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Institute for Legal Questions on Free and Open Source Software

Oracle v. Google - Google applies to Supreme Court

Author: Dipl.-Jur. Dennis G. Jansen, LL.M. (Berkeley)

In the lawsuit of Oracle America, Inc. v. Google Inc., Google last Monday applied to the Supreme Court for a review of the case. 

After the district court had decided that the Java API is not protected by copyright and the court of appeals had overruled the decision, leaving mostly a fair use defense for Google, the supreme court could now decide the issue of copyright protection for an application programming interface (API). Statistically, a decision by the Supreme Court is very unlikely. Out of about 10,000 cases a year, the justices only decide about 1,5 %. Of course this is a matter of significant importance, so the chances are higher. And the Supreme Court did hear the similar case of Lotus v. Borland almost 20 years ago, where it affirmed the court of appeals by an equally devided vote. In the Lotus case, protection was not awarded to the menus of a graphical user interface of a software program. This is a chance for a more unanimous decision on the copyright protection for computer interfaces. If the Supreme Court does not take the case, it will go back to the district court. The district court will then have to determine whether Google may claim a fair use defense for its use of parts of the Java API in Android's Dalvik Virtual Machine, which had already been an issue during the first district court trail.