Alphabet Inc. (GOOGL) could have another major news flash on Monday related to its legal standing, and it's not about fines this time around.
The tech giant is expected to hear its whether or not its appeal of a $9 billion copyright lawsuit filed by tech rival Oracle Corp. (ORCL) will head to the highest court in the land.
For those not following the case, Google was sued in 2010 for issue for utilizing copyrighted application program interfaces (API) from Oracle's Java language in its Android software.
In the initial case, Oracle argued that Google developed Android without a Java license and infringed upon seven separate patents. In May 2012, Judge William Alsup of the Northern District of California ruled in Google's favor, scolding Oracle's star lawyer, David Boies, former counsel to both Theranos and Harvey Weinstein.
"I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck [one of the key code copyrights in question] a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident," Alsup reasoned. "There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America --how could you even make that kind of argument?"
Oracle was not ready to give up, however.
Oracle appealed to the U.S. Court of Appeals for the Federal Circuit in 2013, which played out in their favor in 2014.
"We conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages at issue are entitled to copyright protection," the court of appeals ruled in a May 2014 decision. "We therefore reverse the district court's copyrightability determination with instructions to reinstate the jury's infringement verdict."
But, as you might have anticipated, this was not the final word either.
Google appealed the decision later in 2014, beseeching the U.S. Supreme Court to hear the case. Google argued that upholding the appeals court ruling "would obstruct an enormous amount of innovation in fast-moving, high-technology industries, in part because innovation depends on software developers' ability to build on what has come before."
"If the Federal Circuit's holding had been the law at the inception of the Internet age, early computer companies could have blocked vast amounts of technological development by claiming 95-year copyright monopolies over the basic building blocks of computer design and programming," the appeal states. "By the time Google and countless other innovators even came onto the scene, others could have locked up the field for longer than most people will live."
The argument cites such commonplace devices as QWERTY keyboards as examples.
A group of computer scientists came out in support of Google's arguments at the time, positing an Amicus Brief shortly after the appeal.
"Amici are computer scientists who believe the Federal Circuit's ruling will stifle progress in their field," the brief declares. "Amici include many of the pioneers of modern computing, who have invented or contributed to the authorship of computing technologies that have been essential to the development of the Internet, personal computing, and the explosion of technology industries in the past four decades. They have joined this brief because they believe the Federal Circuit overextended copyright coverage in a manner that is irreconcilable with both the purposes of copyright law and the reality of computer science."
Oracle was inclined to disagree with both parties in its initial response in December 2014.
"Google copied at least 7000 lines of original computer source code that Oracle wrote, and included the copied code in its own software platform, even though Google could have written its own code (rather than copying Oracle's) to perform the same functions," a response states. "Google's petition does not address the structure-and-organization rationale. Google's lead argument, in fact, is inapplicable to structure and organization...Because Google's petition ignores an adequate alternative basis for affirmance, it must be denied."
"There is no dispute that Google was free to write its own code to perform the same functions as Oracle's," the myriad of lawyers enlisted by oracle declared. "Instead, it plagiarized."
The appeal was forwarded to the Second District Court of appeals in 2015. The arguments in the case began in 2016 and sought to determine whether or not Google's actions were protected under the Fair Use doctrine contained in the Copyright Act of 1976. After deliberations, a jury found that Google was indeed protected by the fair use clause ad would not be liable for damages sought by Oracle.
Yet again, appeals ensued, this time to the U.S. Court of Appeals for the Federal Circuit in October 2016.
Google again received support from technologists in the case, with the Electronic Frontiers Foundation filing an Amicus Brief in support of Google's fair use of Java applications.
"Fair use creates space for copying of functional elements and their expression for purposes of efficiency,compatibility, or industry demands," the brief states in defense of the second district ruling. "There was ample evidence in this record to support the jury's finding of the functional nature of the Java APIs for such purposes."
The federal court rejected the arguments, reinstating the judgment in favor of Oracle.
"Because we conclude that Google's use of the Java API packages was not fair as a matter of law, we reverse the district court's decisions denying Oracle's motions for JMOL [judgment as a matter of law] and remand for a trial on damages. We also dismiss Google's cross-appeal," the court's opinion filed in March 2018 states plainly.
The court decided that the choice to copy code rather than write it on their own was a solution of expedience, not necessity. Thus, it was not protected by fair use and would have been subject to license payments to Oracle.
"Google's arguments are without merit," the court decided. "Google's use of the API packages is not transformative as a matter of law."
The decision explains that smartphones are not a viable "new context" for usage and that the copyrighted material was present in Android programs, unaltered.
"Because fair use is an affirmative defense to a claim of infringement, Google bears the burden to prove that the statutory factors weigh in its favor," the ruling explains in response to fair use claims. "We agree with Oracle that Google's copying was not fair use as a matter of law, we need not address Oracle's alternative arguments for a new trial."
Unsatisfied with this ruling, Google again filed an appeal to the U.S. Supreme Court to hear their case. In this filing, Google centered their case on whether copyright extends to APIs and on the fair use protection that jury trials found in their favor on.
"Since the earliest days of software development, developers have used interfaces to access essential tools for building new computer programs," Google argued in its appeal filed in January 2019. "Contravening that long-standing practice, the Federal Circuit in this case held both that a software interface is copyrightable and that petitioner's use of a software interface in a new computer program cannot constitute fair use as a matter of law."
"The Federal Circuit's widely criticized opinions-in an area in which that court has no specialized expertise-go much further, throwing a devastating one-two punch at the software industry," the appeal adds. "If allowed to stand, the Federal Circuit's approach will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms- a result that will undermine both competition and innovation."
According to Reuters, the highest court has asked for the opinion of the Trump administration as to whether it should hear Google's case.
It is worth noting that Google's initial appeal to the Supreme Court was denied and referred to a lower court after the Justice Department under President Barack Obama recommended against hearing it.
Considering the Trump administration's rather antagonistic relationship with tech giants, it will certainly be a storyline to keep an eye on. As much as $9 billion is riding on it.