Monday, January 12, 2015

Supreme Court wants U.S. government to weigh in on Google's petition to hear Oracle's Android-Java copyright case

The Supreme Court of the United States had put Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android-Java copyright case on its list of items to be discussed at the Friday (January 9) conference. The list of decisions, which was just released this morning, indicates that the top U.S. court has not made a decision yet. Instead, "[t]he Solicitor General is invited to file a brief in this case expressing the views of the United States."

In my two previous posts on this case, I explained why I don't consider Google's proposed distinction between allegedly non-copyrightable header and potentially-copyrightable non-header code to be workable, and noted that the software industry at large philosophically opposes Google's petition.

Only about 1 in 100 cert petitions succeeds. But Google apparently hopes that a well-orchestrated (rather than organic) amicus brief campaign (see 1, 2, 3, 4) will persuade the top U.S. court to hear the case.

The Supreme Court appears unconvinced for now that this case really needs to be heard (otherwise it could have decided based on the submissions it already has on file), but in light of Google's amicus brief campaign it apparently wants to double-check whether there really is a key issue at stake here for innovation. That's why the U.S. government is asked to chime in. Google is known to have excellent government relations, but I'm sure the Department of Justice is absolutely aware of the extent to which the software industry--which is so important to U.S. economic growth and employment--depends on legal certainty with respect to software IP protection. A decision to grant certiorari would create enormous uncertainty since Google wants to raise the general question of whether program code, no matter how creative, expressive, original or sizeable, can be devoid of copyright protection. It would be downright irresponsible for the U.S. government to support Google's cert petition because it would discourage investment in software development at least until the case is resolved and, if anything goes wrong, for a very long time. I'm sure the software industry at large, which is firmly on Oracle's side here, will convey that message to its government.

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