Oracle tells Supremes: Fair use? Pah! There's nothing fair about 'Google's copying'

Not to be outdone by Google in ominous warnings over the future of software , Oracle has declared to American Supreme Court justices that no company would make an "enormous investment" like it did in Java SE if rivals get a free pass to copy code simply because it is "popular" and "functional".

The firm filed a brief yesterday ( PDF ) to fend off Google's appeal in the highest court in the United States. The search giant is trying to overturn a Federal Circuit ruling over Google's use of Java code in the Android mobile operating system that would leave it on the hook for copyright damages estimated at $9bn+ .

Oracle held that the class library APIs it has been tussling with Google's Android oversince August 2010 are a "literary work", countering Mountain View's assertion last month that the "declarations were highly functional, rather than expressive ( PDF )".

Big Red wrote in the document that there had been "creative choices – both [in] writing the declaring code and organizing the programs" that were "critical to Java SE's success", adding that Sun Microsystems and Oracle had collectively invested "hundreds of millions of dollars" attracting developers and developing the platform.

I just got here – what's it about?

Cases and appeals about the issue have now rolled on for nearly a full decade, first kicking off inAugust 2010 over Google's unlicensed use of Java APIs in the Android phone system. Google bought Android, a Linux mobile OS startup that used Java's class library APIs, in 2005 for a mere $50m, and launched the first phone (playfully described on these pages as the Satan Phone) to use the mobile OS in 2008 .

Back in '10, Oracle's original filing – shot off just a year after it acquired ownership of Java when it bought Sun Microsystems for $7.4bn – included a claim for patent infringement, which failed , but the copyright claim was upheld in 2012. Google, which claims its use of the software was covered by the American copyright doctrine of fair use (Big Red contests this), won its case twice in San Francisco federal court. The first time, in2012, US District Judge William Alsup ruled that APIs, in and of themselves, cannot be copyrighted, before that decision was reversed in the federal appeals court , which found Big Red's Java code was covered by copyright. Emails emanating from Android daddy Andy Rubin himself – shown in court at the time – stated that while working on Android he'd believed that key Java APIs were copyrighted.

Then in 2016, ajury ruled Google's use of copyright materials was fair use – a decision that Big Red duly appealed against multiple times before finally having itoverturned in 2018.

Google tried to appeal against this decision, but in August, 2018, the federal court refused to re-hear the case , leading Google to make this last-ditch appeal to the top court in the US, the Supreme Court.

If the court rules in favour of Oracle, the Chocolate Factory will have to cough for copyright damages that Oracle estimatedat $9.3bn in 2016, nearly $2bn more than Oracle paid for Sun Microsystems back in 2009. Google spent a fraction of that on Android, then a two-year-old startup founded by Andy Rubin and others, 15 years ago.

It also shot down Google's merger doctrine argument , which holds that what the code does and the way it was written (the idea and its expression) have merged into one and the same thing, which Big Red acidly characterised as "an invitation" to the court to "rewrite the Copyright Act". As for Google's argument that once you dismiss Java SE's "conceptual" choices, all that remains are "unoriginal" names, Oracle snapped: "That is like saying once you choose a plot, the story writes itself."

In a 70-page broadside, Big Red called Mountain View's policy arguments "legally irrelevant" to fair use, adding there was "no settled practice of pirating valuable software and incorporating it into competing products".

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Countering Google's holding that it used a small portion of the Java code base, Oracle retorted that Google's copying was "substantial" because of its "importance", and that the justices should disregard that Google copied "only a fraction of a large work".

No company will make the enormous investment required to launch a groundbreaking work like Java SE if this Court declares that a competitor may copy it precisely because it has become so popular, or because it is functional — like all computer code.

Even Andy Rubin said we were rivals

Big Red characterised Google's problem – which it noted had been conceded by Android's founder Andy Rubin in earlier testimony – was that Sun's "APIs are copyrighted". It remarked: "Google could have taken the open-source license for free. But Google considered the give-back obligation 'unacceptable'."

The database vendor also held in its brief that Google's use of the code in question was "commercial" – which would weigh against the fair use ruling – and claimed that "Google's concededly 'competing' product harmed Java SE in actual and potential markets", pointing to Oracle CEO Safra Catz's testimony back in 2016 ( PDF ) about a discount given to Amazon for its Paperwhite e-reader:

Amazon switched from the Java platform to Android, then leveraged its ability to use Android for free to secure a 97.5 per cent price concession from Oracle.

( A San Francisco jury ruled in favour of Mountain View's fair use argument soon after the Oracle's boss's testimony.)

Big Red also added in yesterday's brief that Google could have licensed its code, but chose not to, opining: "Developers offer open-source licenses because it is in their business interest. Market forces likewise foster interoperability. Consumers demand products that work together, so software vendors 'wall off' their products at their peril."

It also said that, seemingly in opposition to its own argument, Google had "admitted that it purposely made Android incompatible with Java".

The case is Google LLC (Petitioner) v Oracle America, Inc and interested readers can follow the action here . ®

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