After two trials, two Federal Circuit decisions, and two solicitor general recommendations against granting cert, the Supreme Court decided Friday to weigh in on the titanic copyright struggle between Oracle and Google over Java APIs.

Up until now, the focus has been on whether the Federal Circuit correctly decided the issues of copyrightability and fair use. Now that they've granted cert, the justices will be painting on a blank canvas, bounded only by outdated copyright statutes and their own on-again, off-commitment to stare decisis.

So I reached out to two scholars who've been following the case for many years as to what three holdings they'd most like to see when the Supreme Court renders its decision in Google v. Oracle.

Here are three from Peter Menell, co-director of the Berkeley Center for Law & Technology and co-author of an amicus brief supporting Google at the cert stage earlier this year:

➤ Copyrightability: Based on the fundamental channeling principle enunciated in Baker v. Selden, 101 U.S. 99 (1879), as reflected in Section 102(b) of the Copyright Act, the functional requirements of APIs for computer systems and devices, like the internal workings of other machines, are outside of the scope of copyright protection even as non-functional aspects of the implementing code for APIs are protectable.

➤ Fair Use: Based on the resolution of the copyrightability issue in point 1, there is no need for the Supreme Court to address the fair use issue.

➤ Federal Circuit Jurisdiction Regarding Software Copyright Cases: The Supreme Court should call upon Congress to amend the Federal Circuit's jurisdiction to ensure that regional circuit law remains dominant for interpreting copyright law, as Congress intended in the Federal Courts Improvement Act (1982). See Peter S. Menell, API Copyrightability Bleak House: Unraveling and Repairing the Oracle v. Google Jurisdictional Mess, 31 Berkeley Tech. L.J. 1515 (2016). There are easy fixes for the jurisdictional mess, such as diverting the appeal of copyright issues in cases with a patent law question to the appropriate regional circuit court of appeals or, in cases where the patent and copyright issues are intertwined, enabling litigants to seek en banc review of copyright determinations in the appropriate regional circuit court of appeals.

Now here are three from Sandra Aistars, senior scholar and director of copyright research & policy at George Mason University's Center for the Protection of IP. Aistars led a collaborative effort at the school to file an amicus brief in support of Oracle on the second go-round at the Federal Circuit:

➤ First, code is copyrightable. The material that Google copied is code, and Congress decided that it is copyrightable. There is no special rule in the Copyright Act that says if you label code an "interface," it is not protectable.

➤ Second, popular works are particularly in need of copyright protection. Java should not become less protectable because developers were familiar with and liked creating programs for it. A popular book would not be treated that way, nor should a popular program.

➤ Third, using code for its same purpose is not fair use. Google admits that it used Oracle's code to perform the same functions in Android that it performed in Java. That is the epitome of an unfair use, and it shows why Google's copying was so harmful to the market for Java.

My thanks to Professor Aistars and Menell for a reminder of some of the principles at stake as the case rolls ahead.

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