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No. 18-956 IN THE Supreme Court of the United States GOOGLE LLC, Petitioner, v. ORACLE AMERICA, INC., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Federal Circuit BRIEF FOR THE COMMITTEE FOR JUSTICE AS AMICUS CURIAE IN SUPPORT OF RESPONDENT RYAN J. WALSH CURT LEVEY Counsel of Record COMMITTEE FOR EIMER STAHL LLP JUSTICE 10 East Doty Street 1629 K Street NW Madison, WI 53703 Suite 300 (312) 660-7639 Washington, DC 20006 [email protected] JACOB M. HAMANN EIMER STAHL LLP 224 South Michigan Avenue Chicago, IL 60604 Counsel for Amicus Curiae The Committee for Justice i TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ ii INTEREST OF AMICUS CURIAE ............................. 1 INTRODUCTION AND SUMMARY OF ARGUMENT ..................................... 2 ARGUMENT ................................................................ 5 I. THE CONSTITUTION AND THE COPYRIGHT ACT CONFER EXPANSIVE PROTECTION OVER THE NATURAL RIGHT TO INTELLECTUAL PROPERTY ...... 5 A. The Copyright Clause Broadly Empowers Congress To Protect Authors’ Natural Right To Intellectual Property ......................... 5 B. Consistent With The Framers’ Far-Reaching Conception Of The Right’s Scope And Justifications, The Copyright Act Extensively Protects Authors’ Natural Right To Intellectual Property ......................... 9 II. SOUND TEXTUALIST PRINCIPLES DICTATE THAT ORACLE CODE AND ORGANIZATION ARE PROTECTED BY THE COPYRIGHT ACT ............ 12 A. Oracle’s Code Is A Protected Literary Work ................................................................ 12 B. Section 102(b) Does Not Preclude Copyright Protection For Oracle’s Code .......................... 15 C. The Merger Doctrine Does Not Apply ............ 20 III.WHETHER TO PARE BACK THE COPYRIGHT ACT’S PROTECTION OF COMPUTER CODE IS A QUESTION FOR CONGRESS, NOT THIS COURT ........................ 21 CONCLUSION .......................................................... 25 ii TABLE OF AUTHORITIES Cases Am. Broad. Companies, Inc. v. Aereo, Inc., 573 U.S. 431 (2014) ...................................... 4, 23, 24 Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832 (Fed. Cir. 1992) .......................... 13, 20 Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908) .................................................. 8 Computer Associates Intern. Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992) .................................... 20 Fourth Estate Pub. Benefit Corp. v. Wall- Street.Com, LLC, 139 S. Ct. 881 (2019) .............................................. 24 Golan v. Holder, 565 U.S. 302 (2012) ................................................ 15 Hamilton v. Lanning, 560 U.S. 505 (2010) ................................................ 21 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) ................................................ 16 Johnson Controls, Inc. v. Phoenix Control Sys., 886 F.2d 1173 (9th Cir. 1989) .......................... 13, 14 King v. Burwell, 135 S. Ct. 2480 (2015) ............................................ 21 iii Lexmark Int’l Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) .......................... 13 Lotus Dev. Corp. v. Paperback Software Int’l, 740 F. Supp. 37 (D. Mass. 1990) ............................ 11 Mazer v. Stein, 347 U.S. 201 (1954) ............................................ 8, 19 Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1372 (10th Cir. 1997) ....................... 16 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .............................................. 5 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) .................................................. 6 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ........................................ 23 Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) .................................... passim Stewart v. Abend, 495 U.S 207 (1990) ................................................. 24 Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834) ....................................... 8 White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 (1908) ....................... 11 Zalewski v. Cicero Builder Dev. Inc. 754 F.3d 95 (2d Cir. 2014) ...................................... 20 iv Statutes 17 U.S.C. § 101 .................................................. passim 17 U.S.C. § 102 .................................................. passim 17 U.S.C. § 117 .......................................................... 13 17 U.S.C. § 201 ............................................................ 9 The Copyright Act of 1790, 1 Stat. 124-126 (1790) .... 9 The Copyright Act of 1831, 4 Stat. 436 (1831) ........... 9 The Copyright Act of 1870, 16 Stat. 198 (1870) ......... 9 The Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075 (1909) ................................................. 9 Other Authorities 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2019) ................................. 13 2 Patry on Copyright ........................................... 10, 19 Adam D. Moore, A Lockean Theory of Intellectual Property, 21 Hamline L. Rev. 65 (1997) .................. 6 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 56 (West 2012) ............................................................. 21 B. Bailyn, The Ideological Origins of the American Revolution (1967) ..................................... 5 v Gerald P. O’Driscoll Jr. and Lee Hoskins, Property Rights: The Key to Economic Development 482 Policy Analysis (Aug. 7, 2003)......................... 11 Jessica Litman, Sharing and Stealing, 27 Hastings Comm. & Ent L.J. 1 (2004) ...................... 8 John Locke, Second Treatise of Civil Government (J. Gough ed. 1947) ................................................... 6 Justin Hughes, The Philosophy of Intellectual Property 77 Geo. L.J. 287 (1988) .............................. 6 Randolph J. May and Seth L. Cooper, Liberty of Contract and the Free Market Foundations of Intellectual Property, 11 Perspectives from FSF Scholars 27 (July 29, 2016) ...................................... 7 Robert P. Merges, Justifying Intellectual Property (2011) ........................................................................ 6 Robert P. Merges, One Hundred Years of Solicitude: Intellectual Property Law, 1900 – 2000, 88 Cal. L. Rev. 2187 (2000) .......................... 11 The Federalist No. 43 (James Madison) ..................... 8 Thomas B. Nachbar, Constructing Copyright’s Mythology, 6 The Green Bag 2d 37 (2002) .............. 7 USPTO, Intellectual Property and the U.S. Economy: 2016 Update ........................................... 12 vi Yvette Joy Liebesman, The Wisdom of Legislating for Anticipated Technological Advancements, 10 JMARRIPL 154 (2010) ...................................... 10 1 INTEREST OF AMICUS CURIAE1 Founded in 2002, the Committee for Justice (CFJ) is a nonprofit, nonpartisan legal and policy organization dedicated to promoting the rule of law and preserving the Constitution's protection of individual liberty and property rights. The Founding Fathers recognized that the right to security in one’s property is a sine qua non of liberty and forms a bulwark against an overweening government. CFJ focuses, in part, on the preservation of these principles at the intersection of law and technology, including intellectual property law. CFJ believes that the Constitution’s protection of intellectual property and physical property with equal force has helped to make the United States the most prosperous society in the history of the world. CFJ advances its mission by, among other things, filing amicus curiae briefs in key cases and educating government officials and the American people about the Constitution and the proper role of the courts. In addition to its considered views on the fundamental legal principles at issue in this case, CFJ offers subject-matter expertise. Before becoming an attorney, our President, Curt Levey, earned undergraduate and graduate degrees in computer 1 Pursuant to Rule 37.3, all parties consent to the filing of this brief. Petitioner Google LLC has provided blanket consent, and Respondent Oracle America, Inc. has provided written consent. No counsel for a party has authored this brief in whole or in part, and no person other than amicus curiae has made a monetary contribution to fund its preparation or submission. 2 science, worked for five years as a scientist at an artificial-intelligence startup company, and invented and patented pioneering technology for explaining the decisions made by machine-learning models. His experience writing code and seeking intellectual- property protection for his invention has informed CFJ’s views in this case. INTRODUCTION AND SUMMARY OF ARGUMENT The Copyright Act furthers the design of the Constitution’s 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 been a driver of America’s unparalleled economic prosperity and has made the United States the global leader in software and computing. The Court’s task here is merely to apply that Act, with its extremely capacious protections, to Oracle’s creative expression
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