The Oracle v. Google Case
This page is dedicated to the Oracle v. Google case. The Disruptive Competition Project has collected resources on the case, including a short 60-second read, timeline, background, legal briefs, consequences, and media and scholarly analysis.
(1) The 60-Second Read
Following its 2010 acquisition of Sun, Oracle launched a long-running copyright litigation against Google, alleging that Android’s compatibility with Sun’s Java amounted to IP infringement. In May 2012, the district court found that the elements of the Java application programming interface (API) copied by Google were not protectable by copyright. In 2014, the Federal Circuit reversed the district court in a controversial ruling condemned by legal scholars and the software development community. The Supreme Court declined to review the Federal Circuit’s ruling. In September 2016, Google won again at the district court level. A federal jury found that Google’s use in Android of a tiny fraction of elements in the Java API was legally permissible “fair use.” In 2018, the Federal Circuit overturned this decision, in essence holding that the jury’s verdict was entitled to no weight.
While the district court judge and a federal jury have looked carefully at the evidence and found no wrongdoing, Oracle continues to insist Google “stole” code. The Federal Circuit, a DC appellate court, has overturned the district court twice, finding for Oracle. Google is now petitioning for Supreme Court review for the second time, backed by key players in the software industry and scores of public interest groups, advocacy organizations, and individual scholars.
DisCo has been covering this litigation for years. Excerpts from selected posts are available below in reverse chronological order, while all can be found here:
Amicus Briefs Filed in Support of Google’s Petition in Oracle Case [Jonathan Band, Feb. 27, 2019]
Summary: This post covers the fourteen amicus briefs filed in support of Google’s Jan. 25, 2019 petition to the Supreme Court to review the decisions of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Oracle’s long-running copyright infringement litigation against Google.
- “The fourteen amicus briefs can be divided into three groups: law professor briefs; industry briefs; and public interest briefs. All the briefs can be found on the Electronic Frontier Foundation website.”
- “Oracle will have the opportunity to respond to Google’s petition and the amicus briefs supporting it. Respondents typically ignore the amicus briefs supporting the petitioners. Here, however, Oracle may feel compelled to respond to briefs submitted by the country’s leading IP scholars, computer scientists, and software firms.”
Google Petitions Supreme Court in Oracle Case (Round Two) [Jonathan Band, Jan. 28, 2019]
Summary: This post covers Google’s recent petition to the U.S. Supreme Court to review the decisions of the CAFC in Oracle’s copyright infringement litigation against Google.
- “Google stated that the CAFC has upended the computer industry’s longstanding expectation that developers are free to use software interfaces to build new computer programs.”
- “Even if the Java interfaces fell within the scope of copyright protection, the Supreme Court should review whether Google’s use of the interfaces constituted fair use under 17 U.S.C. § 107.”
- “The petition stressed the importance of this case for the software industry: what Oracle seeks here is nothing less than complete control over a community of developers who have invested in learning the free and open Java language.”
The Federal Circuit Blows It Again in Oracle v. Google [Jonathan Band, Mar. 27, 2018]
Summary: This post recaps the Federal Circuit’s March 27, 2018 opinion, “reversing the jury’s fair use verdict in the long running copyright infringement litigation between Oracle and Google.”
- “Today’s decision is as flawed as the 2014 ruling.”
- “The Supreme Court denied Google’s cert petition from the 2014 decision, but it may have relied on the Solicitor General’s advice not to hear the case before a decision on Google’s fair use defense. Now that the CAFC has ruled on fair use, the Supreme Court might agree to hear the case. It could consider the CAFC’s 2014 ruling that the declarations were protected expression, as well as today’s fair use ruling.”
Previewing Thursday’s Oracle v. Google Oral Argument at the Federal Circuit [Jonathan Band, Dec. 4, 2017]
Summary: This post previews the Federal Circuit’s Dec. 7, 2017 oral argument, “review[s] how we got to this point and anticipate[s] some of the misleading arguments Oracle probably will make in its effort to overturn the jury’s fair use verdict.”
- “Based on Oracle’s briefs, Oracle is likely to appeal more to emotion than to reason, and to mischaracterize the facts and their legal significance.”
Oracle v. Google? Again? IP Dispute over Java API Returns to Federal Circuit [Matt Schruers, Feb. 27, 2017]
Summary: This post provides an overview of the case’s trajectory up until this point, key components of the Federal Circuit’s decisions, a commentary on the meaning of “plagiarism,” and a reflection on what’s to come.
- “Oracle is no stranger to the strategy of trying to infuse subjective values into the otherwise objective legal question of infringement: In 2014, SAP succeeded in knocking roughly 75% off an infringement judgment won by Oracle in part because Oracle had insisted on using words like ‘theft’ and ‘stealing’ at trial, notwithstanding a court order that doing so would be unnecessarily inflammatory and prejudicial.”
- “After waging a Seven Years’ War over Android, it isn’t surprising that Oracle appealed this loss. . . . But some aspects of the argument appear to be the equivalent of a ‘Hail Mary’ pass in the closing seconds of the game.”
Oracle America v. Google: The Action Shifts Back to the Federal Circuit [Jonathan Band, Sept. 28, 2016]
Summary: This post highlights key points in the district court’s denial of Oracle’s motion for a new trial and renewed motion for judgement a matter of law.
- “As discussed . . . , there were serious flaws in the CAFC’s 2014 reversal of the district court’s earlier finding that the Java declaring code was not protectable under copyright. Hopefully the CAFC will be more judicious this round.”
Sanity Prevails Again, Part II: The District Court Leaves the Oracle v. Google Fair Use Verdict In Place [Jonathan Band, June 10, 2016]
Summary: This post analyzes the district court’s order, particularly focusing on its reasoning regarding inter-system consistency and fair use factors.
- “[G]iven how the district court meticulously found evidence in the record supporting the reasonableness of the jury’s fair use finding, it is hard to imagine that the Federal Circuit will reverse it.”
Supreme Court Declines to Hear Oracle v. Google Case Over Java Copyrights [Matt Schruers, June 29, 2015]
Summary: This post explains why the Supreme Court declined to hear the case, leaving the Federal Circuit’s harmful decision in place, and discusses potential next steps for the ongoing litigation.
- “The consequences of the decision to let the Federal Circuit ruling stand may be significant[.] Observers have already expressed concern that the lower court’s decision bodes poorly for the software industry, since copyright claims could be used to threaten the interoperability of existing programs at a time when programs and programming environments are increasingly interdependent.”
- “While the lower court decision left standing today is actually of limited precedential weight, the rationale that it advances and the lack of agreement among courts on this matter may encourage more software copyright litigation.”
Further Reflections on Oracle v. Google [Jonathan Band, May 12, 2014]
Summary: This post highlights three key problems with the Federal Circuit’s May 2014 decision — namely, its incorrect interpretations of copyright, compatibility, and precedent.
- “The Federal Circuit’s decision is not binding precedent in any other case in any district court anywhere in the country.”
- “The Federal Circuit certainly undermined its credibility with its assertion that Google and its amici believe that software should not be protectable under copyright.”
- “The Federal Circuit opined that the desire to capitalize on the preexisting community of Java programmers ‘has nothing to do with copyrightability.’ But this plainly is wrong.”
The Federal Circuit’s Poorly Reasoned Decision in Oracle v. Google [Jonathan Band, May 9, 2014]
Summary: This post explains how the Federal Circuit’s May 2014 decision regarding the first appellate phase of the litigation between Google and Oracle has the potential to upset well-established practices in the computer industry that encourage interoperability and competition.
- “[T]he Federal Circuit issued a very disappointing decision today in the litigation between Google and Oracle that has the potential to upset well-established practices in the computer industry that encourage interoperability and competition.”
- “Judge O’Malley . . . completely distorted the policy arguments made by Google and its amici.”
- “For the past 20 years, . . . computer programmers in the United States have understood that copyright does not protect program elements necessary for interoperability. Based on this understanding, programmers have freely copied these elements, which has encouraged enormous creativity, innovation, and competition in the digital environment. Judge O’Malley’s decision casts doubt on this understanding.”
These are just a few selected articles from our ongoing coverage of this case. For all past DisCo posts on Oracle v. Google, click here: http://www.project-disco.org/tag/oracle-v-google
(4) Legal Briefs
Google Reply Brief
Supreme Court [Apr. 10, 2019]
Google Petition for a Writ of Certiorari
Supreme Court [Jan. 24, 2019]
Decision On Appeal
Federal Circuit [Mar. 27, 2018]
CCIA Amicus Briefs
Supreme Court [Feb. 25, 2019]
Summary: CCIA’s 2019 Supreme Court brief asks the Supreme Court to take up a case on whether copyright may be used to prevent software programs from communicating with one another.
- “Recognizing the potential for copyright to promote competition by enabling the development of new computer products and services, courts and legislatures around the world, including in the United States, have applied copyright to software in a manner that facilitates, rather than inhibits, legitimate competition. Unfortunately, the Federal Circuit’s two decisions in this case deviate from this competition-enhancing consensus.”
- “Allowing the Federal Circuit’s decisions in this case to stand will lead to the anomalous result of less competition in the software industry in the United States than in foreign jurisdictions by virtue of those jurisdictions following the pro-competitive rules invented here but rejected by the Federal Circuit.”
Federal Circuit [May 26, 2017]
Summary: CCIA’s 2017 Federal Circuit brief focuses on fair use and the impact of copyright on programmers and competition.
- “Restricting the portability of programmers can be just as anticompetitive as restricting the portability of programs. By enabling the mobility of programmers, the jury’s fair use determination preserves the ability of CCIA members to develop innovative and competitive products.”
- “It is not the proper role of copyright to lock programmers into a particular environment.”
Supreme Court [Nov. 7, 2014]
Summary: CCIA’s 2014 Supreme Court brief explained how the Federal Circuit’s opinion departed from decades of copyright precedent, and will impact innovation, competition, and consumers.
- “Lock-in would deter competition, investment, and innovation in the burgeoning cloud computing industry, which is known to be sensitive to policy changes in copyright.”
Federal Circuit [May 30, 2013]
Summary: CCIA’s 2013 Federal Circuit brief discussed the history of software interoperability and decades of U.S. and international copyright law pertaining to software.
- “In this appeal, Oracle America (‘Oracle’) asks this Court to overturn longstanding principles concerning the scope of copyright protection for computer programs and follow instead discredited thirty year old dicta.”
- “In short, in the computer industry, overly broad intellectual property protection directly restricts competition and innovation.”
- “The United States and over 40 other countries have recognized that permitting copyright law to impede interoperability would harm legitimate competition in the computer industry and impair the growth of the Internet economy.”
Additional Amicus Briefs from May 2017 before the Federal Circuit
Industry: Key players in the software industry have called on the Federal Circuit to support interoperability and the future of the software ecosystem by finding in favor of Google.
Microsoft, Hewlett Packard Enterprise, and Red Hat: The software industry leaders oppose Oracle, saying that overruling fair use “would have a profoundly destabilizing effect on the entire industry”. Despite owning very successful software systems, their brief points out that these companies also rely on software interoperability:
- “Today’s software ecosystem has developed to allow consumers to access their data from numerous interoperable platforms, like Windows, Android, iOS, and Linux, running on myriad different devices.”
- “That interoperability is made possible by the industry’s settled understanding of what does and does not constitute fair use of software code.”
- “Were the Court, in deciding this case, to alter the existing balance between copyright protection and fair use, it would have a profoundly destabilizing effect on the entire industry.”
76 Leading Computer Scientists, including Steve Wozniak, the co-founder of Apple, and Linus Torvalds, the principal developer of the Linux, characterize Oracle’s effort as “dangerous”.
- Overruling fair use “would dangerously undermine the settled expectations of computer scientists and the entire computer industry that rely upon the open nature of APIs.”
- Notably, these scientists “are responsible for key advances in the field, such as computer graphics, cloud computing, public key cryptography, object-oriented programming, virtual reality, and the Internet itself.”
GitHub, Engine, and App Developer Alliance: The popular software development platform GitHub joined with advocates for startups and software developers to explain that interoperability promotes innovation.
- Without interoperability and the support of fair use, “software developers would be at the mercy of platform and programming giants who could decide whether, when, and how anyone could write or use a computer program that ran on their system.”
- “By allowing an app developer to reach the widest possible market, legal protection for interoperability increases the number of creative new works produced each year.”
Mozilla: The open source software producer and Firefox browser developer championed interoperability in support of Google. It argued:
- “The story of the technology at stake in Oracle v. Google is about interoperability. When Google created the Android smartphone environment, it wanted to ensure that developers accustomed to writing Java-based software could immediately develop software for Android.”
- “Fair use is essential for software: it allows for new and creative re-implementations of code and is critical for interoperability between technologies and systems.”
Public Internet, Advocacy, and Academic Scholars: Scores of public interest groups, advocacy organizations, and individual scholars have weighed in against Oracle’s position.
American Antitrust Institute: The leading independent, nonprofit organization devoted to promoting competition said that “fair use has served as a critical doctrinal tool to facilitate the entry of new works into copyright-governed marketplaces, whether for books, music, film, video recorders, video games, or software.” And that:
- “copyright protection is not a tool for controlling markets, but rather a tool for promoting the progress of science and useful arts.”
- “Oracle’s arguments are internally inconsistent and that Oracle’s claimed market harm is not cognizable under the Copyright Act.”
- “Oracle’s narrow view of the fair use defense would raise substantial barriers to innovation and competition.”
42 Intellectual Property Law Professors: Numerous IP scholars, including many of the most prominent in the field, wrote “in support of freedom to reimplement software interfaces” and Google’s “good-faith belief that its reuse of elements of the Java API was lawful.”
Electronic Frontier Foundation and Public Knowledge: These public interest groups argued in favor of the jury’s decision, explaining that “a robust fair use doctrine is “necessary to fulfill copyright’s very purpose.”
Quantifying Risks to Interoperability in the Software Industry [Developers Alliance & NDP Analytics, Dec. 2017]
“In the event of diminished or extinguished interoperability, perhaps due to a court’s decision, we estimate $77 billion in economic productivity over the next eight years is at risk, on top of myriad additional indirect economic consequences. This report examines those consequences, along with the threats that would set them in motion.”
“If at the end of the day the Supreme Court leaves the CAFC’s 2014 ruling standing, that protectability ruling could have an adverse impact on the development of interoperable software and competition in the software industry.” – Jon Band, Interfaces on Trial 3.0
“However, by ruling that interoperability is relevant only to fair use, and not to protectability, the Federal Circuit would require a developer to perform a fair use analysis before developing an interoperable product. . . . This would place U.S. programmers at a competitive disadvantage to developers in other jurisdictions, such as the EU, that recognize that copyright does not protect program elements necessary for interoperability.” – Jonathan Band, The Global API Copyright Conflict
“Interoperability is also critical to the development of the new Internet of Things (“IoT”) that connects a wide array of devices beyond computers. . . . Fragmentation of the market due to competing, proprietary standards will severely curtail the value of IoT as a whole. Considering VCs invested more than $1 billion in IoT startups in 2016, interoperability in the IoT sector has substantial economic consequences.” – Joseph Gratz & Mark A. Lemley, Platforms and Interoperability in Oracle v. Google
“Interoperability is particularly important to startups. . . . By allowing an app developer to reach the widest possible market, legal protection for interoperability increases the number and availability of creative new works produced each year.” – Joseph Gratz & Mark A. Lemley, Platforms and Interoperability in Oracle v. Google
“Giving copyright owners control over interoperability risks shutting down the software development ecosystem altogether.” – Joseph Gratz & Mark A. Lemley, Platforms and Interoperability in Oracle v. Google
“While federal civil litigation is always expensive, a reliance on affirmative defenses will make it harder for defendants to prevail at an early stage. . . . These realities will likely reduce the number of companies willing to risk disruptive market entry against well-heeled incumbents with sizeable litigation war chests.” – Fred von Lohmann, The New Wave: Copyright and Software Interfaces in the Wake of Oracle v. Google
“The outcome of the Oracle v. Google case now before the Federal Circuit will have a significant impact on fair use law, software copyright law, and the balances struck between copyright owners’ legitimate interests in protecting their rights and the interests of second-comers in being able to build on earlier innovations that intellectual property laws aspire to achieve. In reliance on pervasive industry norms and decisions such as Accolade and Altai, software developers have for more than two decades been confident that they could reimplement APIs in independently created programs without infringing copyright laws. During those decades, competition and innovation in the software industry have thrived, and consumers have greatly benefited from the wide array of interoperable software products and services. . . . In order to promote ongoing innovation and competition in the software industry, courts should preserve a role for fair use in regulating the reuse of program APIs.” – Pamela Samuelson & Clark D. Asay, Saving Software’s Fair Use Future
(6) Media and Scholarly Analysis
Wall Street Journal: “Pamela Samuelson, an intellectual-property law professor at the University of California at Berkeley, said an Oracle victory would have given big tech companies too much power, by allowing them to require others to obtain licenses to work with their software.”
Financial Times: The Google win supports interoperability and is a victory for innovation.
Ars Technica: “[T]he first high-profile attempt to control [software interoperability] with copyright law has now been stymied by a ‘fair use’ defense.” According to some, an Oracle win would have hurt small developers and “upended the economics” of software.
How the judge on Oracle v. Google taught himself to code [Sarah Jeong, The Verge, Oct. 19, 2017]
Summary: Profile of Judge Alsup, who presided over the Oracle v. Google jury trial and has experience coding.
- “By sheer coincidence, these major cases have wound up in the docket of maybe the one judge in America capable of understanding their technical details: a judge who can code.”
- “There’s a reason why over 70 notable computer programmers signed onto an amicus curiae ‘Brief of Computer Scientists’ to the Federal Circuit, and later to the Supreme Court, in an attempt to explain the technical question at the heart of the case. Each one of them feared what Oracle v. Google could do to their profession.”
Why the Very Silly Oracle v. Google Trial Actually Matters [Sarah Jeong, Motherboard, May 25, 2016]
Summary: Article discussing the impact of the decision on the computer programming community by Federal Circuit judges lacking technical expertise.
- “To make things worse, what Android did with the Java APIs is dreadfully common in the technology industry, meaning there’s a lot more at stake than just $9 billion.:
- “If it’s illegal to write clean room implementations of APIs, then no one has clean hands. The now-shelved open source project Apache Harmony, like Android, reimplemented Java SE, and tech giant IBM contributed code to that project. Oracle itself built its business off a proprietary implementation of SQL, which was created by IBM.”
- “The proposition “Reimplementations of APIs are infringements” creates a recursive rabbit hole of liability that spans across the industry.”
In Oracle v. Google, a Nerd Subculture Is on Trial [Sarah Jeong, Motherboard, May 12, 2016]
Summary: Article discussing the impact of the decision on the computer programming community by Federal Circuit judges lacking technical expertise.
Interfaces on Trial 3.0: Oracle America v. Google and Beyond [Jonathan Band, January 2019]
Summary: The third volume, Interfaces on Trial 3.0: Oracle America v. Google and Beyond, picks off where the second volume left off, focusing in particular on the Oracle America v. Google litigation concerning Google’s copying of certain elements of the Java Application Program Interface (API). This litigation, initiated by Oracle in 2010, is still ongoing.
- “If at the end of the day the Supreme Court leaves the CAFC’s 2014 ruling standing, that protectability ruling could have an adverse impact on the development of interoperable software and competition in the software industry.”
Special Issue: Software Interface Copyright [Harvard Journal of Law & Technology, Vol. 31, No. 2: Spring 2018]
Summary: Journal issue dedicated to academic articles on copyright and APIs, including several specifically about Oracle v. Google.
- “The New Wave: Copyright and Software Interfaces in the Wake of Oracle v. Google”
- “Saving Software’s Fair Use Future”
- “Juries and the Development of Fair Use Standards”
- “Platforms and Interoperability in Oracle v. Google”
- “The Global API Copyright Conflict”
Three Fundamental Flaws in CAFC’s Oracle v. Google Decision [Prof. Pamela Samuelson, Aug. 13, 2015]
Summary: Assessment by U.S. leading authority on software copyright of the flaws in the Federal Circuit’s May 2014 decision.
- “The CAFC’s Oracle v. Google decision is deeply flawed and at odds with more than two decades of copyright precedents applying copyright law to computer programs. This article shows that the CAFC erred in its interpretation of § 102(b), in its overbroad conception of interfaces as protectable structure in programs, and in misconstruing and misapplying the merger doctrine to program interfaces.”