— Scotus (@Scotus) January 12, 2015
The U.S. Supreme Court has asked the Obama administration to weigh in on the huge copyright battle between Google and Oracle. On Monday SCOTUS asked the U.S. solicitor general to submit a brief in the case, a common practice when the justices seek the federal government’s legal views in cases with national implications. This does not mean they will take or hear the case but it shows they have a keen interest in learning more about the issues.
Oracle owns Java after they bought Sun Microsystems who developed the language. Goggle’s Android uses a an implementation very similar if not nearly identical to Java to the point that apps written for java can also run on Android with almost no changes or penalties. Oracle sued Google back in 2010 and claimed Google’s Android operating system had violated copyright protections by improperly incorporating parts of its Java technology.
Oracle attorney Michael Jacobs pledged Oracle “will prove to you from beginning to end…that Google knew it was doing the wrong thing,” arguing that Google knew all along it was stealing Oracle’s technology. “This case is about Google’s use, in Google’s business, of somebody else’s property without permission,” said Jacobs. “You can’t just step on someone’s IP because you think you have a good business reason for it.”
Jacobs told the federal jury that Google knew since 2005 that it had to license the Java programming language in order to develop its Android software, but failed to do so because it didn’t want to share portions of the popular mobile OS. Using Oracle’s Java ensured the Android software would appeal to programmers who write applications for smartphones, thus giving Google a commercial advantage, added Oracle’s attorney. “Google makes a lot of money from Android, and a portion of that money is Oracle’s.”
A federal judge initially sided with Google because the Java components would not be covered under copyright law but a Federal Circuit of Appeals disagreed. Google is now asking the SCOTUS to hear the case and reverse the appeals court decision. The implications for Google and Android are massive.
This is potentially a huge case because of the implications it would have for Google and Android. Apple has been on a roll recently and the iPhone 6 sales are even better than expected. There are rumors that Samsung is looking to buy troubled Blackberry in a last ditch effort to revive their falling sales of their Galaxy line. Analyst Ben Bajarin said by Twitter “In Q3 2014 Samsung’s Galaxy S products + Note products saw nearly 50% decline in sales both QoQ and YoY according to my mix estimates.”
Tech pundit and writer Daniel Eran Dilger wrote: “It’s hard to not understand that when faced with the reality that Apple earns 86 percent of the handset industry’s global profits, while being the only company to take any real action to improve the status quo in a sea of cutthroat penny pinching manufacturers that revolve around free software.”
The big-picture issue in this years-long back-and-forth is, in the words of Google’s October 6, 2014 petition (PDF) to the high court, “whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way.”
I would imagine Google could try and claim that their Android unit operates at a loss so to mitigate damages but Android is really just a freebie that acts as a trojan horse for all their big revenue streams like search and ads. Android must include certain Google apps and this is where Google makes their income.
Florian Mueller who writes a blog devoted to these types of patent issues had this to say.
The Supreme Court appears unconvinced for now that this case really needs to be heard (otherwise it could have decided based on the submissions it already has on file), but in light of Google’s amicus brief campaign it apparently wants to double-check whether there really is a key issue at stake here for innovation. That’s why the U.S. government is asked to chime in.
It would be downright irresponsible for the U.S. government to support Google’s cert petition because it would discourage investment in software development at least until the case is resolved and, if anything goes wrong, for a very long time. I’m sure the software industry at large, which is firmly on Oracle’s side here, will convey that message to its government.
Google could be on the hook for billions potentially but even more worrying for them is possible changes they might need to make to Android if they do not secure the permission of Oracle to use their code.