Legal Docket - Copyrighting computer code

NICK EICHER, HOST: It’s Monday morning and we’re back at it for another week of The World and Everything in It. Today is the 19th of October, 2020.

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

BLUMENTHAL: Are you aware of the Supreme Court, as it’s called, “shadow docket”? I am.

That is Sen. Richard Blumenthal last week during the confirmation hearing for Judge Amy Coney Barrett. He’s raising a question that sounds very mysterious.

BLUMENTHAL: Increasingly, the court has turned to this shadow docket. In fact, it’s growing larger, it’s up to 6,000 cases every year.

What is the Supreme Court’s “Shadow Docket?” 

Well, it refers to emergency orders and rulings from the justices that rise up from disputes not formally argued or briefed on the merits.

EICHER: For example, it was just last week the court granted a “Shadow Docket” request from the Department of Commerce. The request was to block a lower court’s decision that would have allowed more time to gather census data.

Another recent example came earlier this month: The court reinstated a South Carolina law that requires a witness to sign a voter’s mail-in ballot.

REICHARD: These orders outside the briefed and argued cases has seized media attention of late … not to mention Senator Blumenthal. 

Media outlets like Slate and The Washington Post  as well as Justice Sonia Sotomayor have criticized the way it’s carried out. 

Shadow docket decisions typically arise in emergency situations. The Trump administration stepped up use of these emergency applications largely due to pandemic shut down challenges and election disputes. Matters in which time is of the essence. 

Another example might be when a lower court judge issues a nationwide injunction beyond his or her jurisdiction. That’s happened frequently to the Trump administration. 

Senator Blumenthal, in his brief exchange, said he wanted Judge Barrett to hear what he said was a strong message: that the increasing reliance on the so-called “Shadow Docket,” to his mind, is anti-democratic and lacks transparency.

I do not think we’ve heard the last of this issue.

EICHER: Duly noted.

Well, now on to oral arguments. 

Today, two cases,  all of them conducted over the phone with eight justices. 

Case one: Google v Oracle. The two computer technology giants are battling over copyright protections. Billions of dollars are at stake. 

Oracle says Google stole software codes that Oracle created and registered for copyright protection. 

But Google says the pieces of code it used are not copyrightable; even if they are, this piece falls into an exception.

Google’s lawyer conceded that Oracle holds a copyright in Java SE as a computer program. But he argued that copyright protection doesn’t cover any method of operation in Java SE.

REICHARD: Maybe think of it this way: when you build a house, you need bricks and you need a blueprint that tells how to put it all together. 

In computer programming, you need data (the bricks) and instructions (the blueprint.) This dispute is over those instructions, also called declarations.

Listen to this exchange between Google lawyer Thomas Goldstein and Justice Clarence Thomas. I’ve edited for flow.

GOLDSTEIN: If there are no substitutes, if we cannot use anything else, then you would be giving Oracle effectively patent rights by preventing us from re-using the declaration.

THOMAS: You know, you could—someone could argue, though, that, look, if a team takes your best players, a football team, that the only way that those players could actually perform at a high level is if you give that team your playbook. I don’t think anybody would say that is right.

GOLDSTEIN: Yeah, our point isn’t that we can’t do it at a high level. Remember, everyone agrees that we have the right as Google to write a computer program that provides all the same functionality as Java SE. And in Android, we wrote new and better versions that were more suitable for use in a modern smartphone. So it’s not like we are trying to take someone’s fan base or their football players or anything else.

Let’s get technical for a minute: this is a fight over APIs. That’s the initialism for Application Programming Interfaces. It’s an interface that lets two computer systems talk to each other. You know when you pay for gas by credit card? The gas station computer talks to your credit card company’s computer to process your payment. That interface, the thing that lets those computers talk to each other, is an API.

Your smartphone is really just a little computer. Most of the world’s smartphones use Google’s Android operating system. To communicate with other computers, the Android operating system uses an interface, a piece of computer code Oracle made.  The blueprint, to use our house building analogy. 

Google lawyer Goldstein underscored how big a deal this is:

GOLDSTEIN: The long-settled practice of reusing software interfaces is critical to modern interoperable computer software. Here, reusing the minimally creative declarations allowed the developers to write millions of creative applications that are used by more than a billion people.

When you boil it down, Goldstein’s argument is that Google transformed the copyrighted material of Oracle into something completely different. Therefore, Google’s use of Oracle’s API falls under a doctrine called “fair use.” 

But Chief Justice John Roberts had his doubts:

ROBERTS: Before you get into fair use you say that was the only way for you to do it. But you know, cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it. I mean, if it’s the only way, the way for you to get it is to get a license.

GOLDSTEIN: Well, Your Honor, I think then that analogy would help us because if you get a patent on the safe, you may well be able to keep us out. But if you write a book about the safe that is about how to crack safes, that doesn’t give you the exclusive right to do it.

Oracle’s lawyer, Jeffrey Rosenkranz, picked up on that licensure thread:

ROSENKRANZ: Google is just wrong that the success of the software industry depends on unlicensed copying. Major corporate entities were paying a lot of money just to license our declaring code.

Justice Stephen Breyer wasn’t so sure about that in this exchange with Rosenkranz:

BREYER: What I got out of reading through this very good briefing is look, Java’s people divided the universe of tasks, of which there are billions, in a certain way. All the things that tell the computer to do one of those things, we’ll do. But that which tells the computer which to do? That’s the declaration. Here’s what it’s like: A QWERTY keyboard. You didn’t have to have QWERTY keyboards on typewriters at the beginning. But my God, if you let somebody have a copyright on that now? They would control all typewriters.

ROSENKRANZ: So, this is not like the QWERTY keyboard. There was never anything expressive in QWERTY. Semi, L, K, J, H doesn’t mean anything to anyone. It was purely mechanical. That is true of all of your examples.

But Justice Sonia Sotomayor reviewed the history of copyrights, computer codes, and case law. She emphasized how many people rely on what Google did.

SOTOMAYOR: And on that understanding, industries have built up around applications that know they can copy only what’s necessary to run on the application, but they have to change everything else. That’s what Google did here. That’s why it took less than 1% of the Java Code. So I guess that’s the way the world has run.

So, she wondered, why upend everyone’s understanding about copyright? 

Rosenkranz argued that mere 1% or not, Google flat out plagiarized the structure and organization of Oracle’s computer code.

ROSENKRANZ: I mean, if someone wanted to write a book that preserved, that reproduced the 11,000 best lines of Seinfeld, they couldn’t do it by claiming, “but we had to do it because those are the lines that everyone knows.”

Rosenkranz reminded the court that 1% Justice Sotomayor mentioned is still 37 different APIs, representing more than 11,000 lines of computer code. That’s intricate work. Why should Google be rewarded for taking it?

The overarching worry seemed to be if Oracle wins, innovation will wither. 

When you consider how old copyright protection is—it’s in the US Constitution, Article I, Section 8, Clause 8—and how long we’ve had computers by this point- it seems odd we haven’t figured this out. 

But we haven’t. Not yet.

Our final case today I’ll keep brief. 

It’s a consolidated case of two people either injured or killed in car accidents involving Ford vehicles. Tragic facts. The legal question, though, is straightforward: In what court may a legal party sue Ford? Specifically, which state? 

These accidents occurred in Montana and Minnesota and the parties brought the lawsuits there.

Ford says just because people drive its vehicles in those states, that doesn’t give its courts jurisdiction over Ford. 

The tenor of the questions sounded a lot like this. Here’s Justice Breyer questioning Ford’s lawyer, Sean Marotta.

BREYER: Why isn’t there general jurisdiction here? That’s just a preliminary.

MAROTTA: There’s no general jurisdiction because Ford is not at home in Minnesota or Montana. It’s not incorporated there and it’s not headquartered there.

BREYER: All right. So the whole point of this whole doctrine, I take it, is not to put a defendant to the trouble of going to a different state, where it’s really unfair… And, here, they did send the car in. Maybe they didn’t know it would get there. Maybe there is no causal connection. But they do do a lot of business with the same cars there. And so, since they do a lot of business with the same kinds of cars there, they have to be prepared to defend against this kind of suit. So what’s unfair about it?

What’s unfair, Marotta replied, is Ford cannot expect to be sued wherever its products end up. 

After all, just three years ago the majority justices by a vote of 8-1 decided a drug manufacturer isn’t subject to lawsuits anywhere and everywhere simply because their drugs wind up anywhere and everywhere.  

But the lawyer for the people hurt argued that when Ford Motor Company cultivates a market through dealerships to sell its cars in those states? That’s enough of a connection to establish a court’s jurisdiction over the company. 

Lots of back and forth about the kind and number of connections a company must have in a state before its courts can adjudicate allegations against it.

The circuits are split on this matter, so clarity is needed.

And that’s this week’s Legal Docket.

(AP Photo/Andrew Harnik, File) This May 4, 2020, file photo shows the Supreme Court building in Washington. 

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