Google has taken the years-long spat with Oracle over its use of Java code in the Android mobile operating system to the US Supreme Court.
The search engine giant announced yesterday that it had asked the US's highest court to review the copyright dispute, which has gone on for the best part of nine years.
Google is facing as much as $8.8bn in damages in the case after an appeal from Oracle last year resulted in the US Court of Appeals for the Federal Circuit in Washington DC reversing a 2016 ruling.
Oracle filed the case in 2010, after it acquired Sun Microsystems and inherited Java, and thus the rights over its copyright, contesting Google's use of copyrighted Java APIs in its Android mobile operating system.
In 2012, a judge ruled that the software interfaces in the case weren't copyrightable, but this was overturned two years later. Then, in 2016, a jury unanimously ruled that Google's use of copyright materials was fair use – a decision that Oracle successfully appealed and had overturned in 2018.
The Federal court refused to re-hear the case, so the Supreme Court is Google's last chance saloon. If the court doesn't hear the case – or does and finds in favour of Oracle – it is liable for damages that Oracle put at almost $9bn in 2016.
Its petition (PDF) for a judicial review from the Supreme Court – which in 2012 declined to hear the case – said the opinions of the Federal court throws "a devastating one-two punch at the software industry".
The petition for the judicial review calls on the Supreme Court to answer two questions: whether copyright protection extends to a software interface; and whether Google's use of a software interface in the context of creating a new computer program constitutes fair use.
In a blogpost about the appeal – loftily titled "Oracle v Google and the future of software development" – Google's chief legal officer Kent Walker accused Oracle of "trying to profit by changing the rules of software development after the fact".
Walker said that, if the Supremes does not step in, "the industry will be hamstrung by court decisions finding that the use of software interfaces in creating new programs is not allowed under copyright law".
Google built the Android platform "following the computer industry's long-accepted practice of re-using software interfaces" and it received the support of Java's creators at the time, he said.
"Oracle's lawsuit claims the right to control software interfaces – the building blocks of software development – and as a result, the ability to lock in a community of developers who have invested in learning the free and open Java language.
"Unless the Supreme Court corrects these twin reversals, this case will end developers' traditional ability to freely use existing software interfaces to build new generations of computer programs for consumers."
Walker also pointed to amicus briefs filed in support of Google over the years from HP, Red Hat and Yahoo!, as well as academics and IP professionals.
In response to the petition for an appeal, Oracle's general counsel Dorian Daley said that Google was presenting "a rehash of arguments that have already been thoughtfully and thoroughly discredited".
She added that Google had "fabricated concern about innovation" to mask the fact it wants "unfettered ability to copy the original and valuable work of others as a matter of its own convenience and for substantial financial gain".
The impact that Google claims the decision will have on innovation "is a well-known myth", Daley said, adding that since the Java APIs were protected "the sky is not falling on the software industry or technology industry in general".
Oracle also pointed out that the Court of Appeals had twice ruled in its favour, and urged the Supreme Court not to hear the case. ®