Metaphors abound as US justices hear dispute between Google and Oracle

Oracle Corp.'s long legal battle against Alphabet Inc.-owned Google reached the U.S. Supreme Court on Wednesday during oral arguments in which both sides -- and the justices -- deployed metaphors to describe the complex case.

The Redwood Shores-based software giant is seeking nearly $9 billion in damages and asked the high court to affirm an appellate court ruling in its favor because Google used some of Oracle's Java programming code in the company's Android operating system.

Google won twice during federal court trials in San Francisco, as Keker, Van Nest & Peters LLP partner Robert A. Van Nest hauled out a filing cabinet to compare Java's application programming interface packages to a simple "system of organization."

During Wednesday's argument before the Supreme Court, justices were as eager as attorneys to make their own analogies.

At Wednesday's oral arguments in the patent dispute between Oracle and Google, Justice Elena Kagan compared Java to a grocery store, asking if a system that made it easy for customers to find items was a proper comparison. (New York Times News Service)

Justice Elena Kagan compared Java to a grocery store, asking if a system that made it easy for customers to find items was a proper comparison.

"Maybe, but this is worlds different," responded E. Joshua Rosenkranz, a partner with Orrick, Herrington & Sutcliffe LLP who represents Oracle and said the Java system was "extraordinarily intricate in a way that deserves copyright protection."

Accusing Google of copying the work of Sun Microsystems, the inventor of Java which subsequently was acquired by Oracle, Rosenkrantz preferred a different comparison.

"It's the equivalent of transferring a short story into a movie," he said, only without paying the story's author.

Thomas C. Goldstein, a partner with Goldstein & Russell P.C. who argued for Google, said the company transformed "minimally creative" code designed for personal computers and adapted it for Android smartphones.

"We have a right to provide a certain functionality because there is only one way to do it," he said.

Chief Justice John G. Roberts Jr. challenged Goldstein with a less appealing analogy, comparing Google's engineers to safecrackers.

"There's a reason there is only one way to do it, and that's because Sun and Oracle's way was so successful in doing it," he said.

Several justices appeared skeptical of Google's argument the Java APIs could not be copyrighted, with Justice Neil M. Gorsuch saying Goldstein's emphasis on other arguments was "probably a wise move."

But with a few exceptions, such as Justice Stephen G. Breyer's apparent sympathy for Google's arguments, the court left few clues about which way they were leaning.

Pamela Samuelson, a professor at UC Berkeley School of Law, said some justices appeared receptive to the argument the Java code could not be copyrighted.

Others, she said, focused on Goldstein's argument that the U.S. Court of Appeals for the Federal Circuit used the wrong standard for reviewing a jury verdict that Google was protected under copyright law's fair use standard.

"It is essentially unheard of for a court of appeals to reverse a jury's finding of fair use under the Copyright Act," Google's lawyers argued in court papers. "The Federal Circuit found no legal error -- for example, in the jury instructions -- but nonetheless found no fair use as a matter of law."

Google's fair use argument was raised multiple times and two justices -- Gorsuch and Justice Samuel A. Alito Jr. -- mentioned the possibility of remanding the long-running case back to the U.S. Court of Appeals for the Federal Circuit.

"Why shouldn't we remand the case for review under a more deferential standard" to the jury's verdict in favor of fair use, Gorsuch asked.

While Google attorneys described the overturning of a jury's fair use verdict in a copyright case as extraordinary, Rosenkranz told Gorsuch the Mountain View-based company only found five such cases in a 30-year span.

J. Michael Keyes, a partner with Dorsey & Whitney LLP, said the apparent crosscurrents among the justices made the outcome "hard to forecast."

Michaelson also was uncertain, noting Google would need to find five votes on the eight-member court to overturn the Federal Circuit ruling. Google LLC v. Oracle America Inc., 18-956 (S. Ct., filed Jan. 25, 2019).

The Oracle-Google legal battle has lasted a decade with many twists and turns.

Oracle sued for copyright and patent infringement in 2010. U.S. District Judge William Alsup of San Francisco ruled elements of the Java programming language could not be copyrighted after Google defeated almost all claims in a jury trial.

The Federal Circuit revived the case in 2014, but Van Nest won a second trial two years later on fair use grounds for Google. Oracle successfully appealed that decision to the appellate court.

Justice Sonia M. Sotomayor asked Rosenkranz, Oracle's attorney, why the court should "upend what the industry has viewed as copyrightable elements."

Rosenkranz said "the sky hasn't fallen" since the Federal Circuit decision in Oracle's favor, adding there has been "an explosion of innovation" since then.

The Trump administration sided with Oracle, and Deputy Solicitor General Malcolm G. Stewart said the fair use issue is "fundamentally a legal question" that can be decided by a court.