That huge lawsuit that Oracle filed against Google a few years ago is still going strong, and while Google had initially (mostly) won, the tide is now flowing in Oracle’s favour.
And the whole computer industry is nervous about it.
For instance, Marc Andreessen, venture capitalist at Andreessen Horowitz, tweeted his displeasure: “Obama administration to programmers: Drop dead!”
At issue is whether Google illegally copied part of the Android mobile operating system from a technology called Java, which is now owned by Oracle. Some computer experts argue, however, that the part Google used should be broadly shared to make it easier to build new software programs.
The latest thing in Oracle’s favour: The Department of Justice has filed an amicus brief siding with Oracle and recommending that the Supreme Court not look at the case (at least not yet). The Supreme Court had asked the Department of Justice to weigh in.
Oracle had pulled a shocking win in an appeals court about a year ago. At that time, Google called the ruling “a damaging precedent for computer science.”
So if the Supreme Court doesn’t take the case, Oracle’s appeals win could stand for good.
The importance of APIs
At stake is how much ownership a company can claim over the portion of computer software known as an application programming interface (API). That’s the code that allows computer programs to talk to one another.
Some experts in the computer industry say that by allowing developers to freely copy that part, apps can more easily work with one another. They warn that by making it subject to copyright and royalties, they make it harder and more expensive for app developers to write great apps that play nicely with others.
Oracle sued Google, accusing it of copying the APIs of Java and putting them into Android. Java is a very popular computer-programing language, which Oracle acquired when it bought Sun Microsystems.
Google used Java’s APIs to make it easier for millions of Java developers to bring their apps to Android, as they were already trained on Java’s APIs.
Oracle sued Google, contending that the APIs were copyrighted and initially asking for $US6 billion in damages, but the courts didn’t allow that huge amount to stick.
In the end of that first trial, the judge ruled that APIs were not subject to copyright laws.
But Oracle appealed and won, with an appellate court overturning the earlier verdict and saying APIs are subject to copyright.
The next step was for the lower courts to hear Google’s next defence: that its use of the Java APIs falls under the “fair use” doctrine. That doctrine allows limited portions of copyrighted material to be used by others.
But before that could be ruled on, Google asked the Supreme Court to take on the case.
In a brief filed Tuesday, US Solicitor General Donald Verrilli sided against Google, disagreeing with Google’s claim that API’s were not entitled to copyright protection. Verrilli suggested the Supreme Court skip taking on the case, at least at this time.
But he didn’t completely side with Oracle. He suggested that if the Supreme Court wanted to take on the case, it should do so after the lower courts ruled on Google’s argument of fair use.
Verrilli’s involvement in this case was reportedly a political landmine inside the Justice Department, as the Obama administration was torn between which of the two hugely influential tech companies to support.
This opinion doesn’t mean the Supreme Court won’t take the case, but it’s not a good sign for Google.
If Google loses
If Google completely loses, it’s not clear what kind of damages it will owe Oracle. Oracle was initially asking for royalties on every Android device sold, to the tune of billions of dollars.
More important, if Oracle wins, the entire software industry will be nervous that 1) companies will be subject to copyright-infringement lawsuits if their APIs also mimic popular computer programs (particularly Java) and 2) companies will have to invest resources to create their own APIs from scratch instead of being able to freely rely on the APIs of other more established programming languages.
Google said it was “disappointed” with this turn of events. A representative said:
While we’re disappointed, we look forward to supporting the clear language of the law and defending the concepts of interoperability that have traditionally contributed to innovation in the software industry.
Oracle, naturally, was “pleased”:
Oracle is pleased that the U.S. Solicitor General has recommended that the Supreme Court deny Google’s cert petition. In 2014 the Court of Appeals for the Federal Circuit unanimously rejected Google’s arguments that software is entitled to less copyright protection than other original, creative works. The Solicitor General’s brief agrees with the Federal Circuit’s decision and affirms the importance of copyright protection as an incentive for software innovation.