Google will defend itself against Oracle’s charge that it stole code to build its Android operating system before the Supreme Court on Wednesday — and Ruth Bader Ginsburg’s absence may be pivotal in a ruling that could shake up Silicon Valley’s business model.
The case is one of the first to be heard by the now 8-member court and Ginsberg’s death likely means one less vote in Oracle’s favor, legal scholars say. It also creates the possibility the remaining justices could split and leave the tech world in limbo on a crucial issue — who controls code that underpins much of modern technology.
“We need a decisive majority opinion in this case to settle critical copyright issues going forward in the digital age, and, without Ginsburg, we may not get it,” said Ralph Oman, the former register of copyrights under Presidents Ronald Reagan and George H.W. Bush.
The Google-Oracle case is perhaps the most consequential copyright suit to reach the court in decades and several lawyers note that Ginsburg was one of the court’s more predictable votes on intellectual property law. Legal experts say Ginsburg’s past decisions put her regularly on the side of property owners — in this case, Oracle.
The fight centers around roughly 11,000 lines of software code that Google used to develop its Android mobile operating system — the platform that helped Google become the dominant player in the global smartphone market. Oracle argues the code — which it acquired from Sun Microsystems — is copyright protected and must be licensed. But Google says such code is broadly used by software developers and therefore exempt under existing copyright law.
Ginsburg developed a reputation on the court for often siding with copyright holders, a track record that suggests to many she would have sympathized with Oracle’s position. Ginsburg authored majority opinions in several copyright cases over the years, including the 2003 ruling in Eldred v. Ashcroft, which upheld a law that extended copyright protections by an additional 20 years.
“She almost certainly would have sided with Oracle against Google’s brazen copying, and her legal conclusions, tethered to her powerful intellect, could have persuaded her colleagues to follow her lead,” said Oman, who now teaches at George Washington University Law School and filed amicus briefs on behalf of Oracle.
On a practical level, Ginsburg’s death creates the potential for an even split among the remaining justices. That would mean the case could either be re-argued after a ninth justice is confirmed or that the federal circuit court’s ruling in favor of Oracle would stand.
The latter scenario would preclude the Supreme Court from setting a new national precedent for copyright cases and settling longstanding disagreements about how the law applies in the digital age — a question that has only become more pressing as a larger swath of the economy runs on software.
Google and its supporters have warned that a ruling in Oracle’s favor would make it more difficult for developers, particularly those without deep pockets, to create new technology that builds on or is compatible with existing inventions. That could slow the cycle of innovation and open the door to copyright infringement lawsuits, they say. Critics counter that Google did not transform Oracle’s code but merely ripped it off.
“The misconception is that Google is asking to do something new, unusual or different here,” Tom Goldstein, the attorney representing Google, said in an interview. “The genuine shock in the entire software industry is the idea that this [code] is somehow protected by copyright.”
“All of those connections between different pieces of software and different platforms that we just totally take for granted today … are because software interfaces have always been understood to be open,” he added.
The case has gained unprecedented attention for a copyright fight and attracted dozens of amicus curiae briefs from academics, trade groups and corporations such as Microsoft. Their interest, spurred by behind-the-scenes advocacy by both companies, is a sign of the stakes for software companies at large. Microsoft, for instance, said in a brief backing Google that the case “threatens modern paradigms of software development.”
But for Oracle and Google, the more specific consequences come down to ego and money. The rivals have an animus that’s well known in Washington and has animated other legal and policy battles on issues like privacy, internet liability and antitrust. Oracle is also seeking $9 billion in damages from Google.
For Google, the path to victory remains largely unchanged.
“Google will need five votes to prevail regardless of [Ginsburg’s] absence on the court,” said Pamela Samuelson, a University of California, Berkeley law professor who filed a brief backing Google. “Intellectual property is a field of law in which the usual right-left splits don’t apply. Most of the IP cases in recent years have been unanimous or nearly so.”
Court observers said how the remaining justices will shake out remains less clear, though, in part because many of them don’t have the same history on the court as Ginsburg. One of the most notable software copyright cases, Lotus v. Borland, was heard in 1996 and the 8-member court at the time was split.
“I don’t think there’s been enough of a track record with particularly the newer justices to be able to say for sure which way they would come out in a case like this,” said Sy Damle, a partner at Latham & Watkins who until 2018 was the copyright office’s general counsel and associate register of copyrights.
The hearing Wednesday could see the justices drill into nuances of how copyright law applies to various types of computer code, and whether certain lines of code are considered popular or necessary enough to be freely used. The court has also expressed interest in more procedural questions, such as the power of a jury to determine fair use cases.
The Supreme Court agreed to take up the case late last year and originally scheduled arguments for March but postponed them due to the coronavirus pandemic. Lawyers will present their case Wednesday via teleconference as a safety precaution.
The Obama and Trump administrations have been asked to weigh in on the case in recent years, and Justice Department attorneys sided with Oracle both times.
Google has said the type of code in question, commonly know as an application programming interface or API, is widely used to develop new products and services, helping propel the rapid cycle of innovation for which the tech industry is known. But Oracle contends that copyright protections ensure those who spend time and money to build new technologies are compensated. Oracle declined to comment for this story.
Jacqueline Charlesworth, a partner at Alter, Kendrick & Baron, disagrees with Google’s assertion that the court’s decision could upend software interoperability, but said it may alter how copyright and fair use laws apply not only to software but more creative fields like film or music.
“The question is who is going to be investing in writing these … incredibly successful, extremely useful, very elaborate software? Who’s going to be putting the resources in there if it’s not protected?” said Charlesworth, who was previously the copyright office’s general counsel and associate register of copyrights under Obama.
The justices are expected to render a decision next year.
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