WASHINGTON D.C. – The Supreme Court on Wednesday heard arguments from Oracle and Google, the two tech powerhouses are currently ensnared in a historic $9 billion copyright infringement lawsuit. The issue at the center of the case involves Google’s development of its Android platform by using Oracle’s Java software application without a license.
However, the ramifications of the case go far beyond mere financial recompense; the outcome could very well alter the idea of intellectual property and the concept of fair use in the tech industry. Many computer programs and software libraries are developed by recreating the functionality of application programming interfaces (APIs) from commercial or competing products to aid developers in interoperability between different systems or platforms.
The origins of the case come from the general-purpose programming language Java’s APIs, which Google has admitted to using while initially developing the company’s Android operating system; the amount of code used took up about 11,000 lines, reports say. Google has since halted use of Java and now utilizes a system that is not bound by copyright constraints – while acquiring a codebase that is considered superior to Java – known as OpenJDK.
Oracle originally sued Google in 2010 for copyright and patent infringement in the District Court for the Northern District of California for $8.8 billion. Oracle based their complaint on the assertion that APIs are able to be copyrighted; Google’s defense was that APIs are unable to be copyrighted and instead fall under the “fair use” category. Previously, two jury trials held in District Courts found in Google’s favor, but upon appeal the Federal Circuit court reversed both decisions and sided with Oracle, affirming the company’s assertion that APIs can, in fact, be copyrighted.
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Google then successfully petitioned the Supreme Court to hear the case in 2019, but due to delays caused by the ongoing COVID-19 pandemic the case was pushed back to October 7, 2020.
The tech industry has been watching this case closely, with a majority siding with Google, the reason being that if the Supreme Court upholds the Federal Circuit court’s decision in Oracle’s favor, it is believed that companies will be forced to implement deliberately incompatible standards to protect themselves from the risk of complex litigation. This would be moving away from the current trend in software development that has focused on improving compatibility between different services, which creates more integrated platforms for end users.
That said, a Google win at the Supreme Court level could mean that software copyright protections could be significantly weakened, allowing companies with more resources to develop improved software based on designs created by smaller companies, ultimately killing off the desire for innovation in the tech industry.
The arguments were heard by the Supreme Court’s current eight Justices – via teleconference due to the ongoing pandemic – minus the recently-passed ninth Justice, Ruth Bader Ginsburg. Several of the Justices seemed to wrestle with the vast complexities presented by the case, illustrating that the law is still playing catch-up with technology.
The more liberal-leaning Justices seemed to have issues with the idea of allowing Oracle to copyright their Java API retroactively; the more conservative Justices seemed to side more with Google and their unauthorized use of Oracle’s code, calling it “fair” and “lawful.” In addition, the conservative Justices asserted that the lower court “exceeded its authority” by overturning the previous verdict that was initially in Google’s favor.
J. Michael Keyes, a partner at the international law firm Dorsey & Whitney, is an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. Keyes has been following the Google v. Oracle case through the courts and listened to the arguments presented to the Supreme Court.
“The U.S. Supreme Court heard oral arguments in one of the most significant copyright cases to reach the Court. The case has potentially huge implications on copyright protection for software, fair use, and the sanctity of jury verdicts,” he said. “Both parties’ counsel were peppered with questions that focused primarily on copyright protection for software, the idea/expression merger, and whether Google’s use was ‘fair’ or not.”
Keyes noted that several of the Justices’ questions seemed skeptical of Google’s position and troubled by Google’s use of Oracle’s software code.
“Justice Roberts said just because you ‘crack the safe’ doesn’t give you the right to take the money. Justice Alito was worried that if the Court adopted Google’s position it would effectively end copyright protection for software,” he said. “Justice Sotomayor appeared to express her skepticism of Google’s position in pretty blunt terms: ‘What gives you the right to use their original work?’ Justices Gorsuch and Kagan seemed troubled that other tech giants like Apple and Microsoft have created successful mobile platforms without copying Java—why should the Court give Google a pass?”
The Supreme Court is expected to render a decision in the case before July.
Editors note: Christopher Boyle contributed to this report.