U.S. Solicitor General Donald Verrilli has urged the Supreme Court not to hear a closely watched case between Google and Oracle over the copyrightability of APIs.
Oracle has claimed that Google owes it $1 billion in damages for illegally using a total of 37 copyrighted Java API packages in Google's Android operating system. Google, and numerous other technology vendors and legal groups, have argued a "fair-use" right to the APIs.
Two lower courts that have heard the case, originally filed in 2010, have been split on the issue. In 2012, the U.S. District Court for the Northern District Court of California dismissed Oracle's copyright claims to the disputed APIs and said that Google did nothing illegal in using the code in its Android platform.
However, the U.S Court of Appeals for the Federal Circuit reversed that decision in May 2014, holding that Oracle indeed had a copyright claim to the APIs. The ruling prompted Google to file a petition with the U.S. Supreme Court, which in turn sought Verrilli's position on the topic.
Verrilli's 27-page response this week sided with Oracle's views on the matter and held that Google's petition should be denied.
"Although [Google] has raised important questions about the effects that enforcing [Oracle's] copyright could have on software development, those concerns are better addressed through [Google's] fair-use defense, which will be considered on remand," Verrilli wrote.
A total of 37 of the 168 Java API packages in the Android platform contain code that has been copied verbatim from Oracle's copyrighted material, he said. About 7,000 lines of declaring code in total, including the names and specifications of methods and classes and their hierarchical and interdependent relationship to each other have been copied, Verrilli noted in his brief.
Some of Google arguments about the broader implications of extending copyright protections to APIs are valid, but those concerns would be better addressed through the fair-use doctrine, Verrilli said.
In an emailed statement, an Oracle spokeswoman said: "Oracle is pleased that the U.S. Solicitor General has recommended that the Supreme Court deny Google's cert petition. In 2014, the Court of Appeals for the Federal Circuit unanimously rejected Google's arguments that software is entitled to less copyright protection than other original, creative works." The Solicitor General's brief affirms the importance of copyright protection as an incentive for software innovation, she said.
A Google spokesman expressed disappointment over the brief and said the company would continue to defend its position. "We look forward to supporting the clear language of the law and defending the concepts of interoperability that have traditionally contributed to innovation in the software industry," the spokesman said in an emailed statement.
Verrilli's position is disappointing and betrays a basic lack of understanding of how APIs work, said Michael Barclay, special counsel at the Electronic Frontier Foundation.
EFF last year filed an amicus brief in the case on behalf of more than 70 computer scientists who share Google's position on the right to use the contested Java APIs under fair-use laws. Google's supporters in the case have maintained that APIs are fundamental to interoperability on the Web and that extending copyright protections to APIs would seriously hamper the ability of software developers to write interoperable software.
"The brief is wrong on the facts and wrong on the law," Barclay said. Though it appears persuasive on its face, Verrilli's conclusions about the applicability of copyright laws are off-base, he said.
"The Supreme Court should absolutely hear this case," Ed Black, president and CEO of the Computer and Communications Industry Association (CCIA), said in a statement. "The technology sector is heavily dependent on interoperability and imposing legal constraints on interoperation between programming languages can lead to serious competitive harm. The Justice Department got this wrong."
It's rare, but not unheard of, for the Supreme Court to hear a case after the government advises it not to as Verrilli did in the present instance, Barclay said. But the fact that the court asked the DOJ for its opinion is significant because it shows a high level of interest in the topic in the Supreme Court, he added.