product—the Android operating system.

Oracle quickly sued Google for infringing its copyright in these 11,500 lines of software code. The case has been in court for close to a decade. The Supreme Court’s decision will likely be the final word on whether Google is held accountable for copyright infringement.

Google’s lawyers have argued that Oracle should lose because APIs like Java are not protected by copyright. It now argues that APIs are solely functional methods—it is a functional interface between computer software programs. Copyright has long prohibited protecting functional methods, like methods of doing business. It protects only written words and pictures—written expressions of creativity. The protection of functional methods is the purpose of patent law, not copyright.

This argument in court might be more persuasive if the Computer Software Copyright Act of 1980 enacted by Congress to protect software programs distinguished between different types of software code. It does not. It protects all written software code equally, amending § 101 of the Copyright Act to define as protectible any “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” For copyright purposes, code—“statements or instructions to be used directly or indirectly in a computer”—is code.

The 1980 law also affirms the longstanding prohibition on copyrighting functional methods. Thus, it expressly provides that the functional elements of software code are not copyrightable.  But Google is not being sued for infringing the functionality of Java.  Oracle sued Google for copyright infringement because Google directly copied 11,500 lines of written code.

Google’s lawyers are asking the Supreme Court to rewrite the copyright statutes and judicially create artificial distinctions between types of code that would absolve a large multi-national company like Google from its deliberate decision to copy 11,500 lines of commercially valuable software code. 

Google’s argument in court would also be more persuasive if Google executives had said at the time they were negotiating a license with Sun Microsystems that they should not have to do this, because they believed that Java was a functional method that is not protected by copyright. They did not. In fact, they said the exact opposite: Google software engineer Tim Lindholm explicitly said in a 2010 email to Android founder Andy Rubin, “we need to negotiate a license for Java under the terms we need.”

Instead, Google copied 11,500 lines of software code because it deemed it cheaper and easier than obtaining one of several licenses offered by Sun Microsystems.

Google employees admitted at the time they could have adopted different code or they could have developed their own code. But Google wanted Oracle’s Java because it “was known to the developer.” This is no different than someone copying and selling a Harry Potter novel because it is already known to millions of readers. The market value in an existing written work is typically the reason for copying it. The copyright laws are meant to stop such piracy in both novels and software code.

Google’s lawyers also argue that its copying of the Java APIs is justified as “fair use.” Google claims “fair use is designed to adapt to changing technology and to account for the nature of the copyrighted material.” This argument proves too much. It destroys all copyright protections for all software code, which is always a “changing technology.” It’s also too clever by half: it contradicts Congress’s decision to protect all software code in its statutory amendment of the copyright laws in 1980.

The Supreme Court should enforce the clear copyright laws enacted by Congress. It should protect Oracle’s intellectual property. If it permits tech giants like Google to ignore copyright laws for their own commercial profit, this not only encourages more theft, it discourages the innovative and creative work that has been the driver of America’s innovation economy since 1790.