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Google v. Oracle

1 5 0
20.01.2020

The briefs have started to come in [see here], and the Supreme Court will soon hear oral argument (date TBD), in the Google v. Oracle** case.

**Connoisseurs of case captions will appreciate the nice "two-heavyweights-going-mano a mano," "Ali v. Frazier" quality of this one; no et als, no d/b/as, no on behalf ofs … just the two titans facing off. It has some of the flavor of my favorite captions of all, cases (one or two of which the Court usually hears every year) involving competing State boundary claims or water rights or some-such, whose captions always sound like college football or basketball games: Nebraska v. Oklahoma, Michigan v. Wisconsin, etc.

It is, perhaps, the most important copyright case the Court has heard in over a decade, and interest in the case runs high, to put it mildly. Twenty-six amicus briefs supporting Google's position, submitted by an exceptionally broad range of individuals, commercial entities, and non-profits—from Microsoft and IBM to Mozilla and Reddit and the Internet Society to the National Association for the Blind and the American Antitrust Association to a raft of law professors and computer scientists—were filed last week (plus two in support of neither party).*** That already puts the case at the high end of the distribution of the number of amicus briefs submitted per case (the average, in the Supreme Court, is around 10 or 11; see here), and we still have yet to hear from amici on Oracle's side, who have until Feb. 19th to file their own briefs.

***Jonathan Band has provided a helpful summary of these briefs here. [Disclosure: Band represents one of the amici (the Computer and Communications Industry Association), and I have signed on to one of the law professors' briefs supporting Google's position in the case.]

The case involves a claim by Oracle that Google, in developing its Android operating system, infringed Oracle's copyright in the Java programming platform. A little technical background is indispensable for understanding Oracle's claim and why it is so important.

A program written in the Java language contains two different kinds of code: "declaring code" and "implementing code." Declaring code (sometimes called a Java "declaration") invokes (or "calls") other programs from within a pre-existing library of Java programs, in order to accomplish some basic task—finding the larger of two integers, say, or summing a string of figures. The pre-written programs that are "called" from the library constitute the "implementation code."

Oracle gives this example in one of its briefs:

The URLConnection program, for example, has the following declaring code:

public URLConnection openConnection()

throws java.io.IOException

An app programmer who wanted to connect her application to BankofAmerica.com without writing her own code can call on Oracle's pre-written code by typing:

new URL('https://www.bankofamerica.com').open Connection()

Then, when the program runs, the Java platform recognizes the declaring code and invokes the corresponding "implementing code" to connect to www.BankofAmerica.com.

The availability of a library of pre-written implementation code for thousands of tasks—pre-written and pre-tested subroutines, in effect—is one of the things that has made Java such a popular language in which to code applications, enabling Java programmers to accomplish a wide variety of tasks without having to re-invent the wheel and devise their own implementing code for these basic functions from scratch.

Oracle's library of implementation code programs (sometimes also denoted as "methods") contains over 30,000 such programs, containing many millions of lines of code, and is one of its most valuable IP assets. Oracle owns the copyright in these programs—nobody disputes that—and it actively issues licenses for their use. Anyone may obtain a royalty-free "open source" license to this entire collection of Java subroutines. Because open source licenses require users to make any alterations they make to the pre-existing code available to the public, many commercial entites are unwilling to enter into them, and Oracle accommodates them by also issuing commercial royalty-bearing licenses, at a negotiated........

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