Supreme Court puzzles over the nature of software in landmark Google v. Oracle case

For an hour and a half, the justices asked why Google had to rely on code written by others in order to design its Android operating system, and why it believed the copying was permitted. Perhaps Google’s copying is no different than a restaurant owner copying the basic structure of another restaurant’s menu, Chief Justice John Roberts suggested, in that most menus list appetizers before entrees, and entrees before dessert.

Only Justice Stephen Breyer appeared to express a strong preference for Google’s position, arguing forcefully that for Oracle to be allowed to copyright software interfaces would be like allowing the inventor of the QWERTY keyboard to gain intellectual property rights over all computers.

“Very bad consequences will flow if you don’t see that distinction,” he said.

“Everyone was at sea and just waiting for one good analogy to latch onto, which apparently was QWERTY,” tweeted Charles Duan, a senior fellow at the R Street Institute, which had filed a brief in support of Google.

Roberts suggested that for Oracle’s code to become so important that others would seek to copy it implies that the company should be rewarded, not hurt through copyright infringement.

“The fact that programmers really liked it and that’s what everyone used, it seems a bit much to penalize them for that,” he said.

Google argued that this form of unlicensed copying is completely standard in software, saves developers time so that they can create new products, and lowers barriers to innovation.

Oracle’s attorney charged that Google’s copying undermined Sun’s investments in developing the original code, and that a decision by the Court in Google’s favor would ruin the software industry by making it so that developers could not be rewarded for their work.

“The Copyright Act does not give Google a pass just because it would be expensive to recreate our expression,” said Josh Rosenkranz, Oracle’s attorney.

Google has said the exact opposite: That a finding in Oracle’s favor would destroy the software industry by erecting enormous copyright hurdles for all developers and forcing them either to reinvent the wheel every time they wanted to instruct a computer to do something, or to pay licensing fees to the most dominant software companies for the right to carry out simple, mundane tasks.

But Justice Brett Kavanaugh said that, in the time since the appellate court, the Federal Circuit, ruled for Oracle in 2014, Google’s nightmare scenario has not come to pass.

“I’m not aware that the sky has fallen in the last five or six years with that ruling on the books,” Kavanaugh said.

Justices Sonia Sotomayor and Elena Kagan appeared more sympathetic to Google, with Kagan citing several methods of organizing and presenting information that she argued were similar but not copyrightable — including the periodic table of the elements and systems to classify animal species.

Sotomayor seemed open to Google’s claim that by adapting Oracle’s code to serve a different purpose — establishing a new mobile operating system — Google qualified for fair use protections. (The fair use doctrine holds that it is legal to re-use snippets of copyrighted works without permission, but only under a series of conditions.)

“Industries have built up around applications that know they can copy only what’s necessary to run on the application, but they have to change everything else,” she told Oracle. “That’s what Google did here.”

Meanwhile, Justices Neil Gorsuch and Samuel Alito spent much of their questioning focused on whether it was appropriate for the Federal Circuit to overrule a prior jury decision in favor of Google — a procedural argument that could nevertheless play a significant role in the outcome.

“Were the Court to reverse on this issue, the fundamental issues of the copyrightability of computer interfaces and fair use as applies to those interfaces would remain unresolved,” said Bill Frankel, an expert in copyright law at the firm Brinks, Gilson & Lione.