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 The case involves how much copyright protection should extend to the
Java programing language. Oracle won a federal appeals court ruling
last year that allows it to copyright parts of Java, while Google
argues it should be free to use Java without paying a licensing fee.
Google, which used Java to design its Android smartphone operating
system, appealed to the U.S. Supreme Court. The high court then
asked the Obama administration in January for its opinion on whether
it should take the case.
The nine justices request that U.S. Solicitor General Donald
Verrilli, Jr., the government's top lawyer before the Supreme Court,
weigh in on about 20 cases a year in which the federal government
has a strong interest. The justices generally give greater weight to
what he or she says than other third parties that take a side in a
case, an influence which has caused the solicitor general to be
dubbed the "tenth justice."
According to Google, an Oracle victory would obstruct "an enormous
amount of innovation" because software developers would not be able
to freely build on each others’ work. But Oracle says it is
effective copyright protection that’s the key to software
innovation.
It is unclear what position the administration will ultimately take.
Deliberations within the Obama administration have mirrored the
larger debate in the technology world about how broadly copyright
should apply to software, the sources said.
ANTITRUST IMPLICATIONS
Charles Duan, a lawyer for interest group Public Knowledge, that
backs Google in the case, said he met with officials at the Federal
Trade Commission and the Department of Justice antitrust division to
advance the view that Oracle is seeking a monopoly on software.
"They were very interested in the competition implications of the
case," Duan said of the antitrust regulators. An FTC representative
declined to comment.
Another source briefed on the discussions said the solicitor
general's office has pushed back on pro-Google arguments. The debate
is coming down to the wire as the solicitor general’s office, a
division of the DOJ, usually files its opinions by the end of May to
give the Supreme Court time to make a decision by the conclusion of
its term at the end of June.
A Department of Justice spokeswoman declined to comment.
Google's Android operating system is the world's best-selling
smartphone platform. Oracle sued Google in 2010, claiming that
Google had improperly incorporated parts of Java into Android.
Oracle is seeking roughly $1 billion on its copyright claims.
The case examined whether computer language that connects programs -
known as application programing interfaces, or APIs - can be
copyrighted.
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A San Francisco federal judge decided that the Java APIs replicated
by Google were not subject to copyright protection and were free for
all to use. But the U.S. Court of Appeals for the Federal Circuit
reversed that, saying it was bound to respect copyright protection
for software "until either the Supreme Court or Congress tells us
otherwise."
Legal teams from both Oracle and Google made separate presentations
to government officials in March, a third source familiar with the
meetings said. The company pitches attracted so much interest from
different government agencies that they had to be moved to a larger
conference room at the Department of Justice to accommodate all the
lawyers, this source said.
Some of the administration’s technology advisers have been
advocating the pro-Google position as well, the second source said.
This week, the White House appointed Edward Felten as deputy U.S.
Chief Technology Officer. Felten, a computer scientist, signed onto
a legal brief last November urging the Supreme Court to hear
Google's appeal.
The White House did not respond to a request for comment, nor did an
Oracle spokeswoman. A Google representative declined to comment.
Meanwhile the U.S. Copyright Office, a division of the Library of
Congress, is known as being pro-copyright which could make it more
likely to back Oracle, according to a lawyer for groups that support
Google. The Copyright Office did not respond to a request for
comment.
Other technology companies, including Yahoo and Hewlett-Packard,
filed legal briefs at the Supreme Court supporting Google, arguing
that the Federal Circuit ruling "upset settled expectations about
the scope of copyright law."
Yet Oracle argued that the Supreme Court should decline the case
because the Federal Circuit applied settled legal doctrine.
"Google's argument — that the code lost all copyright protection
because it became popular and Google wanted Android to be popular,
too — would not fly for any other work," Oracle's attorneys wrote.
(Reporting by Dan Levine in San Francisco and Lawrence Hurley in
Washington; Editing by Amy Stevens and Martin Howell)
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