No Allies for Oracle’s Win Against Google

These Kats don't give up without a fight

The Supreme Court of the United States (SCOTUS) has received over a dozen amicus briefs in support of Google against Oracle in a long-lasting battle for Java API (software interface) usage. Among others, the Electronic Frontier Foundation, Microsoft, Red Hat, Mozilla, Python Software Foundation, Developers Alliance, along with IP scholars, computer scientists, software innovators, start-ups, and investors raised their concerns about the rulings of the Federal Court of Appeals in 2014 and 2018.  

Google’s last gambit

The legal saga between the two software mammoths started in 2010 after Oracle acquired Sun Microsystems and its proprietary rights to Java. The US Court of Appeals for the Federal Circuit has opined on this case twice. In 2014, it decided that a software interface was copyrightable. Last year the Federal Circuit unanimously ruled that Google’s use of 37 Java API packages in its Android operating system was not fair as a matter of law. Google is now facing as much as $8.8bn in damages.

In January, Google filed a petition with SCOTUS asking to review the copyright dispute. Specifically, Google has posed two questions: (i) whether copyright protection extends to an API; and (ii) whether Google’s use of Java APIs in the context of creating a new computer program constitute fair use.

Google contends that it has been a “long standing practice” within the software industry to reuse interfaces to access essential prewritten tools for building new computer programs. Google's chief legal officer Kent Walker accused Oracle of "trying to profit by changing the rules of software development after the fact".

The SCOTUS has yet to confirm whether it will hear the case. The Federal Court refused en banc rehearing of the case, so SCOTUS is Google's last chance.

Amicus Briefs all side with Google

In its brief, Microsoft criticised the Federal Court of Appeals for taking an unduly narrow view of fair use in its decision by granting “functional code the same level of copyright protection as creative expression in a novel”. Microsoft argues that the entire computer industry –

“depends on a robust fair use doctrine to ensure that software from different vendors will work well together and that developers can create collaborative innovations in software and hardware”.

Microsoft urges the SCOTUS to grant review because the Federal Circuit’s decision “threatens fair use’s vitality and extinguishes the necessary ’breathing room’ for the ecosystem of innovation it protects”, which will yield profound negative consequences for the ecosystem of programmers and innovation in general.

Mozilla, Mapbox, Medium, Patreon, Etsy and Wikimedia submitted a group brief, whereby they asserted that reuse and reimplementation of functional protocols, such as APIs, were vital in creating “competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement“. These Amici urge SCOTUS to grant Google’s petition for certiorari because Federal Circuit’s rejection of the fair use doctrine undermines –

“valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements. Specifically, by creating irreconcilable conflicts with bedrock software fair use principles that have set the norms of engineering practice for over two decades, the Federal Circuit has opened the door to relitigating many status quo software engineering practices—practices that open source projects and small startups depend on every day to produce new platforms, programs, features, and interfaces.”

Red Hat joined others in raising “grave concerns” about the Federal Circuit decisions. Unsurprisingly, Red Hat argues on behalf of open source software industry, emphasising that it heavily relies on a collaborative development model and “runs a large portion of the modern Internet”. Copyright in software interfaces, according to Red Hat, equals to granting the statutory monopoly of copyright to ‘building blocks’ of a creative activity, which is specifically precluded by Section 102(b) of the Copyright Act, noting that—

“[t]he use of computer program interfaces for compatibility and interoperability purposes is both ubiquitous and essential to the operation of information and communication technologies and infrastructures.”

Similar themes are prevalent in The Developers Alliance and a group of 78 amici curiae computer scientists submissions.

65 IP scholars have raised concerns that Federal Circuit’s copyrightability ruling is in conflict with a legal precedent in the following three aspects: (i) merger analysis; (ii) interpretation of the scope of copyright protection available to computer programs; and (iii) interpretation of the words and short phrases doctrine.

Professors Peter S. Menell and David Nimmer in a separate submission also highlight inconsistency with SCOTUS’s seminal decision in Baker v. Selden, 101 U.S. 99 (1879), and misinterpretation of  Congress’s codification of SCOTUS’s channeling principle and related limiting doctrines. In addition, Menell and Nimmer challenge the Federal Circuit’s appellate authority with regards to non-patent intellectual property law.

What Oracle has to say?

In response to the petition, Oracle's general counsel, Dorian Daley, has published a comment contending that Google’s arguments had already been thoughtfully and thoroughly discredited". Ms Daley went on to say that Google’s "fabricated concern about innovation" conceals their true goal to “copy the original and valuable work of others as a matter of its own convenience and for substantial financial gain".

According to her, the pace of innovation has only increased since the initial decision of the Federal Circuit in 2014, whereby Oracle Java code copied by Google was deemed copyright protected. Hence, “the purported ‘chill on innovation’ is a well known myth” and SCOTUS should deny Google’s request to take the case.

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