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  • Ashley Baker

Amicus Brief Filed in Google v. Oracle in Support of Oracle

Media Inquiries: Curt Levey; (202) 510-0128;

Brief of the Committee for Justice as Amicus Curiae in Support of Respondent



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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