A man with the pro-life organization Bound4Life raises his hands in prayer outside of the U.S. Supreme Court on October 5, 2020 in Washington, DC. With 8 justices currently on the bench, the Supreme Court begins a new term on Monday.
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The political spotlight is shining brightly on the Supreme Court as the Senate weighs the nomination of President Donald Trump’s nominee, Judge Amy Coney Barrett, but on Wednesday, the court will be all business.
Three giants of industry — Google, Oracle and Ford — will press their cases before the justices in a pair of disputes that are expected to have broad impacts on American businesses and consumers. Decisions are expected by the end of June.
The arguments come in the first week of the court’s 2020 term and will be heard virtually as a result of the Covid-19 pandemic. They are among the first to be argued since the Sept. 18 death of Justice Ruth Bader Ginsburg, a liberal and perhaps the court’s most worker-friendly jurist.
Google v. Oracle
First up will be Google v. Oracle, a potentially $9 billion copyright case that’s been a decade in the making, including a several month delay after the Supreme Court pushed the case off the docket last term as a result of the pandemic.
The case has to do with code that Google used to create its popular Android mobile operating system, which Oracle claims Google stole. Google says the code should not be subject to copyright protection in the first place, citing the Copyright Act’s exception for fair use.
In dispute are 11,500 lines of code originally written by Sun Microsystems for its Java application programming interface. Oracle purchased Sun in 2010 and brought this suit shortly after.
The dispute is somewhat obscure, as it involves competing arguments over whether the code that Google used was creative in nature or merely technical.
Essential to Google’s claim, for instance, is its argument that the code it used is analogous to a QWERTY keyboard — helpful for making something creative, but not in itself a kind of original expression. On the other hand, Oracle says its code is “like the chapter headings and topic sentences of an elaborate literary work.”
The case has already pingponged around the lower courts, with Google notching two victories in a federal district court in California and two defeats before the specialized U.S. Court of Appeals for the Federal Circuit. If the court, missing Ginsburg, deadlocks 4-4, the appeals court decision will stand.
The case has attracted a great deal of attention, and some big names in business and technology and some start-ups have warned that the appeals court decision threatens future innovation.
Microsoft, which wrote a brief in support of Google, said the appeals court’s decision “elevates functional code to the same level of copyright protection as the creative expression in a novel” and “threatens modern paradigms of software development.”
On the other hand, the Trump administration, via the Department of Justice, has weighed in on the side of Oracle, noting that Google competitors Apple and Microsoft were able to create mobile operating systems without using Oracle’s code.
The case has also drawn some interest outside of the tech sphere.
The American Library Association told the justices in a brief siding with Google that new restrictions on fair use could interfere with research and learning tools, including those used for virtual classrooms and in the digitization of print materials for people with disabilities.
Siding with Oracle, the News Media Alliance, which represents thousands of media organizations, wrote that it identified with the software maker’s arguments.
Its members often create “valuable content that a third party then incorporates in a larger, highly valuable commercial product claiming that this act is ‘transformative,’ even though it has not altered or built upon the original news content,” the alliance wrote.
Ford fends off liability suits
After Google v. Oracle, the justices will turn to a pair of consolidated cases in which Ford is fending off liability suits brought by individuals who say they were harmed by defects in Ford vehicles.
Just as in the first case of the day, the Ford cases could have implications far beyond their immediate facts, stretching from state efforts to hold companies liable for abuses linked to the U.S. opioid epidemic to a consumer’s legal options if they get injured by an exploding toaster.
The cases involve Markkaya Jean Gullett, a Montana resident who died in 2015 after an accident in her Ford Explorer, and Adam Bandemer, a Minnesota resident, who claims he suffered a severe brain injury after the air bag in his 1994 Crown Victoria failed to deploy in an accident.
Bandemer and a representative for Gullett sued Ford in state courts. In response, Ford said it could not be sued in Montana or Minnesota because the Michigan-based company didn’t make or sell the cars in question in either state and didn’t have any connection to the states that was directly related to the injuries. The supreme courts of both states rejected that argument.
The case, which features high-profile attorneys on both sides, has divided the business community and united an unusual coalition of states across the political spectrum.
For those opposing Ford, a main concern is that large manufacturers will be able to effectively evade liability while smaller businesses end up holding the bag.
“In a lot of states they actually have immunity for sellers, but if you can’t get jurisdiction over the manufacturer, that immunity goes away,” said Deepak Gupta, who will be presenting the argument against Ford.
“I think people often think about these access-to-justice cases and tort reform cases as pitting the little guy against business, but in this case it’s more complicated,” Gupta said in an interview.
Thirty-nine states and the District of Columbia, including perennial antagonists at the court like Texas and California, submitted a brief saying that a win for Ford could allow opioid manufacturers to skirt liability, “shifting liability to local distributors and doctors.”
The National Association of Home Builders wrote that there was “perhaps a perception” that the business community was in favor of Ford’s position. “If so, that perception is misplaced,” the association wrote.
The NAHB wrote that Ford’s position “particularly helps manufacturers or designers of defective products, many of whom are now located abroad” but “harms other businesses — particularly those businesses that lie between consumers and initial manufacturers.”
On Ford’s side, the Chamber of Commerce has urged the Supreme Court to step in to stop a situation in which businesses have “no ability to predict where, and to what extent, they might be hauled into court.”
Calling the approach of Ford’s opponents “impermissibly sweeping,” the organization said it would impose “new and unwarranted burdens on businesses, the courts, and the federal system.”