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Justice Department: Say ‘No’ to Google on Java Copyright Petition

The U.S. Justice Department has urged the Supreme Court to deny Google's latest petition to review rulings that the Alphabet subsidiary infringed on Oracle's copyrights to Java code -- rulings that could cost Google billions.

This petition keeps alive the nine-year legal struggle over 37 Java APIs Google used to develop its Android operating system, which Oracle has maintained were copyrighted, and for the violation of which Oracle is demanding $9 billion in damages. The courts have gone back and forth on the issues in this case, but eventually came down on the side of Oracle's claim.

Google filed a writ of certiorari with the Supreme Court earlier this year, asking for a review of the earlier judgment of the United States Court of Appeals for the Federal Circuit in this case.

"Above and beyond the broader implications for copyright law, this case warrants the Court's attention for its sheer practical importance," the petition reads. The ruling " ... threatens the prevailing approach to building computer software ... "

Google cited changing practices among software developers to support its petition. "Developers are not coding programs entirely from scratch," the company argued, "as they may have been in the early days of programming. Instead, new programs now incorporate and rely on preexisting interfaces to trigger certain functions, which saves the wasted effort of reinventing and retesting what came before."

In late September, the Solicitor General filed an amicus curiae brief to express the views of the United States on Google's petition. "Computer code can be used in transformative ways," it reads, "such as by excerpting it in a textbook to illustrate a coding technique. And lower courts have wrestled with issues, not presented here, about whether making temporary copies of existing code to 'reverse engineer' a system, in order to create compatible works that do not incorporate the pre-existing code, constitutes fair use ... . But here, petitioner took lines of code from a rival software platform to make a competing platform that is not interoperable with the Java platform."

"Petitioner copied 11,500 lines of computer code verbatim, as well as the complex structure and organization inherent in that code, in order to help its competing commercial product. The record demonstrates, moreover, that petitioner's unauthorized copying harmed the market for respondent's Java platform ... ."

"Petitioner identifies no sound basis for further review of the fair-use issue," the Justice Department concluded.

Oracle originally sued Google in 2010, and the search engine giant's argument that its use of the Java APIs was allowed under the fair use provisions of the federal copyright law, and therefore did not infringe on Oracle-owned copyrights, failed to persuade the court. "There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform," a panel of three Federal Circuit judges wrote in their opinion.

The Supremes are certainly free to consider Google's petition, but they have stayed out of the fight so far. We're surely approaching the conclusion of this seemingly immortal struggle, but given what it will cost the loser, I wouldn't bet on it.

Posted by John K. Waters on October 9, 2019