This post first appeared on Law360.
As America mourns the passing of one of its great civil rights icons and judicial pathmakers — Justice Ruth Bader Ginsburg — stakeholders and other observers must not only contemplate what her absence means for the upcoming election but also next month’s start of oral arguments at the U.S. Supreme Court.
Among other cases on the docket, the Supreme Court will hear oral arguments in the watershed copyright case Google LLC v. Oracle America Inc. on Oct. 7.
Justice Ginsburg’s Legacy
Justice Ginsburg inspired documentaries and Oscar-nominated, full-length feature films and made cameo appearances in three operas: twice with Justice Antonin Scalia in Richard Strauss’ “Ariadne auf Naxos” and also in Johann Strauss’ “Die Fledermaus,” where she, Justice Anthony Kennedy and Justice Stephen Breyer entered Prince Orlofsky’s ball in the second act of Fledermaus billed as “the Supremes.”
The justice had a deep appreciation for the arts that went beyond her love of opera. Two Mark Rothkos, a Josef Albers and a Max Weber — some on loan from the National Gallery of Art — hung in her chambers, and she took a literature class at Cornell University under Vladimir Nabokov, which she sometimes referred to in interviews and lectures, noting that law should also be a literary profession.
Given her love for the arts, it’s not surprising, then, that Justice Ginsburg was a knowledgeable justice in copyright matters. The justice authored numerous important opinions affecting creators’ rights and was highly respected for her ability to offer clear, concise judgments that were understandable even to ordinary readers.
Some of her most notable opinions in copyright law include: New York Times Co. v. Tasini — upholding protections for freelance authors in the digital age; Eldred v. Ashcroft — upholding Congress’ extension of the duration of copyright for existing and future works as consistent with both the copyright clause and the First Amendment; and Petrella v. Metro-Goldwyn-Mayer Inc. — articulating that the equitable defense of laches cannot be used to bar a claim of copyright infringement brought within the three-year statute of limitations window.
By the end of her career, she had earned the respect of arts and technology lawyers alike. For instance, in 2015 Justice Ginsburg was inducted into the Chiefs in Intellectual Property Hall of Fame for her commitment to the advancement of women in IP and technology careers. ChIPs was started by seven female chief counsels of patents and intellectual property at Silicon Valley companies to promote women in the high-tech industry.
Google v. Oracle: The First IP Case to Be Heard Without Justice Ginsburg
Now, with a momentous, tech-centered copyright case again making its way to the court, there’s a sad irony that one of the most thoughtful justices, able to cut to the heart of a matter and make it readily understandable, is no longer with us. But while Justice Ginsburg’s thoughtful scholarship and legal acumen will no doubt be missed by her colleagues in every case they consider, they’ll have her legacy to guide them in Google v. Oracle.
Google v. Oracle is a relatively straightforward case. Google committed an obvious act of copyright infringement for business convenience. Oracle Corp. owned Java, a creative and intricately crafted work of software, widely popular among device manufacturers and application designers.
Google wanted to compete but didn’t want to invest the time and resources needed to develop its own platform, nor did it wish to take any of the multiple licenses offered by Oracle, which would have required Google to make its platform interoperable with Java. So, Google copied over 11,000 key portions of code, along with the organizational structure and began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.
While Google doesn’t dispute that it took the code, it argues that the portions of Java in question are not copyrightable, that fair use justifies its unlicensed usage, and that the Seventh Amendment right to a jury trial prevents an appellate court from overturning a jury’s decision on fair use. All of Google’s arguments are wrong.
Software is copyrightable.
Congress has protected computer code as a literary work under the Copyright Act since 1980, and it has never sought to limit protections applicable to software, despite the many opportunities it has had to do so.
As copyright scholars noted in an amicus brief to the court:
Even [in 1980,] at that relatively early stage in the development of the computer software industry, Congress considered versions of many of the arguments and issues present in this litigation, including whether computer code should be protected as a literary work, the degree to which computer programs can be considered “functional” or necessary “machine-controlled elements” (as opposed to expressive works protectable under the Copyright Act), and the interests of protecting and incentivizing innovation. After careful analysis and debate … Congress legislated that computer programs are protected under the Copyright Act with no qualifications that would differentiate software from any other type of literary work under the statute.
Since 1980, software development has grown exponentially, and its application continues to expand into new industries. Congress has amended the Copyright Act to address issues raised by technological advances in particular industries — by enacting, for example, the Computer Software Rental Amendments Act in 1990, the Digital Millennium Copyright Act in 1998, and the Music Modernization Act in 2018. Congress has not, however, amended the Copyright Act to decrease the scope of protection for computer programs. Because the statutory protections for computer software remain the same as for all other creative works, adopting Google’s position would amount to a judicially created software-specific amendment. It would also result in singling-out the protections afforded to computer programs, which contradicts the plain text of the Copyright Act.
Google’s copying of Java doesn’t qualify as fair use.
Google’s arguments that its theft of Oracle’s code should be excused as fair use — a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work — also fall flat.
There is no business convenience exception under the fair use doctrine. As the copyright scholars’ amicus brief noted:
Google and its amici try to characterize [their infringement] as “efficient infringement,” or “permission-less innovation.” Yet its conduct is entirely contrary to the goals of copyright law as expressed in the Copyright Act or the Constitution.
In her 2018 opinion for the U.S. Court of Appeals for the Federal Circuit, in favor of Oracle, U.S. Circuit Judge Kathleen O’Malley said as much, writing, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”
While there is an essential role for fair use in copyright law, Congress and the courts have set reasonable parameters, which do not include business convenience or efficient infringement.
The Supreme Court can rule on fair use.
Having failed to convince past judges of the merits of its position, Google has now raised the argument that neither the appellate courts below, nor the high court’s justices can reverse the jury trial’s previous findings on fair use. Google made a last-ditch Seventh Amendment procedural argument challenging the standard of review applied by the courts, which the court will also consider.
That decision is also straightforward: The fair use issue was put before the court because of Oracle’s successful motion for judgment as a matter of law. A party is always entitled to a judgment as a matter of law if no reasonable jury could find for the nonmoving party.
The Federal Circuit correctly found that only one finding is reasonable — that it is not fair use to infringe many thousands of lines of creative and intricately designed literary computer code for business convenience and to use it for the identical purpose in direct competition with Oracle.
Or, as Judge O’Malley put it: “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Hence, Oracle was entitled to a judgment as a matter of law regardless of the standard by which fair use is determined.
There are of course other, more nuanced, reasons to find for Oracle on this procedural issue as well. On a motion for judgment as a matter of law, the court determines matters of law de novo and assumes that all matters of fact have been found by the jury consistent with the verdict.
In applying the law to the facts, the court determines de novo any mixed questions of law and fact, especially where it is required to “expound on the law, particularly by amplifying or elaborating on a broad legal standard.” Whether a use is a fair use is exactly the kind of determination that presents a mixed question of law and facts to be determined by a judge de novo.
In making fair use rulings, judges routinely are called upon to balance the interests of property owners and the public, to ensure that the intent of the framers of the constitution are upheld by enforcing both the copyright clause and the First Amendment and to apply each of the four fair use factors in a manner that ensures the body of law develops in a stable fashion that the public can rely on. De novo standard of review for such an examination is thus entirely appropriate.
While debates over who will replace Justice Ginsburg are focused on the political makeup of the court, for this case, as well as for many other IP-related matters, decisions are rarely influenced by a justice’s political leanings. The court of course aspires to politically unbiased justice in all matters, but copyright law in particular has always been an area where decisions are rendered without a view to whether one’s politics are progressive or conservative.
Nevertheless, the stakes in Google v. Oracle are high, and a strong opinion from the court is needed to ensure a company cannot blithely assert business convenience when it wishes to appropriate the creative work of another.
Although unlikely, it would be alarming if the court should be split 4-4 in its decision, but were that the case, the Federal Circuit’s ruling in favor of Oracle would stand, and the Supreme Court would not issue an opinion. Such a result, while technically correct, would be anticlimactic for copyright scholars and a missed opportunity for the court to once and for all time do away with the outlandish notion of efficient infringement.
 Brief of Respondent Oracle America Inc., Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/93436/20190327160337558_190311%20for%20E-Filing.pdf.
 Brief of Petitioner Google LLC, https://www.supremecourt.gov/DocketPDF/18/18-956/127663/20200106172508533_18-956%20ts.pdf.
 Brief of Amici Curiae Nine Professors and Scholars of Intellectual Property Law In Support of Respondent, Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/133538/20200219155838307_18-956%20bsac%20Nine%20Professors%20and%20Scholars%20on%20Intellectual%20Property%20Law.pdf.
 United Sates Court of Appeals, Google v. Oracle (2017), http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1118.Opinion.3-26-2018.1.PDF.
 Federal Rules of Civil Procedure Rule 50 https://www.federalrulesofcivilprocedure.org/frcp/title-vi-trials/rule-50-judgment-as-a-matter-of-law-in-a-jury-trial-related-motion-for-a-new-trial-conditional-ruling/.
 U.S. Bank National Ass’n v. Village of Lakeridge LLC , 138 S Ct 960, 967-68 (2018).
 See Harper & Row Publishers Inc v Nation Enters , 471 U.S. 539, 560 (1985) ([w]here the district court has found facts sufficient to evaluate each of the statutory factors, an appellate court ‘need not remand for further factfinding but may conclude as a matter of law that the challenged use does not qualify as a fair use of the copyrighted work.).