In what observers have hailed as the “copyright case of the century,” an eight-member Supreme Court heard arguments on October 7, 2020, in Google LLC v. Oracle America Inc., a long-running intellectual property dispute between the two tech giants. Along with the billions of dollars at stake between the parties, the Court’s decision in Google v. Oracle could have far-reaching implications for software companies, the broader technology industry, and other copyright-intensive industries. Reflecting these stakes, the Supreme Court received over 70 amicus briefs from industry, advocacy groups, academics, and other stakeholders, ranging from computer scientists and small software startup firms to IBM, Microsoft, and the Motion Picture Association. This Sidebar reviews the legal doctrines at issue in Google, the facts of the dispute, the parties’ arguments, and the potential implications of the Court’s decision for Congress.
Software Copyright Basics
Copyright law grants certain exclusive legal rights to authors of original creative works, such as books, music, fine art, and architecture. At least since 1980, U.S. copyright law has protected computer programs as a type of literary work. Applying legal principles originally crafted for books to computer code has not always been a straightforward task, in part because computer programs are more functional than other copyrightable subject matter. Courts have long wrestled with the appropriate scope of copyright protection in computer code. When the Supreme Court last tried to weigh in on software copyright in the 1990s, it divided 4-4 and therefore issued no precedential decision. Given that the Court heard arguments in Google with eight Justices presiding, there is at least a possibility of a 4-4 split in this case as well, although the probability of such an outcome remains unclear.
Three key copyright doctrines affect the scope of copyright protection for computer code. The first is the idea/expression dichotomy, codified in Section 102(b) of the Copyright Act, which states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” This doctrine derives from the Supreme Court’s 1880 decision in Baker v. Selden, which held that the copyright in a book describing a system of accounting extended only to the author’s particular description of that system (the book’s “expression”) and not to the accounting system itself (the book’s “idea”). The second doctrine, known as merger, is a corollary of the idea-expression distinction. When there are only a few ways to express an idea, the expression is said to “merge” with the idea, and neither is copyrightable. One central purpose of both doctrines is to prevent the use of copyright to monopolize general ideas or functional systems.
The third doctrine is fair use, which permits limited uses of copyrighted works that would otherwise be infringements, such as using portions of a copyrighted work in a parody or book review. To determine whether a use is fair, courts consider a number of factors, including (1) the purpose and character of the use, (2) the nature of the original work, (3) the amount and substantiality of what was copied, and (4) the commercial harm from the use on the potential market for the original work. As part of the first factor, courts also consider whether the alleged fair use is “transformative,” that is, whether it adds new expression, has a different purpose, or alters the original work with new expression or meaning. Applications of fair use are wide-ranging; under “the common law tradition of fair use adjudication,” courts rely on fair use to avoid “rigid application” of cop