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Did Politics Influence the Solicitor General’s Support for Oracle in the Google Litigation?

· September 18, 2020

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When TikTok selected Oracle as its technology partner in response to President Trump’s executive order that the Chinese firm ByteDance divest its control of TikTok’s U.S. operations, there was widespread speculation in the press that the choice was motivated by the support Oracle’s Chairman and CEO have provided to President Trump. It was assumed that TikTok and Oracle hoped that Trump would approve the arrangement, even though it fell far short of the executive order, as political payback. The possibility of the Administration rewarding Oracle in the TikTok deal raises the question of whether politics influenced another recent governmental action favoring Oracle: the Solicitor General’s amicus briefs in support of Oracle in its long-running litigation with Google, now pending before the Supreme Court. 

When Google petitioned the Supreme Court to review the Federal Circuit’s reversal of the jury’s fair use verdict in favor of Google, the Court requested the SG’s views on whether it should grant cert. In September 2019, the SG advised against granting cert., arguing that the Federal Circuit had decided the case correctly. The SG’s brief reflected superficial analysis and internal contradictions, and it adopted Oracle’s facile comparison of Java programmers to “admirers” and “fans” of artistic works. Notwithstanding the SG’s recommendation against granting cert., the Court agreed to hear Google’s appeal. 

In February 2020, at the merits stage, the SG once again filed an amicus brief in support of Oracle. This brief contained serious flaws. It failed to discern the obvious differences between software interfaces, such as the Java declarations, and other computer code. It also rejected Google’s merger argument, although it acknowledged that the calls and the declarations were “created contemporaneously and specifically designed to work in tandem.” The SG brief suggested that questions of interoperability were better addressed by fair use than by merger, but then advocated an application of fair use so stringent that no interoperable product could ever be created.

Because of the widespread concerns about the politicization of the Department of Justice, it is fair to ask whether politics influenced the Solicitor General’s decision to side with Oracle. Perhaps the strongest argument against a politicized decision is that in an earlier phase of the litigation, during the Obama Administration, the Solicitor General also sided with Oracle. In 2014, the Federal Circuit reversed the district court’s holding that the Java interfaces copied by Google fell outside the scope of copyright protection. Google petitioned for Supreme Court review, and the Court requested the views of the Solicitor General. In a brief filed in 2015, the SG recommended against cert., arguing that the Federal Circuit had correctly ruled against Google. Thus, the Trump SG’s position in 2020 is consistent with the Obama SG’s position in 2015, suggesting no political influence. 

However, it is odd that an Administration that so proudly reverses the positions of the Obama Administration chose not to do so here. Moreover, the 2020 SG brief differed in an important respect from the 2015 SG brief. In 2015, the SG acknowledged that Google had raised “important concerns about the effects that enforcing [Oracle’s] copyright could have on software development.” Nonetheless, the SG argued that the case was not appropriate for cert. because the fair use issue had not yet been resolved, and that fair use was the more appropriate theory for considering the protectability of software interfaces in that it would “allow courts to consider the full range of competing equities” in each case. But in its 2020 brief, when discussing fair use, the SG minimized the effect that enforcing Oracle’s copyright would have on software development. It took this view even though Microsoft and IBM, which had not supported Google’s earlier petition, now endorse Google’s fair use position. Microsoft, for example, noted that the Federal Circuit’s overly-restrictive application of fair use would harm collaborative efforts in the software industry, which rely on the breathing room provided by fair use.

It is unfortunate that one must question the motives of the Solicitor General, the so-called “Tenth Supreme Court Justice.” But that is the result of the politicized times in which we live, and the befuddling positions advocated by the SG.

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