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Supreme Court Weighs Copyright Fight Between Google and Oracle -- Update

10/07/2020 | 03:59pm EST

By Brent Kendall

WASHINGTON -- The Supreme Court on Wednesday sought to police a multibillion-dollar copyright battle between Oracle Corp. and Alphabet Inc.'s Google in a way that would retain legal protections for software code without throwing the tech industry into disarray.

The decade-old case centers on Oracle's allegations that Google's Android smartphone-operating system infringed on copyrights related to Oracle's Java platform, which Oracle acquired when it bought Sun Microsystems Inc. in 2010.

During about 90 minutes of oral arguments, the justices considered issues related to how software developers use application-program interfaces, or APIs -- prewritten packages of computer code that allow programs, websites or apps to talk to one another.

Oracle has accused Google of illegally copying more than 11,000 lines of Java API code to develop its Android operating system, which runs more than two billion mobile devices world-wide.

Google's unlicensed use of that code is no better than "if someone wanted to write a book that reproduced the 11,000 best lines of 'Seinfeld'," Oracle lawyer Joshua Rosenkranz told the court.

Mr. Rosenkranz said Microsoft Corp. and Apple Inc. spent billions developing their platform code, and Google should have done so as well. "The Copyright Act does not give Google a pass just because it would be expensive to recreate our expression," he said.

Oracle previously sought as much as $9 billion in damages from Google, though that request is now several years old and is likely to increase if Oracle wins at the high court.

Google lawyer Thomas Goldstein told the court that copyright protections aren't supposed to extend to basic computer code that relates to how software functions. The effect of Oracle's proposed rule "would be to make the creation of innovative computer programs less efficient," he said.

"The long-settled practice of reusing software interfaces is critical to modern interoperable computer software," Mr Goldstein said. Oracle, he said, was seeking to keep software developers "prisoners" of the Java platform and attempting to "block the publication of millions of programs on an innovative smartphone platform."

Several justices voiced resistance to Google's arguments.

"Cracking the safe may be the only way to get the money that you want, but that doesn't mean you can do it," Chief Justice John Roberts told Mr. Goldstein. If Oracle has the only way to get in, "the way for you to get it is to get a license," the chief justice said.

Mr. Goldstein responded that if Oracle wrote a book about how to crack safes, that wouldn't give the company the exclusive right to open them.

Justice Clarence Thomas had a different analogy, wondering whether Google's position was like using an opposing football team's playbook. Justice Samuel Alito, meanwhile, said that under Google's arguments, "all computer code is at risk of losing protection."

The court, however, also wondered what a win for Oracle would do to a tech world in which developers build new applications that use others' APIs to make their products work. Justice Sonia Sotomayor said Google used less than 1% of the Java code. Justice Stephen Breyer questioned whether Oracle's APIs were like the QWERTY keyboard.

"If you let somebody have a copyright on that now, they would control all typewriters, which really has nothing to do with copyright," Justice Breyer said.

Mr. Rosenkranz said the keyboard was "purely mechanical," not a creative expression like how Oracle wrote its code. "The software industry rose to world dominance since the 1980s because of copyright protection, not unlicensed copying," he said.

The case has attracted widespread attention in tech circles and beyond. Businesses that rely heavily on copyright protections, including in the movie, music and publishing industries, are supporting Oracle, expressing concerns about Google's claims to fair use of content created by others.

Software makers including Microsoft and a leading association of internet companies are supporting Google, saying copyright law must allow some fair use of computer programs in order to promote follow-on technologies and interoperability between programs.

The Trump administration is supporting Oracle in the case. Justice Department lawyer Malcolm Stewart told the justices that copyright protections provide incentives for companies to invest in developing new code. The tech industry wouldn't face ruin if Google loses, he said.

Google and Oracle had to wait longer than expected for the Supreme Court's consideration: The justices were supposed to hear the case in March, but postponed it when they adjusted their schedule because of the coronavirus pandemic.

A decision is expected by June 2021.

Write to Brent Kendall at brent.kendall@wsj.com

(END) Dow Jones Newswires

10-07-20 1759ET

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