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  • Ashley Baker

CFJ Amicus Brief Urges SCOTUS to Rule that Google's Android Infringes Oracle's Copyright

Washington, D.C. -- Today, the Committee for Justice filed a Supreme Court amicus brief in support of Oracle in Google v. Oracle, a potentially landmark software copyright case which will be argued March 24. Oracle, which was twice victorious in the appeals court below, seeks to vindicate its copyright in the computer code and organization of its popular Java programming platform, which has revolutionized application development.

The following is a statement from Curt Levey, the Committee for Justice's president and one of the attorneys on the brief:

"The Committee for Justice decided to get involved in this case because the Supreme Court's ruling is expected to set the standard for how thoroughly computer code is protected by copyright. If Google's copying of more than 11,000 lines of Oracle's Java code in building the Android operating system is allowed to stand, that protection will be weakened and the incentives for innovation in the software industry will be diminished.

More generally, a victory for Oracle is important for promoting both the rule of law, including a textualist reading of the Constitution and statutes, and the protection of property rights. Our brief reminds the Court that the strong protection of intellectual property in the Constitution and Copyright Act has helped to make the United States the world's most prosperous society and that intellectual property protection of new technologies is particularly vital.

In our brief, we point out to the Court that the text of the Copyright Act makes no mention of the exceptions Google is trying to create when it argues that 'declaring code' is unprotected and that its copying was necessary to ensure that the Android operating system would be interoperable with other systems. Because the law is on Oracle's side, Google's arguments to the Court rely heavily on public policy arguments about interoperability and the like. We remind the Justices that the rule of law requires that such policy arguments be entertained, instead, across the street in Congress, which can amend the Copyright Act.

Although arguments about textualism and the proper role of the courts may have a special appeal for the Court's conservative Justices, we hope they will help to persuade all the Justices given that this issue, copyright protection, cuts across ideological lines."


Media Contact:

Curt Levey

(202) 510-0128 (cell)

[Note: Post updated on Feb. 19th at 12 PM to modify link]




The Copyright Act furthers the design of the Copyright Clause. Underlying the original understanding of that Clause is a theory of natural rights under which the right to intellectual property merits the same protection as the right to tangible property. Because it reflects and strengthens that robust conception of intellectual property rights, the Copyright Act—repeatedly expanded to protect all manner of emerging technologies—has long driven America’s unparalleled economic prosperity, especially in computing. The Court’s task here is merely to apply that Act, with its extremely capacious protections, to Oracle’s creative code.

That task “begin[s] and end[s] . . . with the text” of the Copyright Act. Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S.Ct. 1001, 1010 (2017). Under a straightforward analysis of that text, Oracle’s code is a protected “original work[ ] of authorship fixed in” a “tangible medium of expression.” 17 U.S.C. §102(a). Indeed, it is undisputed that Oracle’s code is sufficiently “original” to meet the statutory threshold. And while Google invokes Section 102(b)’s proscription on copyright protection for “ideas” and “methods of operations,” that provision instructs courts merely to separate the expressive content in a given work from the unprotected idea or method. The Federal Circuit did that here, correctly holding that Section 102(b) does not preclude copyright protection for Oracle’s works. For the same reason, the merger doctrine does not apply.

Google and other amici warn that affirming the Federal Circuit on copyrightability will cause the sky to fall on a critical industry. This tactic, frequently deployed in big intellectual-property cases, is a smokescreen. That is because, while there are numerous reasons to think this policy-driven prediction baseless, the more important point is that Copyright cases do not call for “a free-ranging search for the best copyright policy, but rather depend[] solely on statutory interpretation.” Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017).

After all, “the proper course is not to bend and twist [the Copyright] Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade,” Am. Broad. Companies, Inc. v. Aereo, Inc., 573 U.S. 431, 463 (2014) (Scalia, J., dissenting). And indeed, Congress has performed this task repeatedly over the life of the Act, by balancing complicated and sometimes countervailing policies that are particularly ill-suited for judicial administration. The audience for Google’s concerns, therefore, is across the street...



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