Google to Supremes: Don't Listen to the Solicitor General

Google says the Supreme Court should ignore the recent recommendation of the Solicitor General of the United States, which advised the court to refuse to review a 2016 appeals court's rulings that Google infringed on Oracle's copyrights to Java code in its Android mobile operating system.

Google filed a writ of certiorari with the Supreme Court earlier this year, asking for a review of the judgment of the U.S. Court of Appeals for the Federal Circuit in this case. Then, last month, the Solicitor General filed an amicus curiae brief to express the views of the United States that Google "identifies no sound basis for further review” by the court.

That this nine-plus-year-old case is still alive should surprise no one. If that earlier ruling stands, Google and its parent company, Alphabet, lose billions—$8.8bn to be exact; if it's overturned, Oracle won't recover the billions it claims to have lost.

Still, the argument Google made in a supplemental brief, filed last week, is a reminder that money isn't the only thing at stake here, and that the company's position is shared by some thoughtful people.

"The Solicitor General's further effort to cabin the Federal Circuit's fair use ruling as fact-bound is refuted by the 175 individuals, companies, and organizations that filed 15 amicus briefs in support of the petition to explain that it is imperative that this Court grant certiorari,” Google's petition reads. "Those submissions recognize that the Federal Circuit has effectively prohibited the widely accepted industry practice of reimplementing software interfaces, inevitably causing serious harm to current practices and future innovation in the software industry.”

But the SG's response to Google's argument is worth keeping in mind: "[L]ower courts have wrestled with issues, not presented here, about whether making temporary copies of existing code to ‘reverse engineer' a system, in order to create compatible works that do not incorporate the pre-existing code, constitutes fair use…. But here, petitioner took lines of code from a rival software platform to make a competing platform that is not interoperable with the Java platform.”

Following this story has been improving my vocabulary -- and not just my Latin. Who knew "cabin” could be used as a verb? (It means "confine within narrow bounds.”) And it has been a long haul. Oracle originally sued Google in 2010, and the search engine giant's argument that its use of 37 Java APIs was allowed under the fair use provisions of the federal copyright law, and therefore did not infringe on Oracle-owned copyrights, failed to persuade the court. "There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform,” a panel of three Federal Circuit judges wrote in their opinion.

Why doesn't the U.S. Solicitor General, Mr. Noel Francisco, feel compelled to weigh in on this case? Judging from the amicus curiae brief, he buys Oracle's argument, but why get involved in this long, long battle? My calls to the SG's office were not returned by press time, but it's a good question, so I'll keep asking, though I'm pretty sure the end is near.

Update: The Solicitor General hasn’t returned my calls, but a reader sent me an email answering my question. The SG is responding to an order from the Court itself requesting his views on whether the Court should hear the case. Here’s a link to the April 29 order list. Apparently, the Court gets a lot of these. Also, Hannah Coleman, who was an intern at the National Immigration Law Center at the time, wrote a nice article in 2017 explaining how a “Call for the Views of the Solicitor General” (CVSG) works. “Even though CVSGs are described as ‘invitations,’ the Solicitor General’s Office views them as orders, and the Solicitor General responds to every invitation it receives from the Supreme Court,” she wrote.

Posted by John K. Waters on October 23, 2019