Google’s long-awaited decision to petition the Supreme Court for writ of certiorari, i.e. request a review of two previous Federal Circuit rulings against it in a nine-year copyright battle with Oracle, has been met with contempt by the latter’s lawyers.
Oracle’s General Counsel Dorian Daley responded: “Google’s true concern [is] that it be allowed the unfettered ability to copy the original and valuable work of others as a matter of its own convenience and for substantial financial gain.”
Google’s move is its final gambit in an effort to secure a favourable ruling in a case that could cost the company an estimated $8.8 billion in damages if the Supreme Court either declines to hear the case, or hears it but rules against the company.
Google has received written support from Red Hat, HP and Yahoo! among others.
Oracle Copyright Claim: Are Java APIs a “Method of Operation”?
The Oracle copyright claim pivots around whether Java APIs comprise an integral part of the Java intellectual property that Oracle bought in 2009.
Google used these APIs to underpin the then-nascent Android application ecosystem and allow interoperability between Android and its applications.
Google’s lawyers, citing fair use, emphasise that under existing copyright law, protection of creative works does not extend to any “idea, procedure, process, system, method of operation” contained in the work.
The claim has precedent, but has also been overruled twice by the Federal Circuit. Google, in its petition to the Supreme Court, notes that the court had no “specialised expertise”. Google’s Chief Legal Officer Kent Walker said: “Unless the Supreme Court steps in here, the industry will be hamstrung by court decisions finding that the use of software interfaces in creating new programs is not allowed under copyright law.”
Oracle described the “chill on innovation” claim as a “myth”.
Oracle’s Dorian Daley said: “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. Indeed, the sky is not falling on the software industry or technology industry in general. [We will ensure that the] well established principles of copyright law are not subverted by anyone trying to cut corners.”
Red Hat and HP are among those that disagree. In a filing, they argue: “The use of computer program interfaces of others for compatibility and interoperability purposes is both ubiquitous and essential to the operation of information and communication technologies and infrastructures. This fact has become even more so in today’s ever more highly networked world.”
“The freedom to utilize, implement, re-implement, and extend existing interfaces, without the need to negotiate a copyright license, has been the key to competition and progress in the computer, information technology, communication technology, and networking fields since their beginning.”
Is Android About to Die?
A Google loss would not kill Android. The company switched to a fully open source version of Java with the Nougat release of Android in 2016.
Google’s lawyers however argue that, if allowed to stand, the Federal Circuit’s approach will “upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs” undermining both competition and innovation
But Google is working overtime on its likely Android replacement, the Operating System Fuchsia, which appears to be inching closer to release.
The company recently hired 14-year Apple engineer Bill Stevenson to work on the upcoming Fuchsia OS, and help bring it to market.
In a LinkedIn post shared last week, Stevenson said he was “joining Google to help bring a new operating system called Fuchsia to market.”
As software engineer Ashley Narayanen puts it to Computer Business Review: “It’s becoming increasingly obvious that Android is a dead-end for Google and they’re quietly bringing out the big guns for Fuchsia.The fragmentation and security problems are just too much, plus its performance based on the current architecture of a VM-atop-Linux is never going to give them the edge they need against iOS which outperforms it on lower-spec hardware.”
He added: “I absolutely can’t wait for Fuchsia. It already smells vastly superior to Android, which is something of a bodge from the ground up.It’s going to incorporate all of the lessons learned from Android, which frankly, they have messed up.”
“Fuchsia is microkernal-based as well, so it’s going to be nicely re-configurable for a wider range of hardware and applications. The UI already looks slick so I’m exciting to see it making waves in automotive and IoT spaces.
Google, meanwhile, says it hopes that the Supreme Court will give its copyright defence “the serious and careful consideration it deserves.”