On November 15, the Supreme Court granted certiorari in Google LLC v. Oracle America, Inc., No. 18-956. The two questions presented before the Court are (1) whether “copyright protection extends to a software interface,” and (2) whether, as the jury found, that Google’s “use of a software interface in the context of a creating a new computer program constitutes fair use.”

The case originates from a dispute over Java, a programming language developed by Oracle’s predecessor, Sun Microsystems, Inc., in the 1990s, as well as Java’s application programming interfaces (APIs) and some of its associated software libraries. Although Oracle makes the Java platform freely available to programmers building apps, it also developed a licensing scheme in parallel to commercialize the platform, which included charging a licensing fee to those using the APIs in a competing platform or embedding them in an electronic device. Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1187 (Fed. Cir. 2018), cert. granted, No. 18-956, 2019 WL 6042317 (U.S. Nov. 15, 2019). Prior to Oracle’s purchase of Sun Microsystems in 2010, Google and Sun had discussed a commercial license that would allow Google to use and adapt the Java platform for mobile devices, but the parties failed to reach an agreement. Nevertheless, Google “copied verbatim the declaring code of the 37 Java API packages–11,500 lines of Oracle’s copyrighted code” and “copied the [structure, sequence, and organization (SSO)] of the Java API packages” in connection with its development of the Android operating system, but wrote its own implementing code. Id. While Google does not charge smartphone manufacturers for the Android platform and publishes the source code for use without charge under an open source license, the platform has nonetheless had massive commercial success, generating in excess of $42 billion in revenue from advertising by 2018. Id. In light of these developments, Oracle sued Google for patent and copyright infringement.

The initial trial took place in 2012, with a jury finding copyright infringement by Google but no patent infringement. However, following trial, the district court judge presiding over the case overruled the jury’s findings, ruling as a matter of law that Java’s APIs were not copyrightable. Oracle appealed the district court ruling to the Federal Circuit. In 2014, a Federal Circuit panel reversed the district court’s ruling, finding that the declaring code and the SSO of the 37 Java API packages at issue were entitled to copyright protection, and remanded for further proceedings. Google then filed a petition for certiorari on the copyrightability issue, but the Supreme Court denied certiorari in 2015. Google Inc. v. Oracle Am., Inc., 135 S.Ct. 2887 (2015). In the resulting second trial, the jury found that Google’s use of the declaring code and the SSO constituted fair use. On June 8, 2016, after Oracle unsuccessfully moved for judgment as a matter of law as well as a new trial challenging some of the district court’s discretionary decisions at trial, the district court entered final judgment in favor of Google. Oracle appealed the judgment, and the district court’s underlying decisions on its motions, to the Federal Circuit. The Federal Circuit, applying the four factor fair use test developed by the Supreme Court in Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569 (1994), found that Google’s use of the declaring code and SSO was “not fair as a matter of law.” Oracle, 886 F.3d at 1210. Google subsequently filed its petition for a writ of certiorari, contending that software interfaces are not entitled to copyright protection, and that, even if they were, Google’s use of the Java APIs would constitute fair use.

The Court’s resolution of the two questions presented (in particular, the first) could carry massive implications for copyright law and the technology sector. If the Court rules that software interfaces are not entitled to copyright protection, it could limit or overrule existing circuit court jurisprudence finding these and similar elements of computer programs copyrightable. The importance of the Court’s decision and the controversy of the Federal Circuit’s existing decision are underscored by the numerous amici that have weighed in; 15 amicus briefs were filed with the Supreme Court in connection with Google’s petition, including by Microsoft, the Electronic Frontier Foundation, Mozilla Corp., and the Solicitor General of the United States, with the majority supporting Google and its petition. The Court has not yet announced a dates for this case, but oral arguments and the Court’s final decision are expected before the end of the Court’s current session at the end of June, 2020.