WASHINGTON (Reuters) – The U.S. Supreme Court appeared divided on Wednesday as it considered whether to protect Alphabet Inc’s <GOOGL.O> Google from a long-running lawsuit by Oracle Corp <ORCL.N> accusing it of infringing Oracle copyrights to build the Android operating system that runs most of the world’s smartphones.
The shorthanded court, down one justice following the death of Ruth Bader Ginsburg last month, heard oral arguments in Google’s appeal of a lower court ruling reviving the lawsuit in which Oracle has sought at least $8 billion in damages.
Some of the eight justices expressed concern that Google simply copied Oracle’s software code instead of innovating and creating its own for mobile devices. Others emphasized that siding with Oracle could give software developers too much power with potentially harmful effects on the technology industry.
A jury cleared Google in 2016, but the U.S. Court of Appeals for the Federal Circuit overturned that decision in 2018, finding that Google’s inclusion of Oracle’s software code in Android was not permissible under U.S. copyright law.
Oracle accused Google of copying thousands of lines of computer code from its popular Java programming language without a license in order to make Android, a competing platform that has harmed Oracle’s business.
Google lawyer Thomas Goldstein told the court that the disputed Java code should not receive copyright protection because it was the “the only way” to create new programs using the programming language.
“The language only permits us to use those,” Goldstein said.
But Chief Justice John Roberts suggested Google still should have paid Oracle for a license to Java.
“Cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it,” Roberts said.
Justice Neil Gorsuch questioned Goldstein on whether Google had simply piggybacked on Oracle’s innovation.
Gorsuch asked, “What do we do about the fact that the other competitors – Apple, Microsoft – have in fact been able to come up with phones that work just fine without engaging in this kind of copying?”
‘A THOUSAND WAYS’
Some justices expressed concern that siding with Oracle would essentially give software developers too much power by allowing them to copyright mere methods of organizing a system as opposed to anything creative or innovative.
“There are a thousand ways of organizing things which the first person who developed them, you’re saying, could have a copyright and then prevent anyone else from using them,” Justice Elena Kagan told Oracle’s lawyer, Joshua Rosenkranz.
Oracle and Google, two California-based technology giants with combined annual revenues of about $200 billion, have been feuding since Oracle sued for copyright infringement in 2010 in federal court in San Francisco. The case’s outcome will help determine the level of copyright protection for software, according to intellectual property lawyers.
Google has said the shortcut commands it copied into Android do not warrant copyright protection because they help developers write programs to work across platforms, a key to software innovation.
Even if the commands can be copyrighted, Google has said, its use of them was permissible under the “fair use” defense to copyright infringement, which can protect copying that transforms an original copyrighted work. Google has argued that its copying was “undoubtedly transformative” because it resulted in “an entirely new smartphone platform.”
The Federal Circuit in 2018 rejected Google’s defense, saying “a mere change in format (e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use.”
Oracle will recalculate its damages request if it wins at the Supreme Court and the case is sent back to a lower court, Oracle General Counsel Dorian Daley said in an interview. The compensation request would exceed the roughly $8 billion Oracle previously demanded, Daley added.
Justice Brett Kavanaugh asked whether a ruling in favor of Oracle would have the dire consequences that Google has predicted. Kavanaugh noted that it has been years since a lower court said Oracle’s commands deserved copyright protection.
“I’m not aware that the sky has fallen in the last five or six years with that ruling on the books,” Kavanaugh said.
Goldstein countered that the fallout from that ruling was limited because a jury later sided with Google on its “fair use” defense.
President Donald Trump’s administration backed Oracle in the case, previously urging the justices to turn away Google’s appeal.
The arguments were conducted by teleconference because of the coronavirus pandemic.
The court has eight justices rather than its full complement of nine. President Donald Trump has asked the U.S. Senate to confirm Amy Coney Barrett, his nominee to replace Ginsburg, by the Nov. 3 U.S. election.
(Reporting by Jan Wolfe and Andrew Chung; Editing by Will Dunham)