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Google v. Oracle Finally in SCOTUS's Hands

The decade-long court battle between Google and Oracle over 37 Java APIs Google used without Oracle's permission in its Android mobile operating system is finally coming to an end. (Really this time…. probably.) Oral arguments before the Supreme Court of the United States (SCOTUS) ended on Friday.

The case has been pending at the High Court for almost two years. It was set originally for oral argument in March, but was rescheduled to this fall when the coronavirus pandemic scrambled the spring argument sessions. (My earlier report includes a summary of the long history of this case, which started when Oracle sued Google in 2010.)

Google is asking the court to reverse a federal circuit court's finding that the structure, sequence, and organization (SSO) of Oracle's Java API package was copyrightable, and also that Google's use of that SSO was not a "fair use" under copyright law.

There's a lot at stake in this case--and not just the $8.8 million in damages Oracle is seeking from Google, which is an Alphabet subsidiary. It has the potential to be one of the most important copyright cases of the decade.

In January, several small companies and tech organizations joined the Mozilla software community in a friend of the court brief, urging the High Court to reverse the federal circuit court's decision.

The brief makes its argument from the perspective of small, medium, and open-source tech organizations, said Abigail Phillips, head of the Mozilla Foundation's legal department, in a blog post. "Mozilla believes that software reimplementation [the process of writing new software to perform certain functions of a legacy product] and the interoperability it facilitates are fundamental to the competition and innovation at the core of a flourishing software development ecosystem."

The list of organizations on the Mozilla amici curiae includes Medium, Cloudera, Creative Commons, Shopify, Etsy, Reddit, the Open Source Initiative, Mapbox, Patreon, the Wikimedia Foundation, and the Software Freedom Conservancy.

"The case has potentially huge implications on copyright protection for software, fair use, and the sanctity of jury verdicts," attorney J. Michael Keyes told ADTmag in an email. "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.'"

Keyes is an intellectual property attorney and a partner at the international law firm Dorsey & Whitney. He listened to the argument last week, and offered a rundown:

"Several of the justices' questions seemed skeptical of Google's position and troubled by Google's use of Oracle's software code," Keys said. "Justice Roberts said [that] 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. 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?

Oracle's counsel was also met with questions about whether its "declaring code" was copyrightable, Keyes said.

"Surprisingly, there wasn't a big emphasis or focus on the federal circuit's disruption of the jury verdict on fair use," Keyes added. "Justice Alito did seem to question whether the lower court applied the wrong standard, s did Justice Gorsuch. Given that there isn't a single instance of a federal appeals court overturning a jury verdict on fair use, it seemed like this issue would have received more 'air time.'

Bill Frankel, shareholder at Brinks, Gilson & Lione, and chair of the firm's copyright group, also reached out with an email.

"The Justice's grappled with Google's argument that software interfaces are purely functional lines of code and not the kind of creative expression that copyright exists to protect," Frankel said. "Where do you draw the line between copyrightable code and uncopyrightable code? But they deeply probed into the issue of the merger doctrine and whether there has been a merger of the expression in Oracle's declaring code and the functional purposes of that code. Were the Court to adopt Google's argument of merger, the holding presumably would be limited to the Java declaring code at issue, and would leave open, if not uncertain, the scope of copyright protection for APIs in future disputes."

Frankel noted (as did many delighted reporters) the number analogies the Justices came up with during arguments to get their arms around some technical concepts.

"The Justices came up with a number of analogies to suggest the possible functionality of Oracle's APIs," he said, "including mechanical devices like QWERTY keyboards and telephone switchboards and the like. But these analogies seemed inapposite. Chief Justice Roberts' analogy to a menu was closer to the mark. But even a menu divided into appetizers, entrees, and desserts can be written a myriad of ways. At the end of the day, Oracle's code was original, creative, and properly the subject of copyright. The questions to be resolved are what the scope of that copyright should be and how the fair use factors should properly be weighed in the context of software copyrights."

Posted by John K. Waters on October 14, 2020