The US solicitor general Noel Francisco on Wednesday filed a friend-of-the-court brief in support of Oracle in its Java API copyright lawsuit against Google, scheduled to be argued before the US Supreme Court next month.
Uncle Sam's brief [PDF] was submitted to the court on the same day Oracle supremo Larry Ellison held a re-election fundraiser for President Donald Trump at his estate in Rancho Mirage in California.
The Register has seen no evidence of any quid pro quo in the coincidence of these events. For what it's worth, Donald Verrilli, solicitor general under President Obama, took a similar position in 2015, to the delight of Oracle. And, don't forget, Ellison, like all tech zillionaires, likes to raise money for politicians, left and right: it's good for business to keep lawmakers and presidents on-side.
The latest Justice Department brief runs 40 pages, 12 more than the legal eagles' similar filing [PDF] last September, in which the government urged the court not to accept Google's petition. It argues that the web giant's use of Java software interfaces is not permissible as fair use.
"[Google] suggests...that it was entitled to copy 11,330 lines of [Oracle's] declaring code because that code standing alone is not commercially valuable," the brief states. "If that approach were sound, a developer could steal half of another developer's program and finish it herself, so long as the stolen half did not function on its own."
The case dates back to 2010 when Oracle sued Google for patent and copyright infringement over its use of Java application programming interfaces (APIs) in its mobile Android operating system. The patent claims were eventually rejected, but the copyright claim proceeded to trial and in 2012, Judge William Alsup ruled that APIs are not subject to copyright.
Oracle appealed and in 2014, the US Court of Appeals for the Federal Circuit reversed Alsup's finding about APIs but left open the possibility that Google's infringement may be allowable under the fair use doctrine. Google's effort in 2015 to have the Supreme Court take up the API question was denied.
The case then went to back to Northern California District Court, where a jury in 2016 found Google's Java infringement to be fair use. Oracle then appealed and in 2018 the Federal Circuit found in favor of Oracle. The following year, Google again appealed to the Supreme Court and this time its petition was accepted. Oral arguments are now scheduled for March 24 with a decision expected in June.
The Supreme Court will decide whether copyright protection extends to a software interface and whether Google's use of Java APIs to create a new program, Android, constitutes fair use.
If Oracle prevails, the decision is expected to have a significant impact on the future of software development by forcing developers to obtain licenses when working with copyrighted APIs and by opening the door to potential legal claims in cases where such APIs have been used without permission.
In a blog post on Thursday, Oracle EVP Ken Glueck, voiced appreciation for the support the company has received for its effort to hold Google accountable. "It's really hard to overstate how strong the Solicitor General's brief is on Oracle's behalf," he said.
Glueck also claimed that Google's chief legal officer, Kent Walker, has tried to prevent other organizations from filing briefs in support of Oracle.
"Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle's behalf to persuade them to stay silent.," he said. "We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts."
The Register asked Oracle to provide evidence of its claim and to name companies allegedly approached by Walker. Oracle declined to do so.
We also asked Google to comment on Oracle's assertion about Walker. The company responded but did not actually address whether Walker did what Oracle contends.
"A remarkable range of consumers, developers, computer scientists, and businesses agree that open software interfaces promote innovation and that no single company should be able to monopolize creativity by blocking software tools from working together," said Google spokesperson Jose Castaneda, in a statement emailed to The Register.
"Openness and interoperability have helped developers create a variety of new products that consumers use to communicate, work, and play across different platforms." ®
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