At the centre of the row are APIs which every programmer knows are impossible to copyright, but it is a fact which has not occurred to any non-programming judge, the US government and Oracle which hopes to make billions if it wins.
Google is having its last crack at convincing the US Supreme Court that APIs are not subject to copyright. If it fails then copyright trolls will launch attacks on every major piece of software demanding money with menaces.
The high court then asked the Obama administration in January for its opinion on whether it should take the case because the federal government has a strong interest.
According to Google, an Oracle victory would obstruct “an enormous amount of innovation” because software developers would not be able to freely build on each other’s work. But Oracle says effective copyright protection is the key to software innovation.
U.S. Solicitor General Donald Verrilli said Google’s argument that the code is not entitled to copyright protection lacks merit and did not need to be reviewed by the Supreme Court.
Verrilli added that Google had raised important concerns about the effect that enforcement of Oracle’s copyright could have on software development, but said those issues could be addressed via further proceedings on Google’s separate “fair use” defence in San Francisco federal court.
The Supremes justices generally give greater weight to what a solicitor general says than other third parties that take a side in a case. This influence has caused the solicitor general to be dubbed the “10th justice.”
The Supreme Court is expected to decide whether to hear the case by the end of its term in June.
Oracle said it was “pleased” with the recommendation, which “affirms the importance of copyright protection as an incentive for software innovation.”