(Reuters) - The billion-dollar copyright war between Google and Oracle has arrived at the U.S. Supreme Court. Sort of.
On Friday, Google filed a request for an extension of its deadline to petition for review of the Federal U.S. Circuit Court of Appeals ruling (886 F.3d 1179) last March that Google did not make fair use of Oracle America’s Java code in creating the Android platform. The Federal Circuit revived Oracle’s copyright claim after a San Francisco federal jury sided with Google and its fair use defense and U.S. District Judge William Alsup of San Francisco rejected Oracle’s motion for judgment as a matter of law. Google’s Supreme Court filing suggested that the company’s new lawyers at Williams & Connolly intend not only to challenge the Federal Circuit’s analysis of fair use of open-source computer code but also the appellate court’s 2014 ruling (750 F.3d 1339) that Oracle’s Java interfaces for specific functions deserve copyright protection at all. “Those opinions throw a devastating one-two punch at the computer software industry,” Google said in its request for a deadline extension. “If allowed to stand, the Federal Circuit’s approach will upend the longstanding expectation of software developers that they are free to use existing computer software interfaces to build new programs.” Google said it needs extra time to file its actual petition for the Supreme Court to hear the case because its new counsel of record, W&C’s Kannon Shanmugam, is prepping for three oral arguments before the justices in the next few months. The company, which was represented at the Federal Circuit by King & Spalding and Keker Van Nest & Peters, asked the justices to push back the deadline from Nov. 26 to Jan. 25. The Supreme Court usually grants these time extensions as a matter of course. A date at the Supreme Court would be a fitting twist in the epic litigation between Google and Oracle. As you may recall, the case began with Oracle’s patent and copyright claims back in 2010 and was first tried before a jury in 2012. That first jury found no patent infringement but held that when Google developed its Android platform, it violated Oracle’s copyright in three dozen Java “packages,” or folders of programs declaring programming methods and directing coders on their use. Judge Alsup overruled the jury, holding that although Congress has extended copyright protections to computer programs, the Java packages fell into an exception for procedures, processes, systems and methods of operation. The Federal Circuit, as I mentioned, brought Oracle’s copyright claims back to life in 2014. Google sought Supreme Court review of that decision, which remanded the case back to Judge Alsup for a trial on Google’s fair use defense, but the Supreme Court denied Google’s petition in 2015. In the ensuing trial, post-trial and appellate litigation over Google’s fair use defense, in which Google contended that its independent implementation of declarations within Java packages was permissible, Google continued to argue that the Java directing code is not properly covered by copyright law. Even in its petition for en banc rehearing, after a three-judge Federal Circuit panel rejected its fair use arguments, Google pressed its copyrightability argument. You might think the company would be dissuaded from pushing for Supreme Court review on that issue, considering that the Supreme Court previously declined to hear Google’s arguments that the Federal Circuit botched the copyrightability analysis. The Justice Department, moreover, has taken the position that the Federal Circuit was right about copyright protection for Java declarations. In an amicus brief (2015 WL 2457656) requested by the justices as they considered Google’s 2015 petition, the solicitor general’s office said declaring code can be copyrightable despite the exception for systems and methods. But Google can turn that SG’s brief to its favor when it files its actual certiorari petition. The Justice Department conceded in the 2015 brief that Google had asserted important arguments about the tension between encouraging innovation and exercising monopoly power via licensing demands rooted in open-source code. The SG’s office said Google’s concerns were best addressed in litigation testing its fair use defense, rather than an interlocutory appeal before the fair use case played out in the lower courts. Now, of course, that fair use dispute has led to another controversial Federal Circuit ruling, giving Google an opportunity to urge the justices to take up both big questions – copyrightability and fair use of open-source declaration code – in a single swoop. I emailed Oracle’s lead counsel at the Federal Circuit, E. Joshua Rosenkranz of Orrick Herrington & Sutcliffe, but didn’t hear back.