The long-awaited oral argument in Google v. Oracle took place in early October and it was as lively as anticipated. To give a short overview, the facts are unfavorable to Google. The company, seeking to attract developers to its Android mobile operating system, incorporated components of the popular Java platform but refused the license it was offered. Instead, it blatantly copied over 11,000 lines of Oracle’s declaring code, as well as the creative structure, sequence and organization of the Java platform. Google lobbed a variety of legal arguments at the court, but a clear majority of the justices seemed unimpressed. Faced with reality, Google attorneys turned to policy arguments that denigrate copyright law and ignore the obvious availability of a range of licensing options it could have taken. Because these arguments are dangerous for the future state of copyright law, it’s worth reviewing the context, precedent and particulars that were raised during the oral argument.

First, Google tried to convince the court the code it copied was not protected by copyright. But Congress was clear when it amended the Copyright Act in 1980 that it intended computer programs to be protected as literary works. Google’s claim that Oracle’s code—indeed any declaring code—is per se not copyrightable is in complete opposition to the statute, which does not carve out any particular code from protection. And the cases cited to support its arguments unsurprisingly fail to do so. For example, Google cited the U.S. Court of Appeals for the First Circuit’s 1995 decision in Lotus v. Borland, but that case isn’t even about protection of expressive code—it’s about menu trees. Even more harmful to Google was its reliance on the U.S. Court of Appeals for the Second Circuit’s 1992 decision in Computer Associates v. Altai, where the defendant was caught engaging in literal copying and the court declared that was “copyright infringement.” The rest of that decision, and what it is best known for, was about nonliteral copying and thus irrelevant to Google’s verbatim copying in the present case.

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