Supreme Court to hear landmark case that could shake up Silicon Valley
Google and Oracle finally bring their decade-long dispute over what software code should be free to the Supreme Court, but a key figure will be missing.
Google will defend itself against Oracle’s charge that it stole code to build its Android operating system before the Supreme Court on Wednesday — and Ruth Bader Ginsburg’s absence may be pivotal in a ruling that could shake up Silicon Valley’s business model.
The case is one of the first to be heard by the now 8-member court and Ginsberg’s death likely means one less vote in Oracle’s favor, legal scholars say. It also creates the possibility the remaining justices could split and leave the tech world in limbo on a crucial issue — who controls code that underpins much of modern technology.
“We need a decisive majority opinion in this case to settle critical copyright issues going forward in the digital age, and, without Ginsburg, we may not get it,” said Ralph Oman, the former register of copyrights under Presidents Ronald Reagan and George H.W. Bush.
The Google-Oracle case is perhaps the most consequential copyright suit to reach the court in decades and several lawyers note that Ginsburg was one of the court’s more predictable votes on intellectual property law. Legal experts say Ginsburg’s past decisions put her regularly on the side of property owners — in this case, Oracle.
The fight centers around roughly 11,000 lines of software code that Google used to develop its Android mobile operating system — the platform that helped Google become the dominant player in the global smartphone market. Oracle argues the code — which it acquired from Sun Microsystems — is copyright protected and must be licensed. But Google says such code is broadly used by software developers and therefore exempt under existing copyright law.
Ginsburg developed a reputation on the court for often siding with copyright holders, a track record that suggests to many she would have sympathized with Oracle’s position. Ginsburg authored majority opinions in several copyright cases over the years, including the 2003 ruling in Eldred v. Ashcroft, which upheld a law that extended copyright protections by an additional 20 years.
“She almost certainly would have sided with Oracle against Google’s brazen copying, and her legal conclusions, tethered to her powerful intellect, could have persuaded her colleagues to follow her lead,” said Oman, who now teaches at George Washington University Law School and filed amicus briefs on behalf of Oracle.
On a practical level, Ginsburg’s death creates the potential for an even split among the remaining justices. That would mean the case could either be re-argued after a ninth justice is confirmed or that the federal circuit court’s ruling in favor of Oracle would stand.