[Editor Charlie sez: this is an important roundup of commentary about the Supreme Court’s failing in the Google v. Oracle case.]
On April 5, the Supreme Court published its decision in Google v. Oracle, a case that many expected to make a substantial impact in copyright law, specifically in how software code is protected. While the decision appears to have very limited applicability, many in the copyright community voiced concerns regarding how the case was decided and what the decision’s potential ramifications are. Below is a compilation of various reactions to this decision…
Terrica Carrington at the Copyright Alliance brings us a must-read first rate analysis of oral argument before the Supreme Court in the Google’s appeal of its loss to Oracle in the Federal Circuit. (Full disclosure, I co-wrote an amicus brief supporting Oracle in the case on the fair use question.)
Bear in mind that the now-eight Justices on the Supreme Court will meet today (October 9) to vote on the cases like Google v. Oracle that were argued before the Court on Tuesday and on Wednesday (when the Oracle case was argued). After the vote, the most senior Justice in the majority (or one side in case of a tie) will assign the task of writing the opinion for the majority, and the most senior Justice in the dissent (or the other side in the case of a tie) will do the same among the dissenters. Concurrence opinions assign themselves essentially.
Opinions in the decided cases for the 2020-21 term will probably be released in mid-June 2021.
If confirmed, Judge Amy Coney Barrett will not vote on the Oracle case because the vote will have already occurred before she is seated. That means that there could be a split decision in Oracle which would probably mean that the Federal Circuit ruling below in Oracle’s favor will be affirmed by the tie vote. (There actually were two rulings by the Federal Circuit in Oracle’s favor, so both would likely be binding on Google.)
This would probably bind Google to the $5,000,000,000 payment to Oracle required by the Federal Circuit decision(s), but likely will not be binding precedent in other cases including other cases yet to be brought against Google or otherwise.
If they lose or there is a tie vote, Google will almost certainly engage in their usual lawfare shenanigans to get another bite at the apple. One manifestation of Silicon Valley rage might be to ask for a rehearing on the merits before the Supreme Court if the current vacancy is filled before the ruling is handed down in (presumably) June 2021.
It would be unusual for the Court to grant a rehearing on the merits (as opposed to denying an appeal on a per curium opinion or a writ of certiorari which is the more common rationale for requesting a rehearing). It would be particularly unusual when the case had been fully briefed and argued before the Court as is the case with Oracle.
There is a long line of similarly situated cases where a rehearing was requested after the death or illness of a Justice that created the vacancy–and most were denied. The Court often held the subject case over the Court’s summer recess, holding oral arguments months later which obviously did not happen in Google v. Oracle. (See Halliburton Oil Well Cementing Co. v. Walker, 327 U.S. 812 (1946), 329 U.S. 1 (1946); MacGregor v. Westinghouse Elec. & Mfg. Co., 329 U.S. 402 (1947); Baltimore & Ohio R.R. v. Kepner, 314 U.S. 44 (1941); Home Ins. Co. v. New York, 122 U.S. 636 (1887) (granting rehearing February 7, 1887), and 134 U.S. 594 (1890) (reargument March 18-19, 1890); Selma, Rome & Dalton R.R. v. United States, 122 U.S. 636 (1887) (granting rehearing March 28, 1887), and 139 U.S. 560 (1891) (reargument March 25-26, 1891).
However, since the Oracle case was fully briefed and argued and then some, requesting a rehearing seems a fruitless exercise, which of course, doesn’t mean Google won’t pull up their big-boy fruitless of the looms and give it the old Silicon Valley try. Granting rehearings on the merits because of a vacancy would not be a good precedent for the Court as there are going to be lots of cases in a procedurally similar situation, and they’ll all want it just as a matter of drill.
Rule 44 of the Rules of the Supreme Court of the United States provides:
Any petition for the rehearing of any judgment or decision of the Court on the merits shall be filed within 25 days after entry of the judgment or decision, unless the Court or a Justice shortens or extends the time. The petitioner shall file 40 copies of the rehearing petition and shall pay the filing fee prescribed by Rule 38(b), except that a petitioner proceeding in forma pauperis under Rule 39, including an inmate of an institution, shall file the number of copies required for a petition by such a person under Rule 12.2. The petition shall state its grounds briefly and distinctly and shall be served as required by Rule 29. The petition shall be presented together with certification of counsel (or of a party unrepresented by counsel) that it is presented in good faith and not for delay; one copy of the certificate shall bear the signature of counsel (or of a party unrepresented by counsel). A copy of the certificate shall follow and be attached to each copy of the petition. A petition for rehearing is not subject to oral argument and will not be granted except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.
Oracle pushed back Wednesday against Google’s claims that the survival of software innovation rests on their long-running copyright battle, arguing an Oracle victory will ensure software makers enjoy copyright protections.
Why it matters: The Supreme Court is considering key questions related to software copyright and fair use — with billions of dollars in damages in the balance.
[Editor Charlie sez: The Oracle v. Google case is going to be the most important copyright case in a very, very long time. Oracle won the case on appeal twice and Google got the Supreme Court to review. The case is about two issues being copyright in software and whether Google’s taking of Oracle’s code is fair use and permissionless innovation. Because of the fair use argument, this is not just some battle of tech companies because no one knows better than us that Google will take any win on fair use and push it even farther.
So all artists, songwriters, photographers, film makers, authors–all of us–are in the same boat with Oracle on this point. Sure Oracle is a big company, but Google is an even bigger company with a trillion dollar market cap and Google is trying to roll over Oracle the same way they roll over us.
In a must read “friend of the court” brief, Helienne Lindvall, David Lowery, Blake Morgan and the Songwriters Guild of America make this case as independent artists, songwriters and labels all harmed by Google’s policies that are out of touch with the market starting with YouTube.
As Beggars Group Chairman Martin Mills put it, “[P]olicing the YouTubes of this world for infringing content is a herculean task, one beyond all but the largest of companies. For my community, the independents, it’s a game of whack-a-mole they can only lose.”
Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is, in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.
Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Amici have experienced, observed and believe that Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model.
His Master had told him to call for help should a Wolf attack the flock, and the Villagers would drive it away. So now, though he had not seen anything that even looked like a Wolf, he ran toward the village shouting at the top of his voice, “Wolf! Wolf!”
As he expected, the Villagers who heard the cry dropped their work and ran in great excitement to the pasture. But when they got there they found the Boy doubled up with laughter at the trick he had played on them.
The Boy Who Cried Wolf, Aesop’s Fables No. 210
Quick–how many times have you heard Google try to beat back challenges to their bad behavior with the old “Don’t Break the Internet” meme? We’ve seen it many times, of course, but repetition doesn’t make it right and it definitely doesn’t make it true.
If there’s legislation, a lawsuit or some policy action that Google finds a commercial threat to their vast riches, especially including ill-gotten gains, it’s only a matter of time until they summon the academic and NGO chorus of Cassandras to bemoan, wail and rend garments over the single most important existential threat to humanity since the plagues of Egypt–breaking the Internet.
Breaking the Internet takes a few different forms including crushing innovation (or in the Googleplex, stealing everything that they can get away with). And yet after a decade or more of this bunk, the Internet still trundles on, some how squeaking to get by despite Google’s breathless warnings. Not to mention the multi, multi million dollar megaphone they use to broadcast their message far and wide from the halls of Congress to the children of Members of the European Parliament.
Google’s at it again, this time as part of the litigation involving its theft of copyrights from Oracle. The problem for Google is that they can’t just run roughshod over Oracle the way they can practically everyone else, including governments. We should be paying attention because for once Google may actually get punished in a way that hurts unlike the multi-billion fines in Europe that they absorb as a cost of doing business.
Here’s the story this time. Google was getting their lunch eaten by Apple’s iPhone and needed to get Android up and running fast. Google wanted to license a bunch of Java applications that were owned by Oracle. You may say, what about Sun Microsystems which created Java? Correct, but Oracle bought Sun so that’s how Oracle got involved. And extra points if you remember who used to work at Sun Microsystems? That’s right–UNCLE SUGAR! Eric Schmidt his bad self. Strange coincidence, yes? The same Uncle Sugar who mysteriously resigned as Google’s executive chairman. Uncle Sugar says, “Me, too!” Boy we miss you Unk.
But I digress. So Google supposedly creates some of its own Java-related software. Let’s get this straight–Google could have developed their own platform with identical functions to Oracle’s Java as did Apple and Microsoft. But–and this is really what I think the case is all about–Google made verbatim copies of several Java APIs that they couldn’t reverse engineer…sorry, I mean work around. This all to avoid getting a license. And you know how they argue that they got around those verbatim copies?
You guessed it–fair use. Laughable, but no more laughable that Google’s whack a mole DMCA fake license practices they are fighting us on with their opposition to the CASE Act based on..you guessed it, fair use. Breaking the Internet, etc. It’s funny until you realize they are not kidding.
Google lost twice against Oracle in the case, but appealed its most recent failure to the Supreme Court of the United States, or “SCOTUS” as it’s known. So Google’s big strong line in their papers is this:
Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications….[If Google loses the case, the ruling] will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.
Yep…law and order every time, marshal. Google wants to wrap itself in the flag of those plucky “developers” who are just incapable of speaking for themselves so Google must do it for them as well as truth, justice and the American Way. This is about as believable as Google positioning themselves to be on the side of artists because they paid some YouTubers to make propaganda against the European Copyright Directive.
Will innovation survive? Will the Internet be broken? Or did the boy cry wolf one too many times? Will justice be done for once and done to Google?
Stay tuned. There may be another Wreck-It Ralph sequel in the works .