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Oracle tells Supremes: Fair use? Pah! There's nothing fair about 'Google's copying'

Should they be allowed to grab our stuff just cos it's 'popular' and it works?

Not to be outdone by Google in ominous warnings over the future of software, Oracle has declared to American Supreme Court justices that no company would make an "enormous investment" like it did in Java SE if rivals get a free pass to copy code simply because it is "popular" and "functional".

The firm filed a brief yesterday (PDF) to fend off Google's appeal in the highest court in the United States. The search giant is trying to overturn a Federal Circuit ruling over Google's use of Java code in the Android mobile operating system that would leave it on the hook for copyright damages estimated at $9bn+.

Oracle held that the class library APIs it has been tussling with Google's Android over since August 2010 are a "literary work", countering Mountain View's assertion last month that the "declarations were highly functional, rather than expressive (PDF)".

Big Red wrote in the document that there had been "creative choices – both [in] writing the declaring code and organizing the programs" that were "critical to Java SE's success", adding that Sun Microsystems and Oracle had collectively invested "hundreds of millions of dollars" attracting developers and developing the platform.

It also shot down Google's merger doctrine argument, which holds that what the code does and the way it was written (the idea and its expression) have merged into one and the same thing, which Big Red acidly characterised as "an invitation" to the court to "rewrite the Copyright Act". As for Google's argument that once you dismiss Java SE's "conceptual" choices, all that remains are "unoriginal" names, Oracle snapped: "That is like saying once you choose a plot, the story writes itself."

In a 70-page broadside, Big Red called Mountain View's policy arguments "legally irrelevant" to fair use, adding there was "no settled practice of pirating valuable software and incorporating it into competing products".

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Countering Google's holding that it used a small portion of the Java code base, Oracle retorted that Google's copying was "substantial" because of its "importance", and that the justices should disregard that Google copied "only a fraction of a large work".

No company will make the enormous investment required to launch a groundbreaking work like Java SE if this Court declares that a competitor may copy it precisely because it has become so popular, or because it is functional — like all computer code.

Even Andy Rubin said we were rivals

Big Red characterised Google's problem – which it noted had been conceded by Android's founder Andy Rubin in earlier testimony – was that Sun's "APIs are copyrighted". It remarked: "Google could have taken the open-source license for free. But Google considered the give-back obligation 'unacceptable'."

The database vendor also held in its brief that Google's use of the code in question was "commercial" – which would weigh against the fair use ruling – and claimed that "Google's concededly 'competing' product harmed Java SE in actual and potential markets", pointing to Oracle CEO Safra Catz's testimony back in 2016 (PDF) about a discount given to Amazon for its Paperwhite e-reader:

Amazon switched from the Java platform to Android, then leveraged its ability to use Android for free to secure a 97.5 per cent price concession from Oracle.

(A San Francisco jury ruled in favour of Mountain View's fair use argument soon after the Oracle's boss's testimony.)

Big Red also added in yesterday's brief that Google could have licensed its code, but chose not to, opining: "Developers offer open-source licenses because it is in their business interest. Market forces likewise foster interoperability. Consumers demand products that work together, so software vendors 'wall off' their products at their peril."

It also said that, seemingly in opposition to its own argument, Google had "admitted that it purposely made Android incompatible with Java".

The case is Google LLC (Petitioner) v Oracle America, Inc and interested readers can follow the action here. ®

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