Lawyers for Google LLC have asked the U.S. Supreme Court to take up an appeal of its loss to Oracle in a blockbuster copyright case involving the software underpinning the Android mobile operating system.
Google’s petition for certiorari, filed with the court Thursday, claims that the U.S. Court of Appeals for the Federal Circuit erred by finding that no reasonable jury could have found Google’s unlicensed copying of Oracle-owned software interfaces in Android was a fair use under copyright law.
The Federal Circuit last March reversed the fair use finding of a jury trial that was overseen by U.S. District Judge William Alsup of the Northern District of California, a little less than four years after the appellate court reversed Alsup’s finding that the software interfaces weren’t copyrightable following an earlier trial.
Google’s appellate team, led by Kannon Shanmugam of Williams & Connolly, wrote in Thursday’s brief that the Federal Circuit’s two rulings amounted to “a devastating one-two punch at the software industry.”
“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,” wrote Google’s lawyers, which also included Goldstein & Russell’s Thomas Goldstein and Robert Van Nest of Keker, Van Nest & Peters, among others. “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,” the lawyers continued.
In a company blog post Thursday, Google SVP of Global Affairs and Chief Legal Officer Kent Walker wrote that the U.S. Constitution “authorized copyrights to ‘promote the progress of science and useful arts,’ not to impede creativity or promote lock-in of software platforms.”
“We support software developers’ ability to develop the applications we all have come to use every day, and we hope that the Supreme Court will give this case the serious and careful consideration it deserves,” Walker wrote.
In a statement provided by an Oracle representative, Dorian Daley, the company’s executive vice president, general counsel, and secretary, said that Google’s brief provides “a rehash of arguments that have already been thoughtfully and thoroughly discredited.”
“The fabricated concern about innovation hides Google’s true concern: that it be allowed the unfettered ability to copy the original and valuable work of others for substantial financial gain,” Daley said.