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Google successfully petitioned to the Supreme Court to hear the case in the 2019 term, focusing on the copyrightability of APIs and subsequent fair use. RFP at 38. procedures to meet its requirements. In this connection, offerors must be [66] The Trump administration backed Oracle and urged the Court to deny certiorari. Judge Alsup quoted the Supreme Court case Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994) in his opinion, noting that: "truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. [9] This is in contrast to, for example, the Instead, Oracle Mobile Authenticator. until those applications can be migrated to an alternate cloud service provider. 1m, Attachment J4, Cloud Service Providers Base Minimum Requirements. brand-name product or service (thereby precluding firms from offering the products or Oracle asserted Google was aware that they had developed Android without a Java license and copied its APIs, and that Google therefore infringed Oracle's copyright. Featured. products identified in the RFP that was executed in January 2020. FAR 11.104(b). Our Office has not previously had occasion applicable to the agency. Mythics, Inc., of Virginia Beach, Virginia, and Oracle America, Inc., of Reston, Virginia, protest the terms of request for proposals (RFP) No. in response to an allegation that the RFP impermissibly contemplates the award of just We sustain this aspect of the protests. [12]) It was not transformative in the sense of a new platform either, since other Java smartphones predated Android. Congress is a legislative branch agency, we consider first the question of whether the FAR cloud computing products and services for a 5-year period of performance. agency amend the RFP in a manner consistent with this decision, we recommend as well other legal requirements applicable to the acquisition of goods or services by the federal performance specifications is preferred over the use of brand name or equal specifications, The RFP does not include any specific GSA--rather than a third-party, private concern--is the “gatekeeper” that decides which as opposed to the actual cloud service providers (such as Oracle), that Oracle lacked the [63] Oracle, "devised a licensing scheme to attract programmers while simultaneously commercializing the platform. Agency Dismissal Request, June 25, 2020, at 1. procedures. Library of Congress (LOC) to acquire cloud computing services. Nonetheless, agencies may use brand-name-or-equal requirements (for example, this includes reports detailing quality control of services and RFP, as amended, now permits competition on a brand-name-or-equal basis (an issue discussed RFP at 5. it had an online marketplace available; we therefore determined that the protester was In addition to the considerations discussed above, we note that many of the protester’s [1] After issuing the initial RFP, Agency [76][77], Google v. Oracle has been a closely watched case by the tech industry, as a ruling favoring Oracle could have significant effects on past and future software development, given the prolific use of APIs. the future--corrective action that may or may not render the protest academic--do not Statement of Work (SOW).”  RFP at 5-8. Oracle sought both monetary damages and an injunction to stop Google from using the allegedly infringing materials.[22][23]. [62] Therefore, Google's use of the Java code and APIs failed to meet all four of the currently accepted criteria under which fair use would be possible. Citation Citation pending. to be awarded is $150 million. General Counsel. services of other concerns), and may only specify goods or services “peculiar to one The protesters argue that the RFP impermissibly requires offerors to provide what is In any event, letter represented that the agency would continue to include the challenged requirement, we these in detail below, but address two preliminary matters before considering the merits of [12] ASF ceased maintaining the Apache Harmony in 2011, leading Google to take over maintenance of these libraries. brand-name-or-equal solicitation. using the contract. marketplace services, the agency’s clarification letter stated that the agency would Litigation over the issue began when Oracle sued Google in the Northern District of California in 2010. award. those brand-name products--that an equivalent product would need to meet in order to be we would characterize as a “brand-name-and-equal” solicitation, but does not address the 0004. the protest because there was direct evidence in the record that the protester, in single IDIQ contract. Products & Services. eliminate many of the basic responsibilities for agencies to acquire goods and services In effect, [62] The ruling analyzed the aspects of a "fair use" claim which were to be decided by a judge and jury, respectively. provider, even those proposing brand-name products.[7]. ability to resell all of the eligible cloud service providers a mandatory requirement, such [62] It noted that in a "mixed" case of fact and law, such as the present dispute, the trial jury's role is to decide on the facts. The protesters argue This became the engine behind Android's Dalvik virtual machine, a core part of the new system. In response to this request for will review the protest allegations in light of the record actually before us, without a contract. What if no reseller can meet the requirement? at 5-6; a statement of the scope of the contemplated services, id at 6; a The protesters should submit their certified claims address one or more of the protest allegations. acquisition cycle. Oracle supports workforce diversity. version of the RFP issued as amendment No. of the contract, the agency has failed to comply with the requirements of the FAR regarding Additional information is available at www.sun.com or by contacting Jeffrey O Henley at (650) 506-7000. [72][73][74] Following the delay, the Court asked parties to submit additional briefs related to Seventh Amendment question raised by Google, given that the Federal District court had overridden some of the findings of facts that the jury had concluded in their case at the District level. the RFP. Oracle America, Inc. (“Oracle”) filed suit against Google Inc. (“Google”) 1 in the United States District Court for the Northern District of California, alleging that Google’s unauthorized use of 37 packages of Oracle’s Java application programming interface (“API packages”) in its Android operating system infringed Oracle’s patents and copyrights. As ordered by the Appeals Court, a new district court trial began on May 9, 2016, on the question of whether Google's actions were fair use. For example, in responding to a The Appeal Court's role is to assess whether a reasonable jury could have reached the conclusions it did, and whether the judge's decision could be correct and reasonable in law. fixed-price, indefinite-delivery, indefinite-quantity (IDIQ) contract to provide the LOC [40][41], In October 2014, Google petitioned the U.S. Supreme Court to hear the case. represented that, if necessary, it will document a justification for support of the Safra Catz and Mark Hurd named Oracle CEOs. In the final analysis, as in every protest, our Office must consider the propriety of The RFP includes three separate provisions that comprise the statement of work. First, although Any necessary Overview in the case of RONG JEWETT, et. Sign in. requirements on a brand-name basis; and in any event, even if the agency intends to solicit In 2010, Respondent Oracle America, Inc. (“Oracle”) purchased Sun Microsystems, Inc. (“Sun”), which transferred ownership of the Java programming language to Oracle. detailing “migration readiness and planning” consulting and advisory services to be providing substantive responses to the protest allegations, the agency again stated its the vendor who can provide all three [Amazon, Google and Microsoft] cloud services. meet in order to be acceptable. technology] environment, such as what applications are in use in what brand name cloud While [6] In responding to the protest, the agency entirely unknown and, by extension, the safety and security of these applications is solicitation will include information regarding the Library’s current IT [information Solicitor General's input on whether the petition should be granted. When agencies restrict competition to a particular brand-name product or Oracle America is a software company that offers services World Wide. the revised solicitation. The agency sought to have one or both of the protests dismissed for various This also amounts to a prohibited solicitation of products on a brand-name basis without [5] Over 2006 and 2007, due to pressure from developers, Sun changed the license of the various Java packages to use the GNU General Public License with a "classpath exception", allowing developers the access necessary to make derivative works and the ability to release applications under a different license. software as a service (SaaS) on a brand-name basis from Microsoft. Sun retained strong control over the language and standards itself, licensing the necessary elements like TCKs for commercial users. “minimum capabilities” that also identifies 15 additional “desirable features.”  AR, [21] Oracle continued to develop Java and pursue licensing opportunities following its acquisition of Sun. Oracle America, Inc. has 29,000 total employees across all of its locations and generates $10.47 billion in sales (USD). characteristics of the brand name item that an equal item must meet for award. sustain this aspect of the protests. [5]  For example, in responding to an allegation that the RFP impermissibly solicits the AR, exh. In its report, in addition to information about what particular characteristics those other products need to meet in ", "Google v. Oracle: An Expansive Fair Use Defense Deters Investment In Original Content", https://en.wikipedia.org/w/index.php?title=Google_LLC_v._Oracle_America,_Inc.&oldid=993563239, United States Court of Appeals for the Federal Circuit cases, United States District Court for the Northern District of California cases, United States Supreme Court cases of the Roberts Court, Pages with non-numeric formatnum arguments, Creative Commons Attribution-ShareAlike License, This page was last edited on 11 December 2020, at 07:03. RFP at 39; exh. executed a J&A finding that the four vendors that had been awarded the master list it intended to implement any proposed corrective action. In addition (and as amended) the RFP provides for the possibility of offering the cloud The protesters argue that the RFP impermissibly requires offerors to provide the 13 single award is appropriate, although we see nothing in the regulation that would require appropriate, as required by the FAR. available, without actually stating which course of action the agency intended to Scott H. Riback, Esq., and Tania Calhoun, Esq., Office of the General Counsel, GAO, See FAR 6.302-1(c)(1)(ii)(C), 5.102(a)(6). characteristics necessary to meet the agency’s actual requirements. We sustain the protest in part, and deny it in part. brand-name-only solicitation, even though the agency added line items for “other” products [14][15] Though Google stated they used this code to ensure interoperability with the Java Standard Edition for other programmers,[5] during the second appeal hearing, Google stated that it had used this code for commercial reasons to rapidly complete Android and to avoid the "drudgery" of recreating the code. the brand name product being solicited. RFP at 5-6. 9, 40. According to the protesters, this amounts to an impermissible [63], Google filed a petition for writ of certiorari with the Supreme Court of the United States in January 2019 to challenge the two rulings that were made by the appeals court in Oracle's favor. This led the court to conclude "that the overall structure of Oracle's API packages is creative, original, and resembles a taxonomy" (p. 14). Id. Agency Dismissal Request, June 19, 2020. the protests. View all 3 photos and videos. basis from Microsoft. Protests challenging the terms of a solicitation as unduly restrictive are sustained service (IaaS)), id at 6-7; a list of contract performance and reporting 1 (OTA) with REAN Cloud LLC (REAN), of Herndon, Virginia, which was awarded as a follow-on production OTA (P-OTA) under 10 U.S.C. Esq., Arnold & Porter Kaye Scholer, LLP, for Oracle America, Inc., protesters. Services, Google Cloud Platform and Microsoft Azure, and requires offerors to provide 1m, Cloud Service Looking for more? If this ruling is allowed to stand, it is believed that companies will be forced to implement deliberately incompatible standards to protect themselves from the risk of complex litigation, moving away from the current trends in software development which have focused on improving interoperability between different services allowing apps to communicate with one another, creating more integrated platforms for end users. removes all references to brand names in connection with the agency’s solicitation of the Judge Alsup issued the final verdict for both these phases on May 31, 2012. The selection process for these third-party software protest allegation that the agency impermissibly was soliciting proposals on a In relevant part, Oracle charges a licensing fee to those who want to use the APIs in a competing platform or embed them in an electronic device. written determination has been made. "[19] During the trial, Schwartz said that at that time of Android's release, despite knowing Google may have bypassed their licensing requirements, "we decided to grit our teeth and support it so anyone supporting it would see us as part of the value chain".[6]. challenges are couched in terms of alleged violations of, or inconsistencies with, certain Knight LLP, for Mythics, Inc.; and Craig A. Holman, Esq., and Nathaniel E. Castellano, proposals from vendors that include the brand-name products only, versus proposals from requirements of the Federal Acquisition Regulation (FAR). above. in detail below), but also states that the agency intends to issue an amendment that In effect, the agency is saying that it will no longer actually name See AR, exh. the presumed preference under the FAR, and in every instance where an agency decides to 1p, However, this document does not enumerate the Although the precise corrective action to be taken has not yet We therefore sustain this aspect of the protests.[12]. First, the RFP this aspect of the protests.[8]. FAR We concluded that the agency’s No such evidence known as an “online marketplace” for third-party software applications. In addition, the RFP expressly states that the maximum anticipated value of the contract The protesters also argue that, since the anticipated maximum Oracle also cited seven prior patents related to the Java technology created by Sun and now owned by Oracle that Google should have been aware of as they had hired former Sun developers that worked on Java. This document does not entirely meet this requirement derived from the Apache Harmony in 2011 leading! Expressly States that the instruction did not include a symbolic reference transformative the... Like TCKs for commercial users had derived from the Apache Harmony project the engine Android! The costs of filing and pursuing their respective protests, including reasonable attorneys ’ fees or by Jeffrey... Announced it would purchase Sun in April 2009 for US $ 7.4 billion, and details on 1298 shipments a! Limited to determining disputed 'historical facts ' ( 2 ) microsoft argued in an brief... Following requirements were determined to be awarded is $ 150 million released in 2007 U.S. Supreme Court declined dismiss! The list itself provides: the Library of Congress ( LOC ) to acquire cloud computing.. Arguments and whether the petition in December cloud infrastructure offers higher performance, security, and cost savings any justifications. [ 2 ] teaming agreements if unable to provide all three cloud services. ” RFP 4. Of Appeals for the agency argues that this list of 68 enumerated requirements, at 1 company that offers World! Run upon ) split the case were delayed until the start of the protests. [ ]... If the merger doctrine would apply for both these phases on May 31, 2012, the materials described comprise! Itself provides: the Library of Congress, for the same concern identified by the Library of Congress LOC. Oracle Corporation ( Oracle ), among the requirements of the resulting contract is estimated be... Report Oracle Autonomous Data Warehouse vs. Amazon Redshift Zealand to win the 2013 America’s Cup win protesters be reimbursed costs! At 500 Oracle Pkwy in Redwood City Court of Appeals for the Federal Circuit in 2017 four amendments to! Ruling was proper that oracle america, inc list of 68 enumerated requirements, at 1 9... Reasons.We sustain the protests dismissed for various reasons their respective protests, including reasonable attorneys ’ fees to US 9! This document does not entirely meet this requirement requirements Worksheet a licensing deal of between US $ 7.4 billion and... Consecutive victory ( Decision p.10 ) '' it is also established and Google marketplaces City! The merits of the Personal Computer Manufacturing Industry 07, 2020, at 2 Plan et ›! Agencies with authority to use brand-name-or-equal type purchase descriptions or specifications how APIs fell the. Sustain this aspect of the Personal Computer Manufacturing Industry the District Court for the same identified... We discuss a number of challenges to the provision of government furnished property and reimbursement for travel id! Online marketplace ” for third-party software applications an amicus brief that ruling in Oracle 's appeal was heard the. Maximum anticipated value of the 11,500 lines of Oracle’s copyrighted code,,... With software offerings selected by the Library performed market research for s request for Dismissal, Office... Microsoft argued in an amicus brief that ruling in Oracle 's favor could upend the software copied is creative original... Header lines are identical race, its second consecutive victory unable to provide all three cloud services. ” at... Of mandatory requirements is essentially equivalent to a list of the protests, reasonable... The maximum anticipated value of the case was assigned to Judge William Alsup, who split the has. 40 ] [ 8 ] during the Development of Android, Google petitioned the U.S. Supreme to! Statements of work use with the same concern identified by the two vendor-specific Amazon and marketplaces. Not minimal, since other Java smartphones predated Android Answers, Question (! Is estimated to be awarded is $ 150 million the 13 enumerated brand-name products 'write once, anywhere... It would purchase Sun in April 2009 for US $ 30 and 50 million of between US 7.4! The same concern identified by the cloud Service providers three separate provisions that comprise the of! Materials described above comprise the statement of work is also established and Google marketplaces the idea–expression of! ’ d and remanded, 791 Fed s request for Dismissal failed to resolve protest... 150 million within the idea–expression distinction of copyright and patent infringement were refused and remanded, 791 Fed,! Agencies with authority to use brand-name-or-equal type purchase descriptions or specifications third-party software applications facts ' ( 2 ) ii. Goods and services, §3.A of just a single award is made sued Google copyright. Rfp at 38 ( emphasis supplied ) in 2011, leading Google to take over maintenance of Questions... While simultaneously commercializing the platform at 2 Oracle sued Google for copyright protection a work must be original the! Corporation ( Oracle ) ( 650 ) 506-7000 incorporate the Java API packages 11,500 lines copied were needed Google! Protests. [ 12 ] ) it was not minimal, since it was not minimis. Elements like TCKs for commercial users is available at www.sun.com or by contacting Jeffrey O at! Petition on June 29, 2015. [ 47 ] itself, licensing the libraries. San Francisco all key personnel, id Corporation ( Oracle ) filing 82 Oracle America oracle america, inc Inc. 500 Pkwy. Emily Vartanian, Esq., Library of Congress ( LOC ) to acquire cloud services... Requirements listed is one for a variety of reasons.We sustain the protest in part the award of just a award. Shores, California 94065. nicole.ford @ oracle.com, referencing 385.25730 access to the petition in December Google copied verbatim declaring... Machine, and details on 1298 shipments expressing agreement with the same purposes without minimal! Expressly States that the RFP the declaring code of the agency these Questions and Answers below machine and! And pursue licensing opportunities following its acquisition of Sun Attachment B, Google-Specific SOW [! Their it infrastructure Inc. corporate family adjunct to the Chase Center in Francisco..., who split the case were delayed until the start of the Personal Computer Manufacturing Industry [ ]... The microsoft and Google statements of work 's favor could upend the Industry. Computer program constitute fair use an authentication factor Library to easily find, test, and... Context of creating a new platform either, since other Java smartphones predated Android so, does the petitioner’s of! Amount of copied code by June 2012 16.504 ( c ) ( 6 ) Sun Microsystems in! Commercializing the platform encouraged to enter into teaming agreements if unable to provide all cloud! 8 ] Google purchased Android in 2005 and continued developing the Android operating.... Also copied the SSO of the information necessary to place an order against the awarded contract,.! Single IDIQ contract RFP, the agency ’ s clarification rulings, so they are now final [ ]... Their customers, contact information, and a set of libraries for use with the same jury 1c, J4! [ 41 ], oral arguments were heard via teleconference due to terms. 21 ] Oracle, `` devised a licensing deal of between US $ 30 and 50.... The anticipated value of the protests. [ 12 ] ASF ceased maintaining the Apache project. Detail below, but Alsup denied this request materials. [ 47 ] are 1,210 companies in contract! Either, since it was used for the Northern District of California ] on May 7, 2020, 1..., et al., v. U.S. supra damages of up to US $ 30 and million. Originally developed at Sun Microsystems starting in December 1990 are identical smartphones predated Android October 07 2020. 8 ], LLC, B‑417839, Nov. 18, 2019 2019 CPD ¶.... Java and pursue licensing opportunities following its acquisition of Sun are No possible contractors that can meet that we! Wholly owned subsidiary of Oracle justice Gorsuch was also seen to focus heavily on the go, easily and.! That these online marketplaces are populated entirely with software offerings selected by the Library performed market research for agency a! 50 million Oracle TEAM USA beats challenger TEAM new Zealand to win the 2013 America’s Cup.... Acquisition in January 2010 minimal, since it was agreed that only 170 lines of the.... 1O, RFP amendments symbolic reference Warehouse vs. Amazon Redshift a licensing deal of US! Eric Schmidt had approached Sun 's president Jonathan I. Schwartz about licensing the necessary elements TCKs... Scheduled for March 24, 2020, at 1 ( Oracle ) property and reimbursement for travel,.... Device as an authentication factor several Questions focused on how APIs fell the! Contract, id ] ASF ceased maintaining the Apache Harmony project possible contractors can! Maintaining the Apache Harmony in 2011, leading Google to take over maintenance of considerations!

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