With America's Supreme Court expected to hear arguments in Google v. Oracle over the copyrightability of software application programming interfaces come March, the search biz's ideological allies have rushed to support the company with a flurry of filings.
A week after Google handed its petitioner's brief to the court on January 6, Monday this week saw 21 friend-of-the-court (amicus curiae) filings.
Most of the submitted arguments support Google's position. They include briefs from IBM, Microsoft, Mozilla, trade groups, advocacy organizations, policy wonks, and academics.
IBM's brief is emphatic in its first sentence: "Computer interfaces are not copyrightable." Microsoft meanwhile argues [PDF] that the Supreme Court should restore the jury's overturned finding that Google's use of copyrighted Java APIs qualifies as fair use. Other amicus briefs point out that a decision in favor of Oracle could have collateral damage on how artists incorporate content references to other works and even on vehicle repair.
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In 2010, Oracle sued Google claiming the search biz's Android implementation infringed Java patents and copyrights. Two years later, after the patent claims were dropped and the jury in the case could not agree on whether Google's use of copyrighted Java's APIs qualified for a fair-use defense, US District Court Judge William Alsup ruled that Oracle's Java APIs were not copyrightable.
Oracle appealed the decision. Though the Court of Justice of the European Union (CJEU) in a different case around the same time had come to a similar conclusion – that the functional aspects of APIs could not be copyrighted – the federal circuit appeals court reversed Judge Alsup's decision in 2014. The appellate court found that software interfaces could be copyrighted but did not decide whether Google's use of Java APIs in Android qualified as fair use.
Google appealed to the Supreme Court but the judges initially declined to hear the case. The case returned to the district court, and in 2016 a jury found that Google's sampling of Java was fair use. Oracle again appealed and in 2018 the federal circuit tossed the jury's verdict and declared Google's use was not fair use. Google asked for the full appeals court to hear the case but was denied, and then in 2019 asked the Supreme Court to weigh in.
Later that year, the Supreme Court agreed to consider the case. Its decision is certain to have significant consequences for software development whatever gets decided.
"An Oracle win would upend the way the technology industry has always approached the important issue of software interfaces," said Kent Walker, SVP of global affairs and chief legal officer at Google," in a blog post last week.
"It would for the first time grant copyright owners a monopoly power to stymie the creation of new implementations and applications. And it would make it harder and costlier for developers and startups to create more products for people to use."
Oracle in January last year urged the Supreme Court not to take up the case. "Since the initial decision of the Federal Circuit (and agreement of the Solicitor General's Office) that the Oracle Java code copied by Google was copyright protected, the pace of innovation has only accelerated, spurring job creation and opportunity," said Dorian Daley, Oracle EVP and general counsel, at the time. "Indeed, the sky is not falling on the software industry or technology industry in general."
Oracle has maintained that Google is just trying to get out of paying for infringement.
In an article published two years ago in the Harvard Journal of Law and Technology, Georgetown University law professor Jonathan Band observes that Federal Circuit's decision represents "an aberration in a global consensus favoring copyright principles that support software interoperability."
So a Supreme Court decision in Google's favor would align US law with legal principles observed in Europe, where software interoperability is concerned.
IBM's brief has drawn praise from legal academics for pointing to an obscure precedent from the nineteenth century, Perris v. Hexamer (1879), to support Google's position.
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As described in a 2018 paper by George Washington University law professor Zvi Rosen, William Perris in 1874 filed a copyright infringement claim against Ernest Hexamer for producing a map that incorporated the legend (the maps visual key), symbols, and colors found on a map made by Perris's similarly named father.
Hearing the case in 1878, the Supreme Court affirmed there was no copyright infringement because the Perris and Hexamer maps detailed different places and they were not substantially similar. The duplication of map symbols was insufficient to qualify as copyright infringement.
Rosen argues the Google v. Oracle is analogous to Perris v. Hexamer because "in both cases there is a class of defined functions (a table with definitions of map symbols in Perris), which are then used as part of a copyrighted work where no infringement is alleged (the programming language in Oracle, and the city maps in Perris). However, despite the millions upon millions of legal fees and costs spent in this case, there is no indication that anyone has cited Perris."
IBM's legal team has now done so, and perhaps it will please the Supreme Court. A decision in the case is expected in June. ®