WASHINGTON (CN) — The Supreme Court laid bare the so-called copyright lawsuit of the decade on Wednesday: a clash between Google and Oracle with the potential to rewrite the rules of computer coding.
Dialing into the 96-minute remote hearing without Justice Ruth Bader Ginsburg, who died on Sept. 18, the eight justices used a litany of hypotheticals to make sense of the deeply technical concepts, alternately comparing the fought-over lines of code to football playbooks, restaurant menus and grocery store produce.
The case that has programmers holding their breath hinges on whether the fair-use doctrine applies to copying the APIs — short for application programming interfaces — that developers use to ensure different companies’ products can function together without error, for example using apps like Facebook on a smartphone.
For years, software programmers have copied lines of code developed by others. At issue in this case, however, is whether Google needed a license to use prewritten lines of code while developing the Android platform.
Google’s engineers built Android using the programming language Java, released on an open-source basis in the 1990s.
Oracle bought the company that developed Java in 2010, then sued Google for copying over 11,000 lines of the programming language.
Across the bench, the justices on Wednesday parsed warnings from tech companies and computer scientists in dozens of amicus briefs that a ruling against Google will devastate the software industry.
Yet as Justice Brett Kavanaugh noted, it has been six years since the Federal Circuit first sided with Oracle, and there is no sign that the “sky had fallen” on coders.
The Justice Department has urged the high court to let Oracle’s win stand. Explaining the government’s stance Wednesday, Deputy U.S. Solicitor General Malcolm Stewart argued that ruling for Oracle would not mean the downfall of the software industry, whereas failing to do so would penalize the company for marketplace success.
Oracle is demanding $9 billion in damages, calling the copyright infringement clear cut.
Google attorney Thomas C. Goldstein, with Goldstein and Russell, argued Wednesday that Oracle was invoking patent, not copyright, protection.
With only one way to write the declaring code, Goldstein argued that Oracle was asking the high court to let it monopolize the functions made possible through its APIs, a right only made possible through a patent.
“Cracking the safe may be the only way to get the money that you want. But that doesn’t mean that you can do it,” Chief Justice John Roberts said in response to the argument.
Still Goldstein held to his defense that Oracle wanted to “lock the developers” into using only Java.
Drawing on Congress extending copyright protection for literary authorship to include computer coding, Goldstein said Oracle cannot be given a patent right for Java as J.K. Rowling could for her Harry Potter novels.
Even the former CEO of Sun Microsystems, the company that developed Java, testified to a jury that “‘a practice of duplicating declarations existed and that the competition was on’ the implementing code, which Google did not copy,” the attorney further argued.
In a succession of rulings that created uncertainty in the software community, a federal judge initially found there was no copyright infringement on Google’s part.
But the Federal Circuit reversed the decision in 2014 and ruled the APIs are protected under the Copyright Act of 1976, sending the case back to a federal jury.
When the jurors this time were swayed by Google’s fair-use argument, the circuit once more overturned. Google appealed to the Supreme Court in 2018, arguing the Federal Circuit’s decision runs counter to how courts have traditionally ruled on copyright protection for code. The justices agreed to hear the case and originally set oral arguments for March, before postponing to October due to the Covid-19 pandemic.
Oracle’s attorney said Wednesday that Google has little case law to support its claim, and that a huge market for declaring codes would be “gone with the stroke of a pen” if the Supreme Court backs Google’s copyright claims.
“Google conceded Oracle’s code is original. That’s the end of the question,” E. Joshua Rosenkranz, with Orrick, Herrington and Sutcliffe, told the Supreme Court.
In considering the fair-use arguments, Rosenkranz urged the justices to think on what incentives to future innovation their ruling will create.
The code that Oracle has accused Google of stealing would fill around 600 pages, the attorney noted.
“It is extraordinarily intricate in a way that does deserve copyright protection,” Rosenkranz said.
But Justice Sonia Sotomayor pushed back on Oracle’s arguments: “Everybody knows that APIs, declaring codes, are not copyrightable. Implementing codes are.”
But Rosenkranz told the justice she will not find a single case that draws a distinction between declaring codes and implementing codes.
Along with Justice Neil Gorsuch, Sotomayor also pressed Google on why it copied Java code when competitors like Apple and Microsoft did not when developing their smartphones.
The big-name tech competitors may not have copied the code Oracle acquired in buying out Java’s developer, said Goldstein, Google’s lawyer, but Apple and Microsoft do copy other declaring codes.
Java’s open-source availability has unleashed millions of creative computer programs used by billions of people, the attorney said, urging the high court not to limit efficiency in software development.