Things got technical at the Supreme Court on Wednesday when judges heard arguments from Google and Oracle in a blockbuster copyright battle that has cast a spell on Silicon Valley for a decade.
The dispute concerns about 11,500 lines of code that Google used to create its popular Android mobile operating system and that have been replicated by the programming interface for Java applications developed by Sun Microsystems.
Oracle, which acquired Sun in 2010, soon sued Google on the grounds that Google's use of the code violated its property rights. On the other hand, Google stated that the code copied was purely functional and that its own engineers wrote all of Android's code which is considered creative and copyrighted.
After an hour and a half of arguing, Judge Stephen Breyer, who eventually read a code, seemed the only safe voice. Liberal justice seemed to lean towards Google.
Some of the other judges, including Chief Justice John Roberts, suggested that they were okay with Oracle's copyright claims.
Even so, they did not seem willing to vote in favor of Oracle, as computer leaders and Microsoft argued in legal briefs that it could turn the industry upside down.
Several of the court's conservatives, including Judges Brett Kavanaugh and Samuel Alito, noted that Google's allies had warned that "the sky will fall" if Oracle wins.
"We are told that if we agree to Oracle we will ruin the US tech industry," Roberts once said to Malcolm Stewart, a US Justice attorney who advocated Oracle.
But these comments were also full of skepticism. “I don't know the sky has fallen in the last five or six years,” Kavanaugh said, noting that Google lost its first appeals court case in 2014.
"I think the judges were really trying to determine whether or not that will actually be the case," said Brian Michalek, partner at the law firm Saul Ewing Arnstein & Lehr, in an interview after the arguments were finalized. "I felt a little skepticism and a little sensation."
Judge Neil Gorsuch also repeatedly questioned whether a lower court advocating Oracle adequately respected a jury's finding in favor of Google, suggesting that the Supreme Court might send the case back without a final decision.
The case was one of the first to be heard by the Supreme Court in its 2020 term beginning Monday, and one of the first to be heard since Judge Ruth Bader Ginsburg passed away last month. Based on her earlier writings, Ginsburg should side with Oracle on this matter.
The clashes were conducted by telephone and broadcast live to the public as a result of the Covid-19 pandemic.
The duel ideas of the Code in question have fueled much of the litigation. It's not just about the $ 9 billion Oracle owed, it's about copyright in the Internet age and what types of code should be protected.
Google's attorney Thomas Goldstein emphasized during the arguments that the company had written all the code that could be expressed differently than Oracle. But for some purposes the code has to be the same – "there are no substitutes."
"The long-established practice of reusing software interfaces is of crucial importance for modern software development," argued Goldstein. "Since there is only one way, there is no copyright protection."
Oracle attorney Joshua Rosenkranz countered that Google had options that did not use Oracle's code, albeit expensive ones.
"The copyright law doesn't give Google a passport just because it would be expensive to recreate our expression," he said.
Justice Sonia Sotomayor, who asked tough questions on both sides, told Goldstein that Apple "spent the billions of dollars it needed".
"I suppose you could have," she said.
A major difference that the judges sought to resolve was the difference between two different types of code, known as the declaration of code and the implementation of code.
Google used Oracle's declaring code, which has been compared to a QWERTY keyboard, but not the implementation code, which is more like a word processor.
Oracle prefers a different analogy, saying that its declaring code is more like the chapter headings and subject sentences of a novel.
For their part, the judges tried a number of new comparisons.
Roberts, for example, asked Goldstein if someone would be allowed to copy the headings used in his legal records when they swapped out the rest of the text. With a similar skepticism towards Rosenkranz, he pointed out that someone who opens a restaurant will have "starters, starters and desserts first" on the menu.
"You shouldn't have to worry if this organization is copyrighted," said Roberts. "Why isn't Google saying exactly that here?"
Breyer seemed to agree with the keyboard analogy, warning that allowing a copyright would be devastating.
"In the beginning you didn't have to have a QWERTY keyboard," he said. "But if you gave someone a copyright for it now, they would control all the typewriters."
Google won twice in California district courts, but both decisions were later overturned by the U.S. Federal Circuit Court of Appeals. The Supreme Court should hear the case in its final term before it was postponed along with a number of other cases as a result of the pandemic.
In a post-argument statement, Oracle's general counsel Dorian Daley said she was "extremely pleased" with how things went.
Kent Walker, Google's senior vice president of global affairs, said in a post on Twitter that "the argument confirms the importance of the legal rules that make it possible and we look forward to the court's decision."
A decision is expected by the end of June. The case is officially known as Google v Oracle America, No. 18-956.