Regular readers of this blog may remember that I have on earlier occasion covered the very slow march through the court system of a monster of an intellectual property case, the dispute over the legality of Google's use of Java interfaces in its Android coding.
But to review: years ago Oracle bought Sun, the company whose engineers had created the Java programming language, on which various APIs (application programming interfaces) have in turn been built.
The dispute is a matter of copyright, not of patents. And early on in this litigation, Google took the position that there is no copyrightable interest in APIs. The Federal Circuit held against that view, and remanded to the trial courts for consideration of whether Google use is "fair use" under copyright doctrine, or unfair and thus infringing use. The Supreme Court, in 2015, declined to hear an appeal from the Federal Circuit, so Google resigned itself to fighting that battle in the trenches of a trial.
The jury held that it WAS a fair use. This time, then, it was Oracle's turn to pursue appeals, claiming that the jury's decision is not defensible even within the rather broad discretion that is supposed to be given to juries. It has won on that contention in the appellate courts. So far. But the matter is now before the Supreme Court which, in its first week back (as one of the first matters it heard after the death of the notorious RBG) heard oral arguments on this matter on October 9, 2020.
It would be an interesting exercise to research the following:
1) What were RBG's views on copyright in general and on this case as of 2015 in particular,
2) How do those views contrast with the views, as we might glean them from academic writings or opinions, of ACB?
But since ACB wasn't on the court for the arguments, it is unlikely she'll cast a vote on this one.
There are two ways Google can win: it could convince the Justices to reverse the 2015 decision of the Federal Circuit that they refused to hear back then, and hold at last that APIs are not copyrightable. Or it can convince them to let the jury's verdict stand, that even though APIs are copyrightable, their use of these APIs is a fair use.
Stephen Breyer made a fascinating observation. He compared the Java API to the QWERTY keyboard system. There are other ways to lay out a keyboard. But for generations typists and now computer users and the buyers of smartphones have been using QWERTY. So QWERTY has come to seem indispensable. From a micro point of view it IS indispensable. It would to give some person or entity a striking windfall to let then now copyright the QWERTY layout, even if there were some historic justification for doing so.
Breyer, then, seems inclined to give the win to Google, though such inferences from questions at oral argument cannot be counted on.
We will wait on the outcome of this one.
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