No. 18-956

In the Supreme Court of the United States
GOOGLE LLC, PETITIONER
v.
ORACLE AMERICA, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
MARK R. FREEMAN
DANIEL TENNY
SONIA M. CARSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

The Copyright Act of 1976, 17 U.S.C. 101 et seq., protects “original works of authorship,” 17 U.S.C. 102(a),
including “computer program[s],” 17 U.S.C. 101. The
Act specifies, however, that copyright protection does
not “extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work.” 17 U.S.C. 102(b).
Under the “merger” doctrine, copyright protection also
does not apply when an idea can be expressed in only a
limited number of ways, such that the expression and
idea “merge.” Finally, the Copyright Act provides that
“the fair use of a copyrighted work * * * is not an infringement of copyright.” 17 U.S.C. 107.
The questions presented are as follows:
1. Whether Section 102(b) or the merger doctrine
precludes copyright protection for respondent’s original computer code, which defines and organizes a set of
functions that are useful in writing computer programs.
2. Whether the court of appeals correctly held that
no reasonable jury could find that petitioner’s verbatim
copying of respondent’s original computer code into a
competing commercial product was fair use.

(I)

 TABLE OF CONTENTS

Page
Statement.................................................................................. 1
Discussion .................................................................................... 10
I. The copyrightability question does not warrant
review .............................................................................. 11
A. The court of appeals correctly held that
neither Section 102(b) nor the merger
doctrine forecloses copyright protection .............. 11
B. Further review is not warranted ........................... 15
II. The fair-use question does not warrant review .......... 17
A. The court of appeals correctly held that no
reasonable jury could find fair use on this
record ....................................................................... 17
B. The court of appeals’ fact-bound decision on
fair use does not warrant further review.............. 21
Conclusion ............................................................................... 23
TABLE OF AUTHORITIES

Cases:
American Broad. Cos. v. Aereo, Inc.,
573 U.S. 431 (2014).............................................................. 21
Atari Games Corp. v. Nintendo of Am. Inc.,
975 F.2d 832 (Fed. Cir. 1992)............................................. 19
Baker v. Selden, 101 U.S. 99 (1880) ..................................... 14
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994)..................................................... passim
Disney Enters., Inc. v. VidAngel, Inc.,
869 F.3d 848 (9th Cir. 2017) ............................................... 19
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991)...................................................... 1, 8, 11
Golan v. Holder, 565 U.S. 302 (2012) ............................... 2, 12
Harper & Row, Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985)........................................................ 18, 22
(III)

 IV
Cases—Continued:

Page

Lexmark Int’l, Inc. v. Static Control Components,
Inc., 387 F.3d 522 (6th Cir. 2004) ................................ 15, 16
Lotus Dev. Corp. v. Borland Int’l, Inc.,
49 F.3d 807 (1st Cir. 1995), aff ’d by an equally
divided Court, 516 U.S. 233 (1996) .............................. 15, 16
Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366
(10th Cir. 1997) ...................................................................... 2
Roth Greeting Cards v. United Card Co.,
429 F.2d 1106 (9th Cir. 1970) ............................................. 15
Sega Enters. Ltd. v. Accolade, Inc.,
977 F.2d 1510 (9th Cir. 1993) ............................................. 19
Situation Mgmt. Sys. v. ASP Consulting LLC,
560 F.3d 53 (1st Cir. 2009) ................................................. 16
Sony Computer Entm’t, Inc. v. Connectix Corp.,
203 F.3d 596 (9th Cir. 2000) ............................................... 19
Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417 (1984).............................................................. 22
TCA Television Corp. v. McCollum, 839 F.3d 168
(2d Cir. 2016), cert. denied, 137 S. Ct. 2175 (2017) .......... 18
Twin Peaks Prods., Ltd. v. Publications Int’l, Ltd.,
996 F.2d 1366 (2d Cir. 1993) ................................................ 2
Zalewski v. Cicero Builder Dev., Inc.,
754 F.3d 95 (2d Cir. 2014) .............................................. 2, 13
Statutes, regulation, and rule:
Copyright Act of 1976, 17 U.S.C. 101 et seq. ......................... 1
17 U.S.C. 101 ............................................................ 1, 4, 11
17 U.S.C. 102(a) ................................................. 1, 8, 11, 12
17 U.S.C. 102(a)(1)............................................................. 1
17 U.S.C. 102(b) ........................................2, 7, 8, 12, 15, 16
17 U.S.C. 106(1) ................................................................. 3
17 U.S.C. 106(2) ........................................................... 3, 18

 V
Statutes, regulation, and rule—Continued:

Page

17 U.S.C. 107 .......................................................... 3, 17, 18
17 U.S.C. 107(1) ................................................................. 9
17 U.S.C. 107(1)-(4) ..................................................... 3, 17
17 U.S.C. 107(2) ........................................................... 9, 21
17 U.S.C. 107(3) ............................................................... 10
17 U.S.C. 107(4) ................................................................. 9
17 U.S.C. 109(b)(1)(A) ....................................................... 4
17 U.S.C. 117 ................................................................ 4, 11
17 U.S.C. 302 .................................................................... 15
17 U.S.C. 506(a)(3)(A) ....................................................... 4
17 U.S.C. 1201(f ).............................................................. 20
17 U.S.C. 1201(f )(4) ......................................................... 20
28 U.S.C. 1295(a)(1) ................................................................. 8
37 C.F.R. 202.1(a) .................................................................. 15
Sup. Ct. R. 10(a) ..................................................................... 21
Miscellaneous:
H.R. Rep. No. 1476, 94th Cong., 2d Sess. (1976) ............ 2, 11
1 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright (2019) ................................................................... 4
U.S. Copyright Office, Software-Enabled Consumer
Products (2016), https://go.usa.gov/xVNyD .................... 19

 In the Supreme Court of the United States
No. 18-956
GOOGLE LLC, PETITIONER
v.
ORACLE AMERICA, INC.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s order inviting the Solicitor General to express the views
of the United States. In the view of the United States,
the petition for a writ of certiorari should be denied.
STATEMENT

1. a. The Copyright Act of 1976, 17 U.S.C. 101 et seq.,
provides that “[c]opyright protection subsists * * * in
original works of authorship.” 17 U.S.C. 102(a). Works
of authorship include “literary works,” which are
“works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols
or indicia.” 17 U.S.C. 101, 102(a)(1). To be “original” in
the relevant sense, a work must have been “independently created by the author (as opposed to copied from
other works)” and must “possess[] at least some minimal degree of creativity.” Feist Publ’ns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 345 (1991). The copyright
(1)

 2
in an original literary work encompasses both its literal
aspects (i.e., the actual text) and its original nonliteral aspects, such as the plot of a novel. See, e.g.,
Twin Peaks Prods., Inc. v. Publications Int’l, Ltd., 996
F.2d 1366, 1372-1373 (2d Cir. 1993).
The Copyright Act limits the scope of the rights conferred by a copyright. As particularly relevant here,
Section 102(b) states that copyright protection does not
“extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
17 U.S.C. 102(b). For example, a copyright for a book
that explains how to perform a new surgical method
would bar others from copying the book without authorization, but not from performing the surgical method.
Section 102(b) codifies the longstanding common-law
principle known as the “idea/expression dichotomy.”
Golan v. Holder, 565 U.S. 302, 328 (2012); see H.R. Rep.
No. 1476, 94th Cong., 2d Sess. 56-57 (1976) (1976 House
Report).
Other common-law doctrines limit the copyrightability of certain expressive works. Under the “ ‘merger
doctrine,’ ” if an idea “can only be expressed in a limited
number of ways,” those means of expression “cannot be
protected, lest one author own the idea itself.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 102-103 (2d
Cir. 2014). In that circumstance, the idea and the expression are said to “merge.” Similarly, the doctrine of
scènes-à-faire teaches that elements of a work that are
“standard, stock, or common to a topic,” like cowboys
and shootouts in stories of the American West, are not
copyrightable. Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366,
1374 (10th Cir. 1997); see Zalewski, 754 F.3d at 102.

 3
b. A valid copyright gives the owner certain “exclusive rights,” including the rights “to reproduce the copyrighted work” and “to prepare derivative works based
upon the copyrighted work.” 17 U.S.C. 106(1) and (2).
But those rights are subject to limitations, including the
“fair use” doctrine, see 17 U.S.C. 107, a “judge-made
doctrine” that Congress codified in 1976. Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 576 (1994). The
fair-use doctrine permits certain uses of a copyrighted
work when enforcing a copyright would “stifle the very
creativity which [copyright] law is designed to foster.”
Id. at 577 (citation omitted). The doctrine helps to resolve “the inherent tension in the need simultaneously
to protect copyrighted material and to allow others to
build upon it.” Id. at 575. Section 107 identifies a nonexclusive list of factors that are relevant to whether a
particular use of a copyrighted work constitutes “fair
use”: (1) “the purpose and character of the use,” (2) “the
nature of the copyrighted work,” (3) “the amount and
substantiality of the portion used in relation to the copyrighted work as a whole,” and (4) “the effect of the use
upon the potential market for or value of the copyrighted work.” 17 U.S.C. 107(1)-(4).
c. This case concerns the copyrightability of computer code. To induce a computer to perform a function,
a person must give the computer written instructions.
Typically, those instructions are written in “source
code,” which consists of words, numbers, and symbols
in a particular “programming language,” which has its
own syntax and semantics. The source code is then converted into binary “object code”—ones and zeros—that
is readable by the computer.

 4
It is both “firmly established” and undisputed in this
case that computer code can be copyrightable as a “literary work[].” 1 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright § 2A.10[B] (2019). Section 101
defines a “computer program” as “a set of statements
or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”
17 U.S.C. 101. And various Copyright Act provisions
recognize that a person may own a copyright in a “computer program.” See, e.g., 17 U.S.C. 109(b)(1)(A), 117,
506(a)(3)(A).
2. a. Respondent’s predecessor-in-interest created
the Java programming language. It then developed a
variety of tools and software—known collectively as the
“Java platform”—to assist programmers in writing and
distributing computer programs in Java. Pet. App. 4a.
Like many programming languages, Java allows programmers to use short, modular subprograms to create
longer, more complex computer programs. For example, in creating a video game, a programmer might create subprograms to perform tasks such as displaying
text on the screen or playing a sound. In Java, these
subprograms are called “methods.” Pet. App. 125a. Respondent’s predecessor-in-interest created a “Standard
Library” of thousands of prewritten methods, which
have been organized into “classes,” which in turn are
organized into “packages.” Ibid. The version of the
Standard Library at issue in this case, Java SE, includes 166 packages, comprising more than 600 classes
and more than 6000 methods. See id. at 126a. Although
a Java programmer can write new code from scratch
without relying on prewritten methods, the Java Standard Library provides convenient building blocks for
writing computer programs.

 5
Although respondent does not claim a copyright in
the Java language itself, it owns a copyright in the Java
Standard Library. Pet. App. 127a. Respondent makes
the Java Standard Library available to computer programmers under three copyright licenses, including
royalty-free options. Ibid. For a commercial license,
respondent requires the licensee to ensure that programs it creates using the Java Standard Library can
be run using the Java platform. Id. at 127a-128a.
b. In general, to create a new Java method, a programmer must write code that tells the computer both
(i) what the method is, including its name, the circumstances in which it should be available to programmers,
what types of input data it should accept, what types of
output data it should produce, and what types of errors
it can generate; and (ii) how to perform the method, including steps for using the specified input data to produce the specified type of output data. The parties refer
to the first type of code as “declaring code” and to the
second as “implementing code.” Pet. 5.
An example drawn from the district court’s opinion
illustrates the distinction. See Pet. App. 224a-225a.
The following Java code defines a method named “max”
that returns the larger of two integers, x and y:
Line 1: public static int max (int x, int y) {
Line 2: if (x > y) return x;
Line 3: else return y;
Line 4: }
In this example, Line 1 is the “declaring code,” which
tells the computer the name of the method (max); the
circumstances in which the method is available to programmers (public and static); the type of output data it
produces (int, for an integer); and the type and order of

 6
the input data it accepts (integer x and integer y). (Additional declaring code, not reproduced above, would
place the method into a class and classes into a package.) Lines 2-4 are the “implementing code,” which instructs the computer how to use the input data to produce the output data.
Once a method has been written, a programmer may
invoke or “call” the method by typing a command consisting of the name of the method and the appropriate
input data. Although that command is determined by
the method’s declaring code, it is not identical to the declaring code. As a result of this structure, a programmer can use the prewritten methods in respondent’s
Java Standard Library without seeing or understanding the implementing code; the programmer need only
know (or look up) the name of the relevant method and
the parameters established by its declaring code.
c. Petitioner developed the Android operating system for mobile devices. Petitioner also created its own
platform—i.e., a set of programming tools—to assist
others in developing applications for Android. The Android platform uses the Java programming language.
As a result of petitioner’s design choices, however, applications written for Android do not run on the Java
platform, and vice versa. See Pet. App. 46a n.11, 130a,
172a.
Like the Java platform, petitioner’s Android platform contains a collection of prewritten methods organized into classes and packages. Petitioner created
much of the Android library from scratch. For 37 of the
168 packages included in the Android library, however,
petitioner copied the Java declaring code verbatim,
while writing its own implementing code. Pet. App.
129a. The copied packages contained the Java methods

 7
and classes that petitioner viewed as most useful for developing smartphone applications. See Pet. 25. Petitioner asserts that it copied the declaring code so that
programmers familiar with the Java platform would be
able to program for the Android platform without learning new commands for invoking commonly used methods. See Pet. 25-26.
Petitioner copied 11,500 lines of respondent’s copyrighted code. Pet. App. 7a. In doing so, petitioner also
copied the complex architecture of the 37 packages at
issue, including the names and specifications of the
thousands of methods and classes in those packages and
their hierarchical and interdependent relationships to
each other. See id. at 134a.
3. In August 2010, respondent sued petitioner in the
Northern District of California, alleging that petitioner
had infringed respondent’s copyright in the Java Standard Library and had also infringed related patents. Pet.
App. 2a, 97a n.2. Respondent’s copyright-infringement
claims ultimately proceeded on two theories: (i) literal,
verbatim copying of the declaring code; and (ii) nonliteral copying of the “structure, sequence, and organization” (SSO) of the Java Standard Library, which the
declaring code establishes and reflects. See id. at 2a,
132a. The case proceeded to trial, and a jury found infringement but hung on fair use. Id. at 122a.
The district court set aside the infringement verdict
on the ground that respondent did not possess a valid
copyright in the copied material. Pet. App. 212a-272a.
The court held that, under Section 102(b), the SSO is
ineligible for copyright protection because it constitutes
a “method of operation” or “system” for using the prewritten subroutines included in the Java platform. Id.
at 267a. The court also held that the merger doctrine

 8
rendered the declaring code uncopyrightable. Id. at
264a.
The Federal Circuit, which had appellate jurisdiction
because of petitioner’s since-abandoned patent claims,
affirmed in part and reversed in part. Pet. App. 121a192a; see 28 U.S.C. 1295(a)(1). Applying Ninth Circuit
precedent (see Pet. App. 134a), the court of appeals held
that the declaring code and the SSO were both “entitled
to copyright protection,” despite their functional character. Id. at 123a. The court explained that Section
102(b) “ ‘restate[s] * * * the basic dichotomy between
expression and idea,’ ” but does not “take[] * * * away”
copyright protection from works that otherwise satisfy
the criteria in Section 102(a). Id. at 141a (quoting Feist
Publ’ns, 499 U.S. at 356). The court also held that neither the merger nor the scènes-à-faire doctrine precluded copyright protection, noting (among other
things) that when respondent’s predecessor-in-interest
created the Java Standard Library, it “had ‘unlimited
options as to the selection and arrangement’ ” of the
code that petitioner ultimately copied. Id. at 150a (citation omitted); see id. at 156a-157a. Finally, the court
remanded for a new trial on fair use. Id. at 191a.
Petitioner sought this Court’s review on the question
“[w]hether copyright protection extends to all elements
of an original work of computer software * * * that an
author could have written in more than one way.”
14-410 Pet. i. This Court invited the Solicitor General
to file a brief expressing the views of the United States,
135 S. Ct. 1021, and the United States recommended
that the petition be denied, see 14-410 U.S. Br. 10-11.
This Court denied the petition. 135 S. Ct. 2887.
4. On remand, a jury found that petitioner’s copying
was fair use, and the district court denied respondent’s

 9
post-trial motions for judgment as a matter of law. Pet.
App. 9a; see id. at 57a, 92a-120a.
A unanimous panel of the Federal Circuit reversed.
Pet. App. 1a-55a. Again applying Ninth Circuit precedent (see id. at 12a), the court of appeals found that the
first and fourth statutory fair-use factors—the “purpose and character of the use” and its “effect * * * upon
the potential market for or value of the copyrighted
work,” 17 U.S.C. 107(1) and (4)—both “weigh[ed] heavily against a finding of fair use.” Pet. App. 53a. The
court determined that petitioner’s copying was “overwhelmingly commercial,” id. at 28a, and that petitioner
had not made “transformative” use of the copied material, id. at 31a. In the court’s view, the declaring code
was used to “perform the same functions in Android and
Java,” ibid., and petitioner had not changed the copied
code’s expressive content or message, id. at 33a-35a.
With respect to the effect of the copying, the court
noted “ ‘overwhelming’ ” record evidence that petitioner’s copying had inflicted “actual and potential
harm” on the market for respondent’s work, including
by enabling one of respondent’s customers to use the
existence of petitioner’s Android platform as leverage
“to negotiate a steep discount” for continuing to license
the Java platform. Id. at 50a-51a (citation omitted).
By contrast, the court of appeals viewed the “nature
of the copyrighted work,” 17 U.S.C. 107(2), as supporting the jury’s fair-use finding. The court explained that,
although writing the declaring code and the SSO had
“involved some level of creativity,” a reasonable jury
“could have concluded that functional considerations
were both substantial and important.” Pet. App. 42a.
The court viewed the remaining fair-use factor—the

 10
“amount and substantiality of the portion used in relation to the copyrighted work as a whole,” 17 U.S.C.
107(3)—as “at best[] neutral.” Pet. App. 47a; see id. at
45a (noting that petitioner had “copied 11,500 lines of
code,” and that “only 170 lines of code were necessary
to write in the Java language”).
“Weighing these factors together,” the court of appeals concluded that petitioner’s “use of the declaring
code and SSO * * * was not fair as a matter of law.”
Pet. App. 53a. The court emphasized, however, that its
decision rested on the specific “facts relating to the copying at issue here” and “this particular code.” Id. at 54a.
DISCUSSION

Petitioner’s first question presented is essentially
identical to the question on which this Court previously
denied certiorari. The United States continues to believe that the court of appeals’ holding as to copyrightability is correct, and that the question does not warrant
this Court’s review. See 14-410 U.S. Br. 19-23.
Petitioner’s second question presented (Pet. I) seeks
review of the court of appeals’ determination that respondent was entitled to judgment as a matter of law on
the issue of fair use. Although the question whether to
grant judgment as a matter of law on this record is not
free from doubt, the government agrees with that holding as well. Petitioner copied 11,500 lines of computer
code verbatim, as well as the complex structure and organization inherent in that code, in order to help its
competing commercial product. The record demonstrates, moreover, that petitioner’s unauthorized copying harmed the market for respondent’s Java platform.
In any event, the court of appeals’ holding on fair use
was limited to the particular facts of this case; those

 11
atypical facts make this an unsuitable vehicle for addressing the application of copyright law to software
generally; and no other considerations counsel in favor
of granting review. The petition for a writ of certiorari
therefore should be denied.
I. THE COPYRIGHTABILITY QUESTION DOES NOT
WARRANT REVIEW
A. The Court Of Appeals Correctly Held That Neither
Section 102(b) Nor The Merger Doctrine Forecloses
Copyright Protection

1. Various Copyright Act provisions make clear that
a person may own a copyright in a “computer program.”
17 U.S.C. 101 (defining “computer program” as “a set of
statements or instructions to be used directly or indirectly in a computer in order to bring about a certain
result”); see, e.g., 17 U.S.C. 117 (entitled “Limitations
on exclusive rights: Computer programs”) (emphasis
omitted). A computer program is “expressed in words,
numbers, or other verbal or numerical symbols or indicia” and therefore fits comfortably within the Act’s definition of “[l]iterary works.” 17 U.S.C. 101; see 1976
House Report 54; see also 14-410 U.S. Br. 11-12.
To be copyrightable, any particular computer code
must meet the basic requirements of copyright law, including originality, 17 U.S.C. 102(a). But petitioner
does not dispute that both the 11,500 lines of declaring
code and the structure, sequence, and organization
(SSO) of the Java Standard Library meet the originality
requirement, see Pet. App. 141a—i.e., that they possess
the requisite “minimal degree of creativity,” Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345
(1991).

 12
2. Petitioner primarily contends (Pet. 16) that the
declaring code is an uncopyrightable “method of operation,” 17 U.S.C. 102(b), for accessing prewritten functions implemented in other code that petitioner did not
copy. The court of appeals correctly rejected that argument. Pet. App. 165a-166a.
Section 102(b) codifies the “idea/expression dichotomy,” Golan v. Holder, 565 U.S. 302, 328 (2012), under
which a copyright in an “original work[] of authorship,”
17 U.S.C. 102(a), covers only the expressive work
itself—not the underlying ideas or methods of operation
“described, explained, illustrated, or embodied” in the
work, 17 U.S.C. 102(b). Although there is a sense in
which all computer code could be described as a method
of operating a computer, the Copyright Act as a whole
makes clear that computer programs can be protected
by copyright, refuting any suggestion that the functional character of computer code suffices to bring it
within Section 102(b). See 14-410 U.S. Br. 13-14.
Petitioner’s effort to distinguish the declaring code
at issue here from other copyright-eligible computer
code is unavailing. Petitioner asserts (Pet. 16) that, because the declaring code dictates the commands that
Java programmers must use to invoke prewritten methods, the declaring code is the “method[] of operat[ing]”
those methods, whereas the implementing code is not.
That distinction does not withstand scrutiny. Both declaring code and implementing code ultimately perform
the same practical function: They instruct a computer
to work. Both are necessary components of a Java or
Android method. And neither is what a programmer
physically types when invoking a method.
Petitioner observes that “the actual processes or
methods embodied in [a computer] program are not

 13
within the scope of the copyright law.” Pet. 17 (citation
omitted). But respondent is not asserting a copyright
in abstract processes or methods, such as a method for
selecting the larger of two integers. Without infringing
any copyright, petitioner could and did write its own
code to implement the same processes or methods. But
petitioner also copied 11,500 lines of respondent’s declaring code into Android, thereby replicating in its own
program respondent’s creative expression in the text
and architecture of the Java Standard Library.
3. Petitioner contends (Pet. 17-21) that the merger
doctrine precludes copyright protection for the declaring code. The court of appeals correctly rejected that
argument. Pet. App. 147a-153a. 1
The merger doctrine reinforces the idea/expression
dichotomy by precluding copyright when an idea can be
expressed in only a limited number of ways. In that circumstance, the idea and its expression “merge,” and the
latter is uncopyrightable. Zalewski v. Cicero Builder
Dev., Inc., 754 F.3d 95, 103 (2d Cir. 2014). That concern
is not implicated here, since respondent’s predecessorin-interest “had ‘unlimited options as to the selection
and arrangement’ ’’ of the lines of code that petitioner
copied. Pet. App. 150a (citation omitted).
Petitioner suggests (Pet. 20) that the declaring code
could be written “only in one way” after respondent’s
predecessor-in-interest made certain conceptual decisions about the organization of the Java Standard Library. Cf. Pet. Reply Br. 9. Even if that were true, it
would show at most that the declaring code is the only
way to express the SSO of the Java Standard Library.

Petitioner’s earlier petition did not seek review of the court of
appeals’ merger holding. See 14-410 U.S. Br. 22.
1

 14
But the SSO is itself a copyrightable aspect of respondent’s original work of authorship—not an uncopyrightable idea that respondent is seeking to monopolize.
Petitioner’s reliance (Pet. 17-19) on Baker v. Selden,
101 U.S. 99 (1880), is thus misplaced. Baker involved a
copyrighted book that explained a system of accounting
and included forms for implementing the system. This
Court held that the copyright in the book itself did not
bar others from using substantially similar forms to
practice the accounting method that the book described.
Id. at 101, 104-105, 107. The premise of Baker was that
the accounting method itself, unlike the SSO here, was
not subject to copyright protection. And nothing about
the Java language or the technical constraints of mobile
devices compelled petitioner’s large-scale copying.
“[O]nly 170 lines of code” are “necessary to write in the
Java language,” Pet. App. 45a, and “Microsoft and Apple
developed mobile operating systems from scratch, using
their own array of software packages,” id. at 149a n.5.
Petitioner also argues (Pet. 20-21) that the court of
appeals erred by focusing on the choices available to respondent ex ante when it created Java, rather than on
the choices available to petitioner when it sought to devise a way for programmers familiar with “industrystandard Java shorthand commands” (Pet. 27) to use
those same commands in Android. Petitioner’s approach
would treat the current popularity of respondent’s work
among developers as retroactively divesting the work of
copyright protection. The court below correctly rejected
that approach, finding it “well-established that copyrightability” should be “evaluated at the time of creation.” Pet. App. 151a. Petitioner’s contrary view is at
odds with the Copyright Act’s basic design, under which
copyright protection subsists from the creation of a

 15
work through the prescribed statutory term. 17 U.S.C.
302.
Finally, copying the complete text of the declaring
code for 37 packages—comprising more than 11,500
lines of code and reflecting the complex SSO of the Java
Standard Library—constituted much more than merely
replicating uncopyrightable names (Pet. 20; Pet. Reply
Br. 9). Although words and short phrases are not copyrightable on their own, 37 C.F.R. 202.1(a), determining
copyrightability requires an evaluation of the work as a
whole. See, e.g., Roth Greeting Cards v. United Card
Co., 429 F.2d 1106, 1109 (9th Cir. 1970). And the decision below does not foreclose the possibility that other
declaring code may be uncopyrightable under the merger doctrine—or under Section 102(b), the scènes-àfaire doctrine, or other limits on copyrightability. See
14-410 U.S. Br. 14. The court of appeals merely held,
correctly, that the particular code at issue here is entitled to copyright protection.
B. Further Review Is Not Warranted

In arguing that the copyrightability question warrants this Court’s review, petitioner relies principally
(Pet. 12-13) on the same two decisions that petitioner
previously invoked (14-410 Pet. 13-16) as the basis of a
putative circuit conflict on the application of Section
102(b) to computer programs. See Lotus Dev. Corp. v.
Borland Int’l, Inc., 49 F.3d 807, 815 (1st Cir. 1995), aff ’d
by an equally divided Court, 516 U.S. 233 (1996), and
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
387 F.3d 522 (6th Cir. 2004).
The Federal Circuit’s construction of Section 102(b)
in this case does not conflict with those decisions. See
14-410 U.S. Br. 19-22. In Lotus, the First Circuit invoked Section 102(b) to find that the arrangement of

 16
menu commands presented to a software user was an
uncopyrightable “ ‘method of operation’ ” for the software at issue. 49 F.3d at 815-818. The case did not address the copyrightability of computer code, and the
First Circuit has subsequently acknowledged, consistent with the decision below, that Section 102(b) codifies the idea/expression dichotomy. See Situation
Mgmt. Sys. v. ASP Consulting LLC, 560 F.3d 53, 61
(2009). In Lexmark, the Sixth Circuit held that a short
computer program that operated as a technological lock
to bar the re-use of certain printer ink cartridges was
likely uncopyrightable where the features of the program were largely dictated by external constraints,
such as technical requirements. 387 F.3d at 529-530,
535-536. No similar constraints compelled petitioner to
copy 11,500 lines of respondent’s code.
Relying again on Lexmark, petitioner also briefly reprises its prior argument (Pet. 14-15; see 14-410 Pet. 19)
that the circuits are divided over aspects of the merger
doctrine. But the Federal Circuit correctly held that
merger principles do not apply here because respondent had ample options in creating its declaring code.
Pet. App. 150a-152a. Petitioner does not contend that
any other circuit would have reached a different result
on these facts. And although petitioner asserts (Pet. 15)
that courts are divided on “the role of interoperability
in the merger doctrine,” this case does not implicate interoperability issues in the relevant sense because petitioner did not make Android interoperable with the
Java platform. See p. 6, supra.

 17
II. THE FAIR-USE QUESTION DOES NOT WARRANT
REVIEW
A. The Court Of Appeals Correctly Held That No Reasonable Jury Could Find Fair Use On This Record

1. The doctrine of fair use limits the exclusive rights
a copyright otherwise confers. The doctrine permits
courts to consider whether “rigid application of the copyright statute” in a particular case “would stifle the
very creativity which that law is designed to foster.”
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577
(1994) (citation omitted). Section 107 identifies four
non-exclusive factors that courts “shall” consider in assessing whether a particular use is fair: (1) “the purpose and character of the use, including whether such
use is of a commercial nature”; (2) ”the nature of the
copyrighted work”; (3) “the amount and substantiality
of the portion used in relation to the copyrighted work
as a whole”; and (4) “the effect of the use upon the potential market for or value of the copyrighted work.”
17 U.S.C. 107(1)-(4). A court must evaluate all four factors in light of “the goal of copyright, to promote science
and the arts.” Campbell, 510 U.S. at 579.
The first and fourth factors are particularly relevant
here. Under the first factor, a court examines whether
the defendant’s use is commercial, Campbell, 510 U.S.
at 578, and whether it “adds something new, with a further purpose or different character,” id. at 579. Such a
“transformative” use is more likely to be deemed fair
use because it furthers the goals of copyright by fostering creative expression. Ibid. As to the fourth factor,
because copying that usurps the original work discourages authors from investing the effort that creative expression entails, a defendant “would have difficulty car-

 18
rying the burden of demonstrating fair use without favorable evidence about relevant markets.” Id. at 590.
Relevant markets include “the market for derivative
works,” Harper & Row, Publishers, Inc. v. Nation
Enters., 471 U.S. 539, 568 (1985), which copyright holders enjoy the exclusive right to create and license.
17 U.S.C. 106(2).
2. The court of appeals concluded that, on this record, the first and fourth Section 107 factors weigh so
heavily against fair use that the second and third cannot
tip the balance in petitioner’s favor. Pet. App. 53a.
Although a jury verdict should not be lightly set aside,
the court’s decision was correct. Petitioner’s criticisms
(Pet. 24-29) of the court’s approach lack merit.
a. On the first factor, petitioner contends (Pet. 24)
that the court of appeals improperly “fixat[ed]” on the
code that petitioner copied, rather than examining the
Android platform as a whole. But the court recognized
the relevance of “what [declaring code] does in Java and
in Android, how the audience of computer developers
perceives it, how much [petitioner] took and added,
[and] what the added code does.” Pet. App. 33a. And of
course, “no plagiarist can excuse the wrong by showing
how much of his work he did not pirate.” Harper &
Row, 471 U.S. at 565 (citation omitted).
The court of appeals also correctly held that petitioner had not transformed respondent’s code by integrating a verbatim copy into the Android platform. Pet.
App. 35a-37a. Petitioner used the declaring code for the
same purpose for which it was created, without any
changes to the expression or to the meaning or message
of the packages. Cf. TCA Television Corp. v. McCollum,
839 F.3d 168, 181-182 (2d Cir. 2016) (not transformative

 19
use to copy a comedic routine, without altering its meaning, into the new context of a dramatic play), cert. denied,
137 S. Ct. 2175 (2017). Petitioner also did not transform
the copied work by using it in the “new environment”
(Pet. 26) of the Android platform, just as a copier does
not ordinarily give a copyrighted poem a “further purpose or different character” by including it in his own
book of poetry, Campbell, 510 U.S. at 579; see also, e.g.,
Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 861
(9th Cir. 2017).
Computer code can be used in transformative ways,
such as by excerpting it in a textbook to illustrate a coding technique. And lower courts have wrestled with issues, not presented here, about whether making temporary copies of existing code to “reverse engineer” a system, in order to create compatible works that do not incorporate the pre-existing code, constitutes fair use.
See, e.g., Sony Computer Entm’t, Inc. v. Connectix
Corp., 203 F.3d 596, 603-605 (9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525-1527
(9th Cir. 1993); Atari Games Corp. v. Nintendo of Am.
Inc., 975 F.2d 832, 844-845 (Fed. Cir. 1992); see also
U.S. Copyright Office, Software-Enabled Consumer
Products 54-59 (2016). 2 Courts have generally found
that copying code to discern how an existing product
works, in order to ensure that a new (non-infringing)
product is interoperable with the existing product, is a
transformative use. But here, petitioner took lines of
code from a rival software platform to make a competing platform that is not interoperable with the Java
platform. See p. 6, supra.

2

https://go.usa.gov/xVNyD.

 20
Petitioner argues (Pet. 25-26) that its copying promoted “interoperability” by allowing developers for Android to draw on their preexisting knowledge of the
Java platform. Petitioner identifies no court that has
accepted that expansive conception of interoperability,
which is inconsistent with the Copyright Act’s definition
of the term, see 17 U.S.C. 1201(f )(4) (defining “ ‘interoperability’ ” for purposes of Section 1201(f ) to mean “the
ability of computer programs to exchange information,
and of such programs mutually to use the information
which has been exchanged”). Petitioner’s idiosyncratic
approach would seem to allow any copyist to carve out
the most popular parts of a pre-existing work, on the
ground that familiar content is likely to make the second work more commercially appealing to admirers of
the first. That result would be antithetical to the purposes of copyright.
b. On the fourth factor, the trial record contained
“ ‘overwhelming’ ” evidence that petitioner’s copying
harmed the market for Java, including evidence that
one of respondent’s customers used the existence of the
Android platform as leverage “to negotiate a steep discount” for continuing to use the Java platform in the
customer’s tablets. Pet. App. 50a-51a (citation omitted).
More broadly, the fair-use doctrine does not permit
copying valuable parts of a work to attract fans to a
competing commercial product. Copying “to get attention or to avoid the drudgery in working up something
fresh” disserves copyright’s goals. Campbell, 510 U.S.
at 580. And petitioner’s copying was not necessary to
foster innovation in this context, as demonstrated by
the commercial success of other, non-infringing mobile
platforms like Apple’s.

 21
c. Petitioner contends (Pet. 23-24) that the court of
appeals’ fair-use analysis did not take account of the
“functional nature” of computer code. But the Copyright Act identifies the “nature of the copyrighted
work” as one of the factors that bears on every fair-use
determination. 17 U.S.C. 107(2); see Campbell, 510 U.S.
586. The functional nature of software can often be an
important consideration under that factor.
In this case, the court of appeals held that the second
fair-use factor favored petitioner because the jury could
reasonably have concluded that “functional considerations were both substantial and important” in creating
the declaring code and SSO. Pet. App. 42a. As discussed above, the analysis used to determine whether a
particular use is transformative may be different for
computer programs than for traditional literary works.
But the court of appeals did not suggest otherwise, and
its “overall approach” (Pet. 23) was properly tailored to
the specific facts of this case. To the extent petitioner
believes that copyright law should accommodate “the
development and use of * * * technologies” in a different manner, petitioner is “free to seek action from Congress.” American Broad. Cos. v. Aereo, Inc., 573 U.S.
431, 451 (2014).
B. The Court Of Appeals’ Fact-Bound Decision On Fair
Use Does Not Warrant Further Review

Petitioner identifies no sound basis for further review of the fair-use issue. The court of appeals limited
its fair-use holding to the facts of this case and disclaimed any broader fair-use rule governing other “action[s] involving the copying of computer code.” Pet.
App. 53a-54a. And petitioner does not contend that the
court of appeals’ fair-use decision conflicts with the decision of any other court. Cf. Sup. Ct. R. 10(a).

 22
Many of petitioner’s amici raise concerns about the
potential impact of the fair-use decision on industry
practices. See, e.g., Microsoft Amicus Br. 3-5. But the
court of appeals simply endorsed the unremarkable
proposition that wholesale copying of thousands of lines
of copyrighted code into a competing commercial product for the purpose of attracting developers familiar
with the copyright owner’s work, while causing actual
commercial harm to the copyright owner, is not fair use.
And because of the intensely fact-bound quality of the
decision below, the case would be an unsuitable vehicle
for this Court to establish any broad principles of fairuse jurisprudence. Even a decision reversing the Federal Circuit might establish nothing more than that the
jury’s finding of fair use was reasonable on this record. 3
Finally, additional idiosyncratic features of this case
continue to counsel against further review. See 14-410
U.S. Br. 22-23. The decision below is of limited precedential value because it does not bind either future
Ninth Circuit panels or future Federal Circuit panels in
appeals from district courts outside the Ninth Circuit.
And unlike many of the cases that have been the subject
of reported appellate decisions, this case does not involve the copying of code for an ordinary computer program. Rather, petitioner copied from a “platform” of
programming tools designed to assist programmers in
This case is thus unlike the “seminal” decisions petitioner invokes (Reply Br. 2), in which the Court addressed nationally significant questions of copyright law. See Campbell, 510 U.S. at 571-572
(whether a commercial parody can be fair use); Harper & Row,
471 U.S. at 542 (whether the publication of excerpts of President
Ford’s previously unpublished memoir was fair use); Sony Corp. of
Am. v. Universal City Studios, Inc., 464 U.S. 417, 447-456 (1984)
(whether recording a television broadcast on home video for the
non-commercial purpose of watching it at a later time is fair use).
3

 23
writing other computer programs. As a result, the parties and the courts below have devoted considerable attention to questions—such as the distinction between
declaring code and implementing code, the technical
significance of various features of the Java Standard Library, and the degree to which Java programmers are
familiar with respondent’s prewritten methods—that
may have little significance in more typical disputes.
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
MATTHEW GUARNIERI
Assistant to the Solicitor
General
MARK R. FREEMAN
DANIEL TENNY
SONIA M. CARSON
Attorneys

SEPTEMBER 2019