The Obama administration has been locked in internal wrangling over what position to take in high profile litigation between two American technology giants, Google and Oracle, according to multiple sources familiar with the discussions. It faces an end-of-May deadline to decide whether to take sides in a case before the U.S. Supreme Court that will have wide implications for the technology industry.
The case involves how much copyright protection should extend to the Java programing language. Oracle won a federal appeals court ruling last year that allows it to copyright parts of Java, while Google argues it should be free to use Java without paying a licensing fee.
Google, which used Java to design its Android smartphone operating system, appealed to the U.S. Supreme Court. The high court then asked the Obama administration in January for its opinion on whether it should take the case.
The nine justices request that U.S. Solicitor General Donald Verrilli, Jr., the government’s top lawyer before the Supreme Court, weigh in on about 20 cases a year in which the federal government has a strong interest. The justices generally give greater weight to what he or she says than other third parties that take a side in a case, an influence which has caused the solicitor general to be dubbed the “tenth justice.”
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 others’ work. But Oracle says it is effective copyright protection that’s the key to software innovation.
It is unclear what position the administration will ultimately take. Deliberations within the Obama administration have mirrored the larger debate in the technology world about how broadly copyright should apply to software, the sources said.
Charles Duan, a lawyer for interest group Public Knowledge, that backs Google in the case, said he met with officials at the Federal Trade Commission and the Department of Justice antitrust division to advance the view that Oracle is seeking a monopoly on software.
“They were very interested in the competition implications of the case,” Duan said of the antitrust regulators. An FTC representative declined to comment.
Another source briefed on the discussions said the solicitor general’s office has pushed back on pro-Google arguments. The debate is coming down to the wire as the solicitor general’s office, a division of the DOJ, usually files its opinions by the end of May to give the Supreme Court time to make a decision by the conclusion of its term at the end of June.
A Department of Justice spokeswoman declined to comment.
Google’s Android operating system is the world’s best-selling smartphone platform. Oracle sued Google in 2010, claiming that Google had improperly incorporated parts of Java into Android. Oracle is seeking roughly $1 billion on its copyright claims.
The case examined whether computer language that connects programs (known as application programing interfaces, or APIs) can be copyrighted.
A San Francisco federal judge decided that the Java APIs replicated by Google were not subject to copyright protection and were free for all to use. But the U.S. Court of Appeals for the Federal Circuit reversed that, saying it was bound to respect copyright protection for software “until either the Supreme Court or Congress tells us otherwise.”
Google has a close relationship with President Barack Obama’s administration, and executive chairman Eric Schmidt has long been a high profile supporter of the president’s. However, there is no indication that the internal debate on software copyright involves any issues beyond legal policy.
Legal teams from both Oracle and Google made separate presentations to government officials in March, a third source familiar with the meetings said. The company pitches attracted so much interest from different government agencies that they had to be moved to a larger conference room at the Department of Justice to accommodate all the lawyers, this source said.
Some of the administration’s technology advisers have been advocating the pro-Google position as well, the second source said. This week, the White House appointed Edward Felten as deputy U.S. Chief Technology Officer. Felten, a computer scientist, signed onto a legal brief last November urging the Supreme Court to hear Google’s appeal.
The White House did not respond to a request for comment. Representatives for Oracle and Google declined to comment.
Meanwhile the U.S. Copyright Office, a division of the Library of Congress, is known as being pro-copyright which could make it more likely to back Oracle, according to a lawyer for groups that support Google. The Copyright Office declined to comment.
Other technology companies, including Yahoo and Hewlett-Packard, filed legal briefs at the Supreme Court supporting Google, arguing that the Federal Circuit ruling “upset settled expectations about the scope of copyright law.”
Yet Oracle argued that the Supreme Court should decline the case because the Federal Circuit applied settled legal doctrine.
“Google’s argument — that the code lost all copyright protection because it became popular and Google wanted Android to be popular, too — would not fly for any other work,” Oracle’s attorneys wrote.