Experts Read Mixed SCOTUS Signals on Google v. Oracle

The Supreme Court didn’t offer a clear picture at oral argument for how it might rule in Oracle’s lawsuit against Google (see 2010070065), but remarks from justices were telling, observers told us. Potential outcomes include the high court remanding the case or a 4-4 split, which would be a victory for Oracle, they said. Stakeholders disagreed about what the justices’ comments meant for each side.

Based on the justices’ questions, Oracle should win on the copyrightability of application programming interfaces (APIs), said Dorsey & Whitney’s Michael Keyes. Some justices seemed skeptical of Google’s position that the APIs in question differ from other pieces of copyrightable software. Justice Samuel Alito expressed concerns that adopting Google’s position might mean the end of protections for certain computer programming codes, said Keyes. Justice Neil Gorsuch suggested Google failed to acknowledge Congress “clearly wanted protection for computer programming,” despite Copyright Act Section 102 not protecting processes and systems, said Keyes. He noted it’s “treacherous to forecast” what the court will decide based on questioning, but a 4-4 split is possible.

“Developers want to create applications that work across platforms, without fearing that companies will misuse copyright law to block interoperability,” a Google spokesperson emailed, saying the company spoke for software developers, computer scientists, businesses and consumers who support software innovation.

Oracle has a “strong case” against Google for copyright infringement, said Free State Foundation Policy Studies Director Seth Cooper: “For commercial purposes, Google copied over 11,000 lines of code that apparently were unnecessary for it to use the Java programming language, and it also copied names and specifications for arranging that code.” Straightforward application of copyright law should “give rise to liability for infringement,” he emailed. “And I don’t see any good reason in the statute or case law doctrines to exclude Oracle's software code from copyright protections.”

Several justices cited an amicus brief from 83 computer scientists claiming the “sky would fall” if the court rules against Google, noted Ballard Spahr’s Lawrence Nodine. But justices’ interpretations and questions on that argument were “hard to read,” he said. He noted Justice Brett Kavanaugh nearly answered the question, framing it in reference to the Federal Circuit’s 2014 decision on merger aspects, finding the Oracle declarations are protectable. “I'm not aware that the sky has fallen in the last five or six years with that ruling on the books,” Kavanaugh told Google attorney Thomas Goldstein.

Justice Sonia Sotomayor attributed the same argument to Oracle, saying Oracle attorney Joshua Rosenkranz “had the sky falling if we ruled in favor” of Google. “The problem with that argument,” Sotomayor said, is that since 1992, cases before the 1st, 2nd, 9th and 11th Circuits have established a “basic principle” up until the Federal Circuit’s decision. Jonathan Band, a copyright attorney who filed an amicus brief on behalf of the Internet Association and the Computer and Communications Industry Association, said Sotomayor “most certainly” looked to be on Google’s side.

Band noted Oracle compared programming code to literary works in terms of copyrightability, which is similar to the arguments the Copyright Alliance made warning the court that a Google victory would disrupt music and film copyright. “The justices just weren’t buying any of that,” said Band. “They understand that this case isn't even about computer code generally. It’s specifically about these declarations, which are necessary for interoperability.”

Hopefully the high court will see that a ruling in favor of Oracle “would have serious implications for developers and consumers,” emailed Mozilla Senior Intellectual Property and Product Counsel Daniel Nazar. “It would make it harder for small companies to create software that is interoperable with existing products, which will deter a wide range of follow-on innovation.” Copyright law shouldn’t be used to “entrench existing players, he said.

Overall, it wasn’t easy to guess where the justices stand, said American Enterprise Institute's Michael Rosen. Alito and Gorsuch seemed to ask leading questions of DOJ, which sided with Oracle. “There's this argument that the sky is going to fall if we do not rule for Google, so unless you have -- do you have anything you want to add on that -- on that point?” Alito asked Deputy Solicitor General Malcolm Stewart. Rosen said this questioning could be read as skepticism toward Oracle and DOJ’s argument. With an eight-member court, there’s at least a “decent possibility” of a 4-4 split, said Rosen.

The U.S. Court of Appeals for the Federal Circuit ruled in Oracle’s favor in 2018, finding Google’s “use of the Java API packages was not fair as a matter of law.” Google is appealing that decision. A 4-4 split would allow the 2018 ruling to stand. Oracle didn’t comment.