On Oct. 7, the Supreme Court heard opening arguments on whether Google should be made to pay Oracle billions of dollars over the long-running lawsuit over software that is being hailed as the copyright case of the decade.
Google v. Oracle concerns Google’s reliance on portions of Java, a programming language, in its Android operating system. Oracle, which acquired Java in 2010 when it bought Sun Microsystems, said that using parts of it without permission amounted to copyright infringement.
In 2016, a San Francisco jury found that Google had not violated copyright laws because it had made “fair use” of the Java code. Fair use is a legal doctrine in copyright law that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.
After the 2016 decision, a specialized appeals court in Washington, the United States Court of Appeals for the Federal Circuit, disagreed with the decision made by the San Francisco jury.
Oracle is asking for billions of dollars in damages over what it claims is Google’s unlawful copying of about 11,000 software code lines.
The law generally treats computer programs as copyrightable. However, Google argued the type of code at issue is not copyrightable. Google claims the code involves minimal creative expression and is invoked by developers only as a shorthand mode in their code to refer to more extended portions of other instructions.
Counsel for Google was careful to stress that the case concerned copyright law, which protects expression instead of patent law, which protects inventions.
The programs that Google is referring to are known as Application Programming Interface or APIs. APIs are omnipresent in today’s digital society and crucial to enable different apps to work together.
Oracle claims that the APIs, at least the ones created by Sun Microsystems that they purchased, are an expressive work that is eligible for copyright protection.
The Supreme Court spent a large portion of oral arguments attempting to find the appropriate real-world analog to the complicated computer code case. According to CNN Business, the analogies extended from grocery stores to restaurant menus to QWERTY keyboards.
Chief Justice John Roberts suggested that Google’s use of the code could perhaps be no different than a restaurant owner copying the basic structure of another restaurant’s menu through the separation of appetizers, entrees, and desserts.
Counsel for Oracle, E. Joshua Rosenkranz, responded that “if it’s a standard way of doing things, it is not protected.”
Rosenkranz accepted the Chief Justice’s analogy in that particular context but added that the use of Java code was completely different.
“It’s not a menu just saying here are apps and here are dinner plates, with standard descriptions that everyone uses of those apps and dinner plates. We fill the blanks in 30,000 times over… and each item had its own description that no one else was using,” said Rosenkranz.
Justice Sotomayor inquired into how the PC platform’s movement to the mobile phone platform did not constitute a transformative step.
“Imagine a motion picture that has only been released in theaters, and somebody gets the print and offers to livestream it over the internet. It’s the same content simply being used on a different platform. No one would think of that as transformative,” said Malcolm L. Stewart, a lawyer for the federal government who argued in support of Oracle.
The justices seemingly acknowledged the importance of their decision and the consequences of the case no matter how they rule.
“I’m concerned that, under your argument, all computer code is at risk of losing protection,” Justice Samuel A. Alito Jr. told a lawyer for Google.
“We’re told that if we agree with Oracle, we will ruin our tech industry in the United States,” Chief Justice John G. Roberts Jr. said, acknowledging the flipside of concerns.