Google vs Oracle Supreme Court Arguments

J. Michael Keyes is a partner at the international law firm Dorsey & Whitney. Keyes is an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He has tried several cases in federal courts across the United States. He’s been following the Google vs Oracle case through the courts and listened to the argument this morning.

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"Today, the U.S. Supreme Court heard oral arguments in one of the most significant copyright cases to reach the Court.  The case has potentially huge implications on copyright protection for software, fair use, and the sanctity of jury verdicts.  Both parties’ counsel were peppered with questions that focussed primarily on copyright protection for software, the idea/expression merger, and whether Google’s use was “fair," Keyes says.

"Several of the justices’ questions seemed skeptical of Google’s position and troubled by Google’s use of Oracle’s software code.  justice Roberts said just because you “crack the safe” doesn’t give you the right to take the money. While Justice Alito was worried that if the Court adopted Google’s position it would effectively end copyright protection for software.  Justice Sotomayor appeared to express her skepticism of Google’s position in pretty blunt terms:  “What gives you the right to use their original work?”  Justices Gorsuch and Kagan seemed troubled that other tech giants like Apple and Microsoft have created successful mobile platforms without copying Java—why should the Court give Google a pass?" Keyes says.

"Oracle’s counsel was also met with a fair amount of questions as to whether its “declaring code” was copyrightable," Keyes says.

"Surprisingly, there was not a big emphasis or focus on the federal circuit’s disruption of the jury verdict on fair use.  Justice Alito did seem to question whether the lower court applied the wrong standard.  As did Justice Gorsuch.  Given that there is not a single instance of a federal appeals court overturning a jury verdict on fair use,  it seemed like this issue would have received more “air time.” Keyes says.