The Supreme Court on Wednesday heard arguments in a $9 billion copyright infringement fight over Google’s unlicensed use of the popular Java software application to develop its Android platform.
The landmark case brought by Oracle, which owns Java, drew dozens of outside briefs from Silicon Valley, intellectual property experts and others with a stake in how the court resolves a dispute that could fundamentally reshape the legal contours of the tech industry.
Although the implications of the case are potentially sweeping, and could set a major new precedent regarding the Constitution’s promise to promote scientific innovation, the issues presented to the short-handed court were highly technical.
As the eight justices wrestled with the scope of Oracle’s legal rights over its Java code, they invoked a host of analogies — from a football team that seeks to stop a rival from swiping its playbook, to a chef’s interest in keeping secret the ingredients of a signature dish — as if to place the argument on a more familiar footing.
The tech industry has largely backed Google in this case, with rivals like Microsoft, IBM and Mozilla filing amicus briefs on its behalf. Google argued that ruling in Oracle’s favor would be devastating to developers who have come to rely on the assumption that software interfaces — like the code at issue here — can be reused lawfully.
Oracle, for its part, claims that the more than 11,000 lines of code that Google used without its permission infringed on its copyright because the code was a protected form of “expression,” akin to a literary work. Joshua Rosenkranz, who argued the case for Oracle, said a ruling for Google would “decimate the incentive” for developers to create high-quality code.
“That will hurt app developers and the industry in the long run, because who will invest the excruciating time it takes to refine code from the passable to the masterful if all of it can be stolen?” he said.
But several justices responded to Rosenkranz with sharp challenges and expressed apprehension over the potential impact of ruling in Oracle’s favor.
Chief Justice John Roberts seemed concerned about stretching copyright protections so far as to risk giving a creator exclusive rights over an idea that can be expressed only one way, since doing so could effectively stifle competition and innovation.
“Mr. Rosenkranz, let’s say you want to open a restaurant. You’ve got a great new chef, he’s got great new dishes,” Roberts said. “And you say, well, we’ve got to figure out what the menu should look like. You know, of course, you’re going to have, you know, appetizers first and entrees, and then desserts.”
“You shouldn’t have to worry about whether that organization is copyrighted,” Roberts continued. “And I think [Google] is saying that that’s what’s going on here. Every restaurant organizes its menu that way. And you don’t want to discourage people from opening it because they’re going to have to spend their own time trying to figure out what the menu should look like.”
The court’s three more liberal members, Justices Stephen BreyerStephen BreyerSupreme Court hears landmark B copyright fight between Oracle, Google RBG was a champion for creators, too Appeals court revives House lawsuit against Trump border wall MORE, Elena KaganElena KaganSupreme Court hears landmark B copyright fight between Oracle, Google Supreme Court nominee gives no clues in GOP meeting READ: Supreme Court justices mourn death of Ginsburg, ‘an American hero’ MORE and Sonia SotomayorSonia SotomayorSupreme Court hears landmark B copyright fight between Oracle, Google Supreme Court nominee gives no clues in GOP meeting Toomey, swing state Republican, supports Senate moving on Trump Supreme Court nominee MORE, seemed to have misgivings about granting Oracle a copyright over Java after the fact.
“At this point in time, it’s really tough, just like the QWERTY keyboard to go backwards, and very bad consequences will flow if you don’t see that decision,” Breyer said to Oracle’s attorney.
The dispute traces back to the mid-2000s when talks broke down between Google and Oracle over a licensing deal that would have authorized Google’s use of Java code, which Oracle acquired from Sun Microsystems.
Google said it backed out of the deal over Oracle’s requirement that any products Google developed with the code would need to be compatible with the Java platform.
Instead, Google took some 11,500 lines of code from Java without Oracle’s permission and relied on some of that code to build its Android platform.
Oracle responded in 2010 with a copyright infringement suit against Google.
The case eventually made its way to the U.S. Court of Appeals for the Federal Circuit, which sided with Oracle and prompted Google’s appeal to the Supreme Court.
Several of the court’s more conservative justices expressed concerns about whether the Federal Circuit exceeded its authority by overturning a 2012 jury verdict in Google’s favor. After weighing a number of factors, the jury concluded that Google’s use of the Java code, though unauthorized, was fair and thus lawful.
Justice Neil GorsuchNeil GorsuchTrump pick noncommittal on recusing from election-related cases Supreme Court hears landmark B copyright fight between Oracle, Google Amy Coney Barrett is brilliant; her ascent to the Supreme Court is not MORE, a Trump appointee, appeared open to the possibility of reinstating the jury verdict in Google’s favor.
Wednesday’s arguments were originally scheduled for last term, but were postponed due to the coronavirus pandemic. As a result of the death last month of Justice Ruth Bader GinsburgRuth Bader GinsburgPence blasts Harris’s ‘non-answer’ on packing Supreme Court Pence, Harris dodge direct answers in policy-focused debate Eric Trump claims his father ‘literally saved Christianity’ MORE, only eight justices will participate in the decision.
According to attorney Bill Frankel, a shareholder at Brinks Gilson & Lione who heads the law firm’s copyright practice, the court has several different avenues it could pursue.
Aside from delivering a sweeping victory to Oracle, or reinstating the jury verdict in Google’s favor, Frankel said the court could fashion a narrower though perhaps less conclusive ruling that turns on the degree to which Google could have reasonably developed an alternative to Oracle’s application programming interfaces (API).
Such a holding, he said, “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.”
A decision in the case, Google v. Oracle, is expected before July.
Chris Mills Rodrigo contributed to this report.