America’s highest court will decide whether Google’s use of a rival software company’s code to build its Android operating system was lawful, a judgement that could have massive implications for the wider technology industry.
On Tuesday, eight Supreme Court Justices heard arguments as to whether Google’s re-use of Java code, which is maintained by software giant Oracle, infringed copyright laws.
Google launched its Android operating system - now one of the most widely used in the world - in 2007, using 11,500 lines of code taken from Java, an open source platform created in the 1990s by Sun Microsystems. Open source technology is generally free for software engineers to copy and paste, with certain terms.
Oracle bought Sun in 2010 and sued Google for copyright infringement. Oracle argues that software engineers that use open source code need to make any products they build on top of it open source, to benefit the software community. A crucial driver of Google's revenues, Android’s operating system is walled off and Oracle says this discredits any licensing agreements that allowed it to use the code for free.
Oracle is looking for $9bn in damages. But the decade-long legal tussle is about much more than money.
“This affects not only the apps on your smartphone but the future of American innovation,” Brad Smith, Microsoft President and Kent Walker, Google’s top lawyer, wrote in an opinion piece published by the Wall Street Journal published on the eve of the hearing.
A crucial question for the case is whether developers can copy and paste Java’s Application Programmer Interface (API) code, which allows apps to speak to each other. APIs are an incredibly important connecting layer bridging many of the apps we use. For example, Facebook has an API that helps share data with other social networks, so users can post photos on both services.
IBM, Firefox and Microsoft, not typically allies of Google, have long argued that interfaces are not subject to copyright, that they never have been and never should be - unless we want to stifle technological innovation.
The judges appeared split on whether they believed upholding Oracle’s complaint would be quite as devastating as Google has made out. Questions were sceptical of Google’s position and at some points extremely concerned over its use of Oracle’s code.
“What gives you the right to use their original work?” asked Justice Samuel Alito. Justices Elena Kagan and Neil Gorsuch pointed out that other technology giants like Apple and Microsoft created viable operating systems without copying Java.
“We are told that if we agree with Oracle we will ruin the technology industry in the US,” chief Justice John Roberts said.
However Justice Brett Kavanaugh pointed out that the “sky hasn’t fallen in yet” since a decision made by a lower court to uphold Oracle’s complaint in 2014.
The familiar QWERTY keyboard, found on laptops, PCs and smartphones, was frequently been used as a comparison to better understand the case by Google, who say it would be unfair to copyright the design of QWERTY, just as it would be unfair to uphold a copyright claim against the use of Java.
"You didn't have to have a QWERTY keyboard on typewriters at the beginning, but my God, if you let somebody have a copyright on that now they would control all typewriters, which really has nothing to do with copyright," said Justice Stephen Breyer.
Three trials, two appeals and an eye watering amount of money has been spent on the legal battle and it is unlikely that a decision will come anytime soon. With the death of Ruth Bader Ginsberg and her nominated replacement Amy Coney Barrett set to shake up the court, a pandemic and an election next month, it may be some time until we learn if the Google and Oracle case will truly change the tech industry.