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In Google/Oracle case, Supreme Court will weigh software's future

06 October 2020
Dan Ackermann

Oracle and Google will have their day at the Supreme Court Wednesday, tangling via teleconference in oral arguments aimed at resolving a decade-long battle over whether common interfaces between software programs can be protected by copyright.

Why it matters: The case lies at the heart of how modern software development works, and each side says a ruling in the other's favor will chill innovation. More narrowly, the Supreme Court may settle the question of whether Google owes Oracle nearly $9 billion in damages, as Oracle claims.

Between the lines: When Google developed the Android smartphone operating system more than a decade ago, it tapped Java code that is now owned by Oracle so that Java programs could run.

  • That code, known as an application programming interface or API, lets other programs "speak" to Java programs.

At issue in the case is whether copyright protection should extend to APIs. Oracle says it should, and that Google stole its property. Google and other allies hold that the industry has never operated that way, and restricting APIs will inhibit innovation and harm consumers.

Catch up quick: Oracle and Google have swapped victories in lower courts.

  • Most recently, the Federal Circuit appeals court ruled in Oracle's favor in 2018, prompting Google to seek Supreme Court review.
  • The coronavirus pandemic led to a postponement of oral arguments before the high court, originally slated for March.

Background: Oracle, which enjoys a good relationship with the Trump White House, has won backing from the Justice Department.

  • Oracle is in the middle of trying to become TikTok's "trusted technology partner" in the U.S., as part of a convoluted process set off by the Trump administration.
  • Google, meanwhile, is facing an imminent Justice Department antitrust lawsuit and regulatory pressure on Capitol Hill.

What Google says:

  • "A negative ruling would introduce new friction for interoperability... which is what lets you take a picture using an iPhone, store it in Google Photos and edit it using a Microsoft laptop," Kent Walker, Google's general counsel and senior vice president of global affairs, told Axios.
  • He described APIs as "plugs and sockets that help programs work with each other," which had not been thought of as copyrightable until Oracle sued Google over them.
  • Oracle's arguments "miss the larger purpose of copyright and the way software works, and some of the key legal principles that have meant that American technology companies have led the world," Walker maintained.

What Oracle says:

  • "We just have a different view of things," Oracle's executive vice president, Ken Glueck, told Axios. "Their view is to monetize as much content as they can, whether it belongs to them or not."
  • Oracle has pushed back on Google and its supporters' claim that a ruling in favor of Oracle would inhibit software interoperability. Glueck called that a "sky is falling" argument contradicted by technological advances that have continued even after the most recent court precedent — the 2018 Federal Circuit ruling — favoring Oracle's position.
  • "The notion that weaker [intellectual property] leads to more innovation is just backwards," he said.

What's next: Both sides are bullish on their odds of prevailing.

  • "We're optimistic the argument we're making is going to appeal to a broad cross-section of the court," Walker said. "If you look at the court's tendencies over the last ten years or more, they have been on the side of innovation."
  • Glueck said Oracle has no specific predictions for how the case will go but said the court's roster of five conservatives bodes well for the company.

Of note: This is the first week the Supreme Court is hearing oral arguments since the death of liberal Justice Ruth Bader Ginsburg, who had a record of defending intellectual property owners.

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