Tomorrow, the Supreme Court will continue with the TV broadcast of the “live” audio portions of its hearings, with an eight-Justice Court. The first case audio will be broadcast on C-SPAN1, one of its three TV networks. Both hearings can also be heard on C-SPAN’s website at http://c-span.org by clicking on the words SUPREME COURT at the upper right. Two cases are scheduled, lasting about one hour each.
First case, starting at 10 a.m.:
Google v. Oracle America
Background: Since the Computer Age dawned almost 40 years ago, the Supreme Court has been faced with a major task of deciding what parts of the new digital modes of communications can be protected by copyright. Being protected by copyright means that the creator gets the exclusive right to use the mode for a period of years, with veto power over others seeking to use it unless they are willing to pay sometimes sizeable sums of money to license the use. (The Constitution itself says that, in order to “promote the progress of science and the useful arts,” Congress has the authority to give “authors and inventors” an “exclusive right…for limited times” to their “writings and discoveries.”)
The rapid growth of new computer technology over quite a short span of time has been aided by “open source” access to new software creations without copyright restrictions, and also has been assisted by copyright holders sharing their creations with others for low licensing fees, or none at all.
Still, those who have obtained copyrights in the software field hold a very valuable asset, and often have vigorously defended their rights when their creations have been used without permission. There have been several high-profile court cases growing out of such disputes, and one of the most visible of these has now reached the Supreme Court – for a second time.
For about ten years, two of the giants in the software industry – Google and Oracle – have been feuding in the federal courts over Oracle’s copyrights on one of the most basic computer-enabling creations: “Java programming language.” That is the name of a vast collection of codes and sub-codes, only a part of which are protected by copyright. The basic language is not copyrighted, but Oracle holds rights to what is called the Java Standard Library, which contains building blocks of code that other programmers can use in writing new computer programs and “apps.” The Library is made available to programmers under different licensing arrangements, including one on which Oracle charges no royalty (licensing fees).
The current dispute involves Google’s second trip to the Supreme Court, seeking to nullify Oracle’s copyrights and thus to avoid potentially huge sums in damages that could be assessed for infringing on those rights. In the new appeal, Google again seeks that result, but also has added an alternative plea: that is, that its use of the copyrighted software was legal under the doctrine of “fair use,” which excuses some beneficial even if unlicensed uses of a copyrighted creation.
What is the technology behind the legal fight? In over-simplified terms, the Java codes at issue are software that facilitate commands to bring about functions on hand-held devices such as smartphones, but also functions that enable communicating via the Internet. Just as two people can only communicate if they are using a common language, digital devices require the same in the language expressed in codes.
The story of the Java programming language goes back to 1995, when Sun Microsystems (since taken over by Oracle) released the initial formulation. It had been developed by a team headed by a Sun programmer, James Gosling. The name “Java” is not an acronym for the basic program; Gosling simply hit upon that name one day when he was having coffee near his office.
Google, known to most computer users as the easy-to-use search engine, is also a developer of mobile devices, such as smartphones. This case grew out of its development of the Android operating system, the beating heart of such devices. Google also created a set of programming tools so that others could generate “apps” for use on Android devices. The Google platform uses Java language. Google created much of the architecture of that platform itself, but copied a substantial number of code packages (about 7,000 lines) from the Java Standard Library. That led Oracle to sue in August 2010, claiming infringement on Oracle’s rights in those packages.
Google defended itself, arguing that the Java codes were not eligible for copyright because, rather than being a form of expression, they constitute a functional method of operation. Federal copyright law expressly excludes such methods, or systems. (The difference can be explained by a hypothetical: if one writes a book about how to do a particular kind of surgery, describing that in an original way, copyright protects the book from being copied, but does not bar another surgeon from performing that procedure. The book is expression, the surgery is a method.)
In the first decision in this case, a federal court jury ruled that Google had infringed Oracle’s rights in the Java code packages. The jury, however, was unable to make up its mind whether that infringement was excused as a “fair use.” The trial judge overturned the verdict on infringement, agreeing with Google that the code packages described a method of operation, ineligible for protection. The judge rejected other theories of eligibility, too.
A special federal appeals court that decides issues of intellectual property law, such as copyrights and patents, ruled for Oracle. The decision sent a wave of alarm through the programming community, which feared that one company would now stifle the growth of new applications and devices that would work off of the widely exploited Java library codes. The appeals court declared that, even if the Java packages did perform a function, they were in fact a form of expression. Since all computer programs are designed to perform some function, it would take away all protection to find them outside the protection of copyright, and that would conflict with Congress’s intent to protect software codes, the decision said. The appeals court ordered a new trial on the “fair use” question.
Google tried to take the case to the Supreme Court, but it turned the appeal aside five years ago. A new jury ruled for Google, finding its use of the code packages to have been a “fair use.” Again, a federal appeals court ruled for Oracle, rejecting the “fair use” defense and refusing Google’s request to reconsider its earlier ruling that the Java packages were eligible for copyright. That led to Google’s new appeal to the Supreme Court. Although the Trump Administration, asked by the Court for its views, urged denial of review, the Justices nevertheless accepted review, probably sensing the clear importance to the software industry, given the ubiquitous use of the Java codes in new applications.
The questions before the Court: Are computer software programs in the form of libraries of codes incorporating widely used programming language eligible for copyright protection, and, if they are, was Google’s actual use of the Oracle codes legal as a “fair use”?
Significance: At a very broad level, there has always been some tension in the Constitution between the right to control expression, under the copyright provision in Article I, and the open society guarantees of the First Amendment’s free speech and free press guarantees. That tension is now quite evident in the Computer Age, because digital expression has been such a free-for-all, a medium open not just to those who own a newspaper or a printing press or a broadcast station, but to anyone who has a computer.
The tension is eased, somewhat, by the fact that ideas themselves cannot be copyrighted; there is no legal monopoly available for an original thought. The protection comes when the thought is expressed in an original way, in writing or in images, and now even in the arrangement of 1s and 0s, the foundation of computerized language. There is no doubt, whatsoever, that an original software program is eligible for monopoly control through copyright. But, as the grand struggle between Google and Oracle illustrates, it can be tricky, indeed, to know what is eligible for that protection.
The record of this case as it has developed before the Court includes a sizeable stack of briefs, especially from other giants in the software industry such as Microsoft, but also by programmers and innovators of a wide variety. Predictably, those who favor broader protection for programs argue that it encourages innovation by rewarding it with economic advantage, at least for a time, while those who favor more limited protection contend that such a monopoly stifles innovation, especially for small “start-up” developers who can exist only by taking advantage of the creations of others before them.
It is merely stating the obvious to say that the impact of this case on the digital commerce of America is likely to be huge. And that would be true whichever way the decision goes, both on the question of defining eligibility of software for copyright, and on the question of how wide the “fair use” enclave of protected copying is to be. For the disinterested observer, if there are any left in the world of computers and handheld devices, it is difficult to choose which side one would want to win.
It is not at all out of the question that the Court, if it decides this case with only eight Justices participating, could wind up split 4-to-4. The real-world result of that would be that Oracle wins, on both questions, but there would be no written opinion to explain why it had won. An even split would result only in a simple, one-line decision to uphold the federal appeals court decision in favor of Oracle.
Second case, starting at about 11 a.m.:
Ford Motor Co. v. Montana 8th Judicial District Court
(together with Ford Motor Co. v. Bandemer)
Background: As a general rule, states generally have authority to regulate activity only that occurs inside the borders of that state. Thus, it can reach a company that is based in another state only if that company has a significant presence or activity within the regulating state.
A pair of new cases, being heard together by the Supreme Court, test how far state courts may go in reaching companies based elsewhere, for incidents that occur inside a state’s borders. The dispute is over how far that authority can go without violating an interstate company’s right to fair treatment (that is, its constitutional right to “due process”).
Few activities are more closely tied to state governments’ basic interests than the legal consequences of traffic accidents. Two accidents, one in Montana, one in Minnesota, involving vehicles made by Ford Motor Co., are at the center of these cases. Ford is headquartered in Dearborn, Mich., but obviously does business throughout the country; that, however, does not necessarily mean it can be sued everywhere.
In the Montana case, a state resident, Markkaya Jean Gullett, was driving a Ford Explorer SUV, along a highway in Montana in 2015 when the tread came off of one of its tires. She lost control of the vehicle, and it rolled into a ditch; she died inside the vehicle. The representative of her estate, Charles Lucero, sued Ford in state court, claiming that the Explorer had a flawed design, and that Ford had failed to warn consumers about that and had acted negligently in making Explorers.
Ford tried to get the case dismissed, arguing that there was no link between the lawsuit against it and any business that Ford did inside Montana. The Explorer had been built in Kentucky, and was owned in two other states before it wound up in Montana. Thus, Ford said, it had nothing to do with the Explorer or its operation in Montana..
A state court ruled that there was enough of a connection to Montana, because the deceased woman lived in the state, the accident happened there, and that’s where the flawed design caused the accident.
The Montana Supreme Court, on Ford’s appeal, ruled for the woman’s estate, finding that Ford had availed itself of the right to do business in Montana, benefitted from that, and had sold vehicles and parts in the state. It was enough, the state tribunal said, that Ford had introduced the Explorer into the market. It made no difference that it was the accident, not Ford’s business in the state, that justified holding Ford accountable, the state court said.
In the Minnesota case, Adam Bandemer, who lives in the state, was a passenger in 2015 in a 1994 model Crown Victoria when the vehicle crashed into the rear of a snow plow, and the car went into a ditch. In his lawsuit against Ford, Bandemer argued that the airbag on the passenger side did not deploy, and he suffered a severe brain injury in the accident. The driver, who was the car’s fifth owner, was also sued.
Ford, sued for some of the same legal claims made in the Montana case, tried to get the lawsuit against it dismissed. It contended that the Crown Victoria involved had been made in Canada and had been owned in North Dakota before winding up in Minnesota, when it was 17 years old. The trial court and higher courts, including the Minnesota Supreme Court, ruled against Ford based on the same reasoning used by the Montana courts.
Ford appealed both cases to the Supreme Court, and the Justices granted review, apparently to resolve the validity of the “stream of commerce” theory that led to Ford’s defeat in both cases. The two cases were consolidated, to be heard and decided together, with one hour of hearing.
The question before the Court, in both cases: Does the Constitution allow a company to be sued in a state court for damages for an incident involving one of its products, when the business operations it does in that state had nothing to do with the incident? (In other words, is introducing a product into a nationwide market enough to allow every state to sue it for harms the product does in a state?)
Significance: In prior rulings, the Supreme Court has made clear that, for a state court to be able to decide a case against a company based elsewhere, the legal claims must meet two business activity tests: did the company do any business in the state, and, if it did, did the incident arise out of or relate to that specific activity inside the state?
The lower courts have been split on this theory of state court jurisdiction, and the Supreme Court has twice before – in 1991 and 2017 – stepped in to resolve the question, only to pass it up each time. Ford argues, in legal briefs that closely track each other’s reasoning, that the Court “should not leave the question unanswered any longer.”
Most courts, it contends, have ruled that a lawsuit must claim some link to activity that the firm does in the state. But, Ford argues, the two states’ courts in these cases took a different approach, extrapolating from the claims in the lawsuit about what happened inside the state into justification for holding the company to blame for actions that happened elsewhere, simply because Ford has some contact with the state.
The auto company places most of the emphasis of its appeals on the split among lower courts, rather than on the economic realities of holding interstate companies responsible for incidents that are purely localized in nature. Unless the court settles this controversy, Ford says, lawyers for people harmed by commercial products will shop around for sympathetic state courts, and will find it simple to cite some connection a major company has with that state.
The individuals on the other side of the two cases interpret the lower court rulings on the controversy differently than Ford does, and argue that no court, anywhere, has ever adopted the “rigid” cause-and-effect standard that Ford wants the Court to adopt.
Obviously, the outcome will have a wide impact on the interstate operations of major companies, as well as on the legal prospects for increased protection of consumers from harms done by products made by those big firms.
The Supreme Court’s current conservative majority has a reputation of being quite sympathetic to the legal claims of business firms. But countering that in these cases is the reality that the same majority is also sympathetic to states’ rights.
Because Monday is a legal holiday, the Court’s next hearings will be on Tuesday. A description of those cases will appear on Monday, in advance.