Solicitor General drops the ball in Oracle v. Google copyright case

You probably already know it’s baseball season, but you may have missed some particularly interesting inside baseball going on in the world of copyright law and policy. The most recent example: the U.S. Solicitor General’s Office has recommended the Supreme Court deny certiorari  — that is, refuse to review — to a Federal Circuit Court decision earlier this month that reversed and remanded back to a U.S. district court a case which originally found, in part, that Google did not infringe copyrights held by Oracle Corp. Got that?

If not, here’s a brief summary: In May 2014, the U.S. Circuit Court of Appeals for the Federal Circuit more or less decided that Google is a likely copyright infringer of Oracle’s “application programming interfaces” (known in the industry as APIs), but allowed that Google may have “fair use” or other defenses under copyright law. With that ruling, the Federal Circuit remanded the case back to the district court to decide whether the defenses apply.

In the meantime, the U.S. Supreme Court asked U.S. Solicitor General Donald Verrilli whether the Supremes should hear appeals based on the suit. Late yesterday, the solicitor general published his brief recommending the court not take the case. (This isn’t a big surprise: before he joined the Obama administration, Verrilli led Viacom’s legal team when it sued Google for copyright infringement based on users’ uploading allegedly infringing works to YouTube.)

We think the solicitor general has made a mistake. Copyright law should focus on protecting the original expression of ideas, including original implementations of computer-program solutions, but not the general methods to produce computer-program solutions. To protect methods, we use patent law. The trial court in Oracle v. Google already determined back in 2012 that none of Oracle’s patents were infringed.

While copyright law, like patent law, plays an important role in rewarding creativity, we’re concerned that overreaching copyright protections may actually discourage creativity, including the creative energy that Google devoted to producing its Android operating system (the subject of the Oracle case).

There are plenty of creative enterprises that don’t require copyright protection at every possible level. As law professor Jessica Litman points out in her short, accessible 2001 book on digital copyright, creativity hasn’t relied on copyright law to flourish in areas as diverse as fashion design and the culinary arts. You normally can’t copyright a recipe, for example (although if you write a novel or a poem that contains a recipe or a dress design, the larger work can be protected by under copyright law). “Of course, we don’t give copyright protection to fashions or food,” Litman writes in Digital Copyright. “We never have.”

In our view, the subject matter of this Oracle v. Google case is, precisely, how to think of what the courts call “the declaring code and the structure, sequence, and organization of the API packages” really are. The Federal Circuit considers this API stuff to be essentially creative expression, which explains the appeals court’s infringement conclusions. But Google’s programmers understood these parts of their APIs to be more like instructions and best practices – more like recipes, in other words – which they then used to write their own original implementations in order to build the Android operating system for mobile phones and other portable technologies.

We agree that most of the code Google reused is more like a recipe, even if it doesn’t quite amount to a trendy dress design. We’d have preferred to see the Federal Circuit affirm the trial court on this particular issue of the scope of infringement. Since they haven’t done so, we hope the Supreme Court sidesteps the solicitor general’s advice and decides to take on the case. In copyright, as in baseball, we fans reserve the right to second-guess the umpire.