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Although legal experts say a reversal of last year's Google vs. Oracle verdict is unlikely, they haven't written off the possibility. As the two tech giants head into appeals, Oracle will try to persuade a judicial panel that Google filched its Java programming language and that the language itself should be subject to copyright protections.
The case has created a fault line in Silicon Valley as companies split on whether universal access should supersede copyright protections. But the outcome also will affect consumers.
In last year's trial, a jury ruled that Google had infringed on Oracle's programming language. But Judge William Alsup reversed its ruling. Oracle is contesting his decision at the Federal Circuit Court of Appeals.
If Oracle succeeds, the Redwood Shores company could pass licensing costs on to consumers. It also could chill the software market, many computer scientists and fair-use advocates say. A slew of them filed a friend-of-the-court brief last week siding with Google. Attorney Julie Samuels, who led the team, painted a worst-case scenario: That we'd be stuck in a world with one type of computer.
Samuels and other attorneys pointed to programming languages like the C Standard Library that currently work on any operating system. If they were copyrighted, she argued, then most software innovations would have more limited reach and many projects wouldn't ever launch. Businesses that use cloud computing services would be limited to a single provider. And if a website or application shut down, users might lose access to their data, because copyright protections would prevent engineers from building a compatible program.
These experts also warned that a legal reversal might pass costs on to consumers. If Google suddenly had to pay licensing fees for any program using Java, consumers would end up paying.
"It's not rocket science," Villanova University associate professor Michael Risch said. "If your OS is infringing, then it's going to cost more, and someone has to pay for it."
But tech companies are split in their allegiances, and others support Oracle's claim that its Java programming interfaces should be granted the same protections as books or plays.
Oracle's lawyers used an elaborate pop-lit analogy to make that case in their opening brief. They compared Google to a rogue author ("Ann Droid") who procures an advance copy of a Harry Potter novel, steals the topic sentences of each paragraph and paraphrases the rest. A defense that this constituted fair use of the Potter novel would be as inappropriate for her as it was for Google, the lawyers contended. They said that since Google was late to the smartphone market, and desperate to conceive its own platform, its quick-fix solution was to crib Java.
"Copyright protects a short poem or even a Chinese menu or jingle," Oracle's attorney Joshua Rosenkranz wrote in the brief, adding that in this case, "the copied works were vastly more original, creative, and labor-intensive." He said that granting exceptions for knockoffs in the software industry would actually stymie innovation rather than enrich it. Had Sun Microsystems — which originally developed Java, and was acquired by Oracle in 2010 — known its language could be commandeered so easily, it never would have gone to market in the first place, Rosenkranz argued.
Members of the D.C.-based Business Software Alliance, which represents Apple, Adobe and Quest Software Inc., argue that copyright law is the only way to reward creativity. Without it, they say, engineers would have no incentive to keep making things.
Google and Oracle will present oral arguments at the Federal Circuit Court of Appeals this fall.