Google LLC v. Oracle America Inc., U.S., No. 18-956, amicus brief filed 1/13/2020. January 13, 2020

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The American Intellectual Property Law Association today filed an amicus brief with the Supreme Court in Google LLC v. Oracle America Inc., No. 18-956, an important case involving whether copyright protection extends to certain portions of computer software code for application programming interfaces (APIs) and whether use of those portions of code in other computer programs can constitute fair use. The Supreme Court’s decision in this case could have significant implications for the software industry.  It is vital that any decision balance copyright protection for all eligible portions of software, excluding subject matter falling into statutory limitations, with permissible fair use; this balance is needed to encourage, rather than stifle, innovation in the industry.

Recognizing that Congress, in the Copyright Act of 1976 and subsequent amendments, made an intentional policy decision to include software within the category of “literary works” that are entitled to copyright protection, despite its functional aspects, AIPLA urges the Supreme Court to hold that the Java API software is eligible for Copyright protection, under Section 102(a).  Just like all of types of works, however, the courts must scrutinize the work as a whole to exclude subject matter that is subject to statutory limitations.

AIPLA urges the Court to hold that the scope of copyright protection in the Java API software as a whole does not extend to the declaring code portions of the software because these constitute “method[s] of operation” under 17  U.S.C. § 102(b), i.e., identifying and describing the name of the function being called and/or the names of the inputs and outputs. AIPLA asks the Court to avoid any holding that would more broadly limit the copyrightability of software in general, based on an assessment of how functional rather than expressive a portion of computer code is.

AIPLA also urges the Supreme Court to resolve the inconsistent application of the fair use test in lower courts by reaffirming that fair use is a case-specific analysis and holding that no single fair use factor set forth in 17 U.S.C. § 107 should have greater or lesser weight in all cases. In Section 107, Congress identified four non-exclusive factors that courts are required to consider in any fair use analysis. Some court of appeals have given at least one of those factors greater or lesser weight as a rule. AIPLA argues that this approach is inconsistent with the intent of Congress and pronouncements of the Supreme Court that fair use must be evaluated on a case-by-case basis.

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