Oracle v. Google: Analyzing the Oral Argument and Outlook (RECORDING)
Cases before U.S. Supreme Court are notoriously difficult to handicap, even after oral argument, and even when the issues are more clear-cut than they are in Oracle v. Google, the long-running software copyright dispute the Court heard on Oct 7. The eight Justices reached for low-tech analogies, like organizing grocery displays and robbing a safe, in their attempt to characterize the facts of the case and to find the answer to the two questions before them: 1/whether software interfaces are copyrightable and 2/ whether, as a jury found, Google’s use of Java interfaces in the context of creating the new Android computer program constitutes fair use. Adding to the uncertainty is the Justices’ late-in-the-game request for supplemental briefing on a procedural issue on appellate deference. Indeed, Justices Neil Gorsuch and Samuel Alito spent much of their questioning on Wednesday focusing on whether it was appropriate for the Federal Circuit to overrule a prior jury decision in favor of Google.
Our panelists -- an in-house counsel at a major software company, a leading professor of copyright who wrote an amicus brief for Google, and a litigator for Oracle who is co-counsel in the case -- will discuss any surprises in the Justices' questioning or in the counsels' replies, highlight the most memorable interchanges, read some tea leaves, and discuss possible outcomes and their impact.
Lesley Boveri is senior IP counsel at SAP, with responsibility for IP counseling for software development and operations, primarily in the areas of open source, anti-piracy, copyright, and IP strategy. Before becoming an attorney, she worked in the software industry as a programmer, analyst, and quality assurance manager.
Kirkland & Ellis, LLP
Joshua focuses his practice on appellate and trial court litigation, intellectual property counseling and strategic portfolio management, as well as regulatory and legislative policy. This “exceptional” and “creative” (Chambers), “Top Attorney” (Law360), and “big-picture thought leader” (WTR) litigates copyright, patent, right of publicity, trademark, trade secret, and unfair competition cases—particularly complex cases and those of first impression—along with contract, licensing, and domain name disputes. In addition to maintaining a full-time litigation practice, Josh is a member of Kirkland’s Diversity & Inclusion Committee, and the Coordinator of its New York Kirkland Pride affinity group. He also is a frequent speaker and author on emerging trends in intellectual property, as well as an active member of the intellectual property bar, including serving as Vice Chair of IPO’s Copyright Law & Anti-Piracy Committee, and a former Vice Chair of its Software-Related Inventions Committee.
Harvard University Law School
Rebecca Tushnet is a professor of law at Harvard Law School who focuses on copyright. She clerked for Chief Judge Edward Becker of the Third Circuit and Associate Justice David Souter on the Supreme Court and practiced IP law at Debevoise & Plimpton before beginning teaching. She is well-known for her fair-use advocacy on behalf of works created by fans.