By Brent Kendall
Last year the Supreme Court pared back patent protections for
software. Now Google Inc. and other companies want the court to
limit how software makers can use copyrights to assert exclusive
rights over programs.
Google is asking the high court to intervene in a
copyright-infringement case brought by Oracle Corp. over copyrights
for the popular Java programming platform that software developers
use to create applications for computers and other devices.
The Supreme Court on Monday invited the Obama administration to
submit its views on whether the justices should hear Google's
appeal. The case presents the court with a chance to consider the
extent to which software innovations can be copied without
permission from the original developer.
Oracle acquired Java when it bought Sun Microsystems in 2010 and
sued Google the same year, alleging that Google's widely used
Android operating system for smartphones infringed copyrights on
the Java platform. It has sought more than $1 billion in
damages.
The battle has divided tech companies, and Google and Oracle
each allege the other's position would deal a substantial blow to
innovation. A trial judge barred Oracle from pressing certain
copyright claims against Google, then an appeals court last year
reversed that ruling and sided with Oracle.
Google said in court papers that if last year's ruling for
Oracle had been the law of the land 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 company declined to comment beyond its court briefs.
Oracle argues that Google's bid to limit copyrights would gut
legal protections that have been central to growth in the software
industry. "Google has not come up with any explanation for why
Oracle's code loses copyright protection but all other code still
retains protection," said Joshua Rosenkranz, a lawyer with Orrick,
Herrington & Sutcliffe who represents Oracle.
Several third parties, including Hewlett-Packard Co., Red Hat
Inc. and Yahoo Inc., are urging the Supreme Court to take up
Google's appeal. They say that if copyright is so broad as to cover
the basic interfaces of software products, then it will be more
difficult to make programs and products compatible with one
another.
Other companies such as Microsoft Corp. sided with Oracle when
the case was at a Washington-based federal appeals court, saying it
would be destabilizing to limit the elements of software that are
copyrightable.
Oracle's supporters say there are other legal doctrines, like
the concept of fair use, that allow follow-on innovators to copy in
some circumstances.
The fair-use issue looms over the Google case. A hung jury
couldn't reach a conclusion on whether Google's alleged copying was
fair. That question could be retried if the high court declines to
take the case.
The case centers on Oracle's allegations Google unlawfully
copied from 37 packages of pre-written Java programs, known as
application programming interfaces, that serve as shortcuts for
building common computer functions into other software
programs.
Oracle says Google should have paid for a license or written all
of its own code without using the shortcuts that Oracle spent years
and millions of dollars developing.
It likened Google's actions to "plagiarizing the topic sentence
of every paragraph of a blockbuster novel, as well as the chapter
and subchapter titles, and then paraphrasing the rest."
Google says it replicated only small bits of code necessary to
make certain shorthand programming commands work. It doesn't
dispute that computer code can be original, creative and entitled
to copyright protection.
But Google argues Oracle shouldn't be able to claim copyright on
basic computer commands in software. Doing so would be like a
typewriter maker claiming infringement against computer makers for
copying the well-known QWERTY keyboard layout, it says.
If the Supreme Court takes the case, it could set rules for
software copyrights beyond those it announced last June that
limited some software patents. In Alice Corp. v. CLS Bank, the
court ruled software makers couldn't take well-known concepts or
methods, such as hedging risk in financial transactions, place them
into a computer program and claim a patent. The decision already is
being used to knock out weak software patents.
Patents are designed to protect inventions, and generally last
for 20 years. Copyright protects authorship of original works, from
books and music to software and architecture. For works of
corporate authorship, the protection generally lasts 95 years.
Write to Brent Kendall at brent.kendall@wsj.com
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