By: Bill Donahue
Major technology companies, software developers, legal scholars and others have filed a flood of amicus briefs urging the U.S. Supreme Court to take up Google‘s appeal in the company’s yearslong copyright battle with Oracle over use of copyrighted code in Android smartphones.
In a dozen briefs filed Friday and Monday, several outside groups and experts pressed the justices to grant certiorari in the closely watched case in which Oracle sued Google for using Java software code when it built the Android operating system.
The briefs came in support of Google, which appealed to the high court last month after a lower court twice sided with Oracle. If the high court refuses to hear the case, Google could be on the hook for a potential 10-figure damages total.
According to a brief filed Monday by the Computer and Communications Industry Association — a lobbying group that represents Amazon, Microsoft, T-Mobile and Google itself — the rulings for Oracle are out of sync with how the rest of the world treats software copyrights.
“Taken together, these two decisions represent a major setback to competition and innovation in the software industry,” the group wrote. “These decisions run directly contrary to legal norms promoting competition in the software industry that have been adopted by more than 40 of our trading partners.”
The non-profit Developers Alliance, meanwhile, told the justices that rulings in favor of Oracle had left developers “confused about whether and where established practices constitute copyright infringement.”
“Specifically, developers now question their ability to freely create interoperable software across projects and platforms, as has been common practice,” wrote the Alliance, an advocacy group that represents 75,000 software developers. “The inevitable result of this uncertainty will be reduced innovation, higher industry costs, and increased litigation.”
In another brief, a group of eight law professors from Harvard University, New York Universityand other schools told the justices the case would provide an “ideal vehicle” for the court’s first ruling in more than 25 years on copyright’s fair use doctrine.
“The lower courts have reached a doctrinal fork, and this court needs to resolve it,” the group wrote of fair use case law.
An additional 65 intellectual property professors wrote a separate brief that said the lower court rulings had “deepened splits in circuit court interpretations of several major copyright doctrines as applied to computer programs.”
David Nimmer, a professor at UCLA School of Law and the author of an influential treatise on copyright law, filed his own brief with another scholar that said the case could “upend nearly three decades of sound, well-settled, and critically important decisions” on software copyrights.
Oracle sued Google in 2010, claiming it lifted key aspects from so-called application programming interfaces, or APIs — chunks of prewritten computing instructions Oracle created to help programmers more easily write in the Java programming language — and used them in Android, the top smartphone operating system in the world.
Google originally argued that the pieces it used from the API were not copyrightable, but the Federal Circuit rejected that in 2014. Google then argued that its use of the code was protected by copyright’s fair use doctrine, but the appeals court again rejected that last year.
Last month, Google took both of those rulings to the Supreme Court, warning the justices that the decisions would drastically alter how copyright treats the “essential building blocks of software development.”
“Google has never disputed that some forms of computer code are entitled to copyright protection,” the company wrote. “But the Federal Circuit’s widely criticized opinions … go much further, throwing a devastating one-two punch at the software industry.”
A response brief from Oracle is due on March 27. That brief will likely be followed by amicus briefs that support Oracle.
Separate amicus briefs were also filed on Friday and Monday by the Electronic Frontier Foundation; Public Knowledge; a group of 78 computer scientists; Red Hat Inc., an open-source software firm; a group of “software innovators, startups, and investors”; Python Software Foundation; and the American Antitrust Institute.
CCIA is represented in-house by Matt Schruers and Ali Sternburg, and by Jonathan Band of Jonathan Band PLLC.
The Developers Alliance is represented in-house by Bruce Gustafson, and by James H. Hulme and Nadia A. Patel of Arent Fox LLP.
The eight law professors are represented by Christopher T. Bavitz of Harvard Law School.
The 65 IP professors are represented by Pamela Samuelson and Catherine Crump of the University of California, Berkeley School of Law.
Nimmer and co-author Peter S. Menell are representing themselves.
Google is represented by Thomas C. Goldstein of Goldstein & Russell PC, Kannon K. Shanmugam of Paul Weiss Rifkind Wharton & Garrison LLP, Charles L. McCloud and Meng Jia Yang of Williams & Connolly LLP, Robert A. Van Nest, Christa M. Anderson, Eugene M. Paige and Reid P. Mullen of Keker Van Nest & Peters LLP, Bruce W. Baber and Marisa C. Maleck of King & Spalding LLP, and Michael S. Kwun of Kwun Bhansali Lazarus LLP.
Oracle is represented in-house by Dorian Daley, Deborah K. Miller, Matthew M. Sarboraria and Ruchika Agrawal, and by Joshua Rosenkranz, Annette L. Hurst, Peter A. Bicks, Lisa T. Simpson, Andrew D. Silverman, Matthew L. Bush, Mark S. Davies, Kelsi Brown Corkran, Melanie L. Bostwick and Jeremy Peterman of Orrick Herrington & Sutcliffe LLP, and Dale M. Cendali and Joshua L. Simmons of Kirkland & Ellis LLP.