8 October 2020CopyrightRory O'Neill

Google struggles to convince SCOTUS in Oracle dispute

Google is facing an uphill battle in its software copyright dispute against Oracle at the US Supreme Court, lawyers have told WIPR.

The country’s top court heard oral arguments yesterday, August 7, in a case over whether Google is allowed to copy code essential to the functioning of the Android operating system.

As the day went on, each justice reached for different metaphors to try and get to the heart of why Google believed it is entitled to use Oracle’s code that allows different apps to operate together on the Android platform.

Google’s Android mobile operating system uses a part of Oracle’s Java programming code to allow third-party developers’ apps to work.

This was essential, Google argues, to avoid the pitfalls of early smartphone operating systems that did not have access to a wide range of publicly available third-party apps.

And according to Google, Oracle’s Java code is the only way of achieving interoperability between apps, meaning copyright protection does not apply.

Chief Justice John Roberts questioned why this meant Google was entitled to use Oracle’s original work, remarking: “Cracking the safe may be the only way to get the money that you want, but that doesn't mean you can do it.”

Justice Clarence Thomas, meanwhile, likened Google’s use of the code to a football team buying a rival’s players and expecting them to “turn over the playbook” in order to get the best out of them.

"Several of the justices’ questions seemed skeptical of Google’s position and troubled by Google’s use of Oracle’s software code,” said J Michael Keyes, partner at Dorsey & Whitney.

Justice Alito was worried that if the Court adopted Google’s position it would effectively end copyright protection for software, while Justices Gorsuch and Kagan seemed troubled that other tech giants like Apple and Microsoft have created successful mobile platforms without copying Java,” Keyes added.

Bill Frankel, shareholder at Brinks Gilson & Lione and chair of the firm’s copyright group, said the court should rule in favour of Oracle in the interests of protecting investment in software.

“At the end of the day, Oracle’s code was original, creative and properly the subject of copyright. The questions to be resolved are what the scope of that copyright should be and how the fair use factors should properly be weighed in the context of software copyrights,” Frankel said.

The Supreme Court will now weigh up how to rule in the case.

Google was represented in court by Thomas Goldstein, partner at Goldsten & Russell, while Oracle was represented by Joshua Rosenkranz, partner at Orrick.

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