Solicitor General to Advise Supremes in Google-Oracle Case

WASHINGTON (CN) – The U.S. Supreme Court invited the solicitor general Monday to weigh in on whether Oracle is entitled to a damages trial in its $9 billion copyright dispute with Google over the Android smartphone platform.

The development follows a stunning reversal from the Federal Circuit a month ago. Concluding that Google violated Oracle’s copyrights by using Oracle-owned Java application programming interface, or API, packages in Android, a three-judge panel ruled that “Google’s copying and use of this particular code was not fair.”

Oracle sued Google in 2010, after it acquired the rights to Java when it bought Sun Microsystems. Two years later, a San Francisco jury agreed with Oracle that Google infringed its copyrights in the Java Standard Edition platform but deadlocked on whether Google’s copying was fair use.

U.S. District Judge William Alsup in San Francisco subsequently found for Google, concluding that the API packages weren’t copyrightable.

The Federal Circuit partly reversed on appeal, holding that the APIs are entitled to copyright protection. The court remanded with instructions to hold further proceedings on Google’s fair-use defense.

After the Supreme Court declined to intervene at that stage, Google prevailed on its fair-use defense at a second jury trial in 2016, dodging Oracle’s claims for $8.8 billion in damages.

On appeal again, Oracle argued each of four statutory factors weighed against a finding of fair use, including that the purpose and character of Google’s use was purely commercial.

Google countered that because it gives Android away for free under an open-source license, the jury could have concluded that Android has non-commercial purposes – an argument the Federal Circuit rejected in March.

“The fact that Android is free of charge does not make Google’s use of the Java API packages noncommercial,” the panel wrote, remanding the case to a federal judge in San Francisco.

Per its custom the Supreme Court did not issue any statement in requesting the views Monday of the U.S. solicitor general. The Supreme Court did not otherwise grant certiorari to any case in its Monday order list.

“The outcome of this case will have a significant impact on the future of American innovation,” a Google spokesman said. “We are asking the Supreme Court to hold that copyright law supports the kind of interoperability that has been critical to the progress of software development in the United States.”

Oracle spokeswoman Deborah Hellinger declined to comment.

Joshua Rosenkranz of Orrick, Herrington & Sutcliffe in New York represents Oracle, and Thomas Goldstein of Goldstein & Russell in Bethesda, Maryland, represents Google.

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