David Newhoff, Author at The Illusion of More

Google v. Oracle Part V: The Where Would You Be Without Us Defense

Not everyone agrees that copyright law has a natural-rights soul, but neither critics nor proponents dispute that copyright’s heart is to provide incentive for authors. Specifically in Google v. Oracle, the headlines most likely to seep into general awareness will boast one of two competing predictions regarding this incentive principle. Defenders of Google insist that if Oracle wins this case, the legal precedent will stifle an entire software industry that needs to copy code (as they did), while defenders of Oracle assert that a Google win could undermine the financial incentive to create.

Although predicting holistic market dynamics is admittedly a bit of a crapshoot, it seems far more reasonable to conclude that the core elements of Google’s arguments would cause significant cardiovascular harm to the incentive heart of copyright. And it would do so by insidiously promoting the company’s own monopolistic conduct as a social benefit. For example, I would draw readers’ attention to the PR message encoded in the following quote from Google’s brief to SCOTUS, filed on January 6^th …

“Early mobile phones were much less useful, in part because many manufacturers used their own proprietary ‘operating systems’—i.e., software that controls the phone—for which few useful applications were created. Google responded by creating Android, an ‘open source’ operating system that worked with almost any smartphone.”

Notice how that sounds like mobile was going nowhere until Google magnanimously “responded” to market demand? It’s meant to sound that way. Because it reinforces the general proposition that Google’s innovation is synonymous with innovation itself; and as a legal tactic, it is there to tee up Google’s fair use defense (addressed in my last post) that Android developers made a “transformative” use when they copied Oracle’s Java SE code without license.

Google appropriated the Java computer code for exactly the same purpose for which other mobile developers had licensed the software from Oracle. So not only does this fact undermine Google’s fair use argument, it also suggests that mobile was in fact not going nowhere in 2005. On the contrary, mobile was racing down the highway faster than Google could fully assemble its own vehicle, leading Google to conclude that it needed Java to catch up. I think we all remember that it was Apple that revolutionized the idea of what a cellphone could be, with inspiration from even earlier innovators like Blackberry, Palm, and Nokia.

Which Outcome Poses a Threat to Incentive?

Copyright skeptics have intermittently taken pot shots at the incentive premise with the refrain that “artists will still create without copyright.” And while I will not reiterate the many flaws in that particular bullet point, let us jump to the undeniable conclusion that major software developers will do no such thing. Neither Sun nor Oracle nor Google nor Apple nor any other company is going to invest thousands of costly hours into developing software without projecting a return on the investment, which must be predicated, at least in part, on the IP in the software itself.

That premise alone, without even addressing the more nuanced legal arguments in this case, suggests that a Google win would more likely have a deleterious effect on future software development. If the next start-up developer compares both the conduct and the legal arguments of the two giants in this fight, Google’s claim that it “needed” to appropriate code (which it did not need to do) in order to “revolutionize” mobile (which it did not actually achieve) should scare the hell out of that start-up developer. Because what happens when the start-up creates a breakthrough product for some other sector Google decides it wants to “revolutionize?”

One of the first questions an angel investor asks is how a new venture can protect itself against an industry giant “squashing them like a bug,” for the Shark Tank fans out there. And one of the best answers the founders can offer is that they own strong intellectual property. But if Google’s exceedingly broad rationale for outright copying is allowed to stand in this case, the precedent it will set is one in which the new venture no longer has that protection when it enters an arena full of 300lb gorillas.

If IP becomes meaningless as an incentive, industry consolidation will be exacerbated until we are left with one or two corporate leviathans with tentacles in every aspect of our lives. One need only glance at the winner-take-all paradigm of the digital age, which already forecloses entry into various markets, in order to envision how a finding for Google in this case could have a further chilling effect on competitive innovation.

By contrast, Oracle’s core argument that its code should have been licensed by Google is not only non-threatening to the start-up developer, it is almost certainly a model the start-up intends to use in the market. Copyright critics have a habit of pretending that licensing is tantamount to making works unavailable and/or a prelude to innovation-killing lawsuits. But there are few products that belie this rhetoric quite so demonstrably as Java.

Java is a developer’s platform—many have called it one of the most revolutionary ever created—and its licensing regimes were designed to foster innovation, sharing, and building upon prior works. Innovation is literally mandated by the various tiers of Java licenses—from free to commercial—but which Google refused because it rejected the condition that Android would have to be interoperable with the rest of Java. Google wanted a proprietary platform, but one that relied on a core element it did not develop.

The fact that the unlicensed use of Oracle’s code was intrinsic to Android attaining market dominance will not, I suspect, be overlooked by future developers and their prospective investors. So, it would seem counter-intuitive to accept the narrative that Google’s defenses in this case serve innovation writ large rather than its own exclusive and narrow interests. And if that doesn’t suffice, one could always ask whether Sun/Oracle licensing Java between 1995 and 2005 stifled innovation in the software industry. Just sayin’ I don’t think it did.

A Worn Out Refrain

Many creators and copyright owners in other media are all too familiar with Google’s attempts to disguise its business interests as a broad social benefit like “we rescued mobile.” For instance, the emphasis on “open source” in that line from their brief is there to color the picture of Google’s liberality toward the market, as if giving the Android platform away were not essential to its market-dominating intentions—and as if the ease of use for app developers were not a direct result of the code it copied from Oracle.

So, for all the noise Google makes about innovation and competition, Android is now the dominant mobile platform for three important reasons: 1) the company has nearly limitless capital to launch products quickly; 2) it used Oracle’s code in the platform to attract app developers and get to market fast; and 3) its massive advertising and data-mining revenue streams are best served by giving away its general market products for free. Google is very good at using free platforms to monetize other people’s work without license; but of course, its products are not really free, are they?

Android, like every other “free” tool in the Google portfolio comes at the cost of a semi-voluntary exchange for our personal information—up to and including tracking our movements, invading our privacy, and abusing our data, either by selling it to unscrupulous operators or by leveraging it to engage in anti-competitive practices. So when Google asks the rhetorical question in regard to this litigation, Where would we be without Android? The sensible response is: Wouldn’t it be nice to find out? But of course Google’s largesse does not want competitors in mobile any more than it does in, say, social video platforms.

Historically, Google’s rhetoric, promoting the message that “copyright stifles innovation,” functions as a smokescreen, which masks its own anti-competitive business practices—namely, that everyone else’s copyrights get in the way of their innovation. The same scenario plays out again in Oracle. Google copied someone else’s IP for its own commercial benefit and now uses litigation to weaken the law it decided to circumvent—and it did so for profit, not principle. Google’s legal arguments deserve to be addressed on the merits, but we should remember who we’re talking about when considering the big-picture narrative in the press and blogosphere.

PR is of course not unique to Google. All corporations weave such narratives. But just because GE brought “good things to life,” this does not mean we blindly accepted PCBs in the Hudson River, or assumed that some other company might not bring better things to life. Similarly, Google cannot be allowed to rest its case on the false premise that nobody was innovating (or would have innovated) in the mobile market until they came along. That simply was not, is not, true.

Thus, Google’s claim that it must prevail in Oracle in order to preserve a culture of appropriation that allegedly promotes development, fades in the light of empirical evidence. Without even weighing the copyright law details, Google’s overall message does not hold up against the now well-established narrative that the company behaves like a classic monopolist in every line of business it enters.

Google v. Oracle IV: Fair use & the difference between new and transformative.

Although it has been my intention to write about Google v. Oracle serially, addressing the legal questions in more or less in the order they are presented and weighed in a court opinion, it turns out today marks the end of Fair Use Week. (How I could have missed that in this otherwise sleepy news cycle is a mystery, I know.) But as Fair Use Week is still officially live, I am going to jump ahead in this post to respond to Google’s claim that its use of Oracle’s Java SE code in the development of the Android platform was a fair use.

We will assume for the sake of discussion that Google’s challenge to the copyrightability of Oracle’s code will not succeed because, absent an infringement, there is no reason to consider a fair use defense. On that note, it is worth mentioning that while it may be good legal strategy to present a fair use argument as a Plan B in a litigation, some fair use assertions are more demonstrably hail-Mary plays than others. And in this case, Google’s argument seems like a pretty wild pass all the way down the gridiron that should be knocked down by the fair use test.

Above all, Google’s fair use assertion under the first factor—arguing that its use of Oracle’s code was transformative—is yet another example of this tech giant in particular seeking to conflate the novelty of a product with the nature and purpose of transformativeness in fair use.

For quick review, transformativeness, in its earliest application, tilts toward a finding of fair use when a new creative expression is derived from the specific use at issue. Hence, the seminal case Campbell v. Acuff-Rose (1994), in which the Supreme Court unanimously held that 2 Live Crew’s use of the heart of the song “Oh, Pretty Woman” produced a new expression—a parody of the original. Campbell upholds the purpose of copyright to promote new forms of expression such that society gains both the original work and the parodic comment upon the original work.

By contrast, in considering Google Books, a search tool that relies on the use of digitized copies of millions of published works, the courts in 2015 broadened the doctrine to encompass uses that are transformative because they “expand the utility” of the original material. The Google Books interface offers an unprecedented and highly-useful research tool that does not provide a substitute for the works used—namely it does not make full books under copyright available.

Nevertheless, the Second Circuit Court of Appeals cautioned that its holding in Google Books “tested the boundaries of fair use.” In other words, the “utility” aspect of the transformative test is meant to be scrutinized very carefully, as the same court later affirmed in its (2018) consideration of the service ReDigi, which asserted that an online exchange trading in “used” digital music files was transformative …

“Even if ReDigi is credited with some faint showing of a transformative purpose, that purpose is overwhelmed by the substantial harm ReDigi inflicts on the value of Plaintiff’s copyrights through its direct competition in the rights holders’ legitimate market, offering consumers a substitute for purchasing from the rights holders.”

Translation: not everything “new” is transformative under a fair use analysis. Google’s claim that its use was transformative in its defense against Oracle breaks the boundaries the Second Circuit drew in Google Books because Google did nothing to “expand the utility” of Oracle’s code. On the contrary, Google used Oracle’s code for the exact purpose for which it had been developed—and for which other mobile developers had licensed the work.

Further, Google’s claim is not markedly distinguishable from the holding in ReDigi; Google’s use of Oracle’s code put the search giant in “direct competition” with the party whose work it appropriated, usurping opportunities in the mobile market that Oracle was already exploiting by licensing its products.

Google and supporting amici assert that the roll-out of Android itself is sufficient to render its use of Oracle’s code transformative. But if mere “newness” of a product (or even a creative work) were the shibboleth required to pass the transformative test, this standard would swallow copyright in its entirety and nullify the purpose of a fair use exception. “… the more amorphous and unreasonably expansive the analysis and application of the fair use doctrine, the harder it becomes to establish the value of the copyrighted work during licensing negotiations that are the lifeblood of the creative ecosystem,” states the brief filed by songwriters in support of Oracle.

Any use of a prior work will always result in something new; but this novelty alone has never relieved the user of the responsibility to either license the prior work or to demonstrate how the use narrowly qualifies for a fair use exception. In this case, Google makes the familiar (though thankfully still unsuccessful) argument whereby the infringing user asserts that migrating a work from one medium to another is transformative. Not only is this not transformative, but in Google’s case, using Java SE in mobile platforms is not even novel. In the absence of transformativeness the first factor consideration of commercial v. non-commercial use will weigh heavily against Google given that Android is a multi-billion-dollar commercial use.

On the third and fourth fair use factors, Google should also fail, while it may end up a draw on the second. The second factor considers the nature of the work used, and although neither party denies creativity in the declaring code at issue, the inherent functionality of software may point towards a tie in the analysis of the Court. The third factor considers the amount of the original work used, and although Google emphasizes that it copied only a fraction of Java SE, Oracle states in its brief that, “Google admits it copied the packages most valuable to create a derivative version of Java SE for mobile devices.” Further, fair use is not sustained by showing how much they did not copy.

The fourth factor should be especially prejudicial against Google’s fair use claim, as it addresses the harm, and potential harm, to the creator’s market for the work used. Here, as in ReDigi, the analysis militates against fair use. As Oracle states in its brief, describing prior licensees of Java…

“If what Google did was permissible, IBM, Danger, and others would not have licensed Sun’s declaring code or complied with [the interoperability standard] ‘write once, run anywhere.’ If everyone could copy the declaring code without a license, Java SE would lose value, as anyone could ‘reimplement’ a knock-off. This undisputed evidence negates Google’s defense as a matter of law.”

More broadly, if Google’s unprecedented assertion of fair use in this case were the new standard, this would only empower the wealthiest corporations to poach any creative works they choose, as long as whatever they use them for has not already been put on the market. That predicate offends the purpose of copyright and is anathema to the interests of all creators in all media. Google enjoys enough advantages when it comes to squashing competitors and making a business out of infringement, without the courts also rewriting decades of copyright doctrine at their behest.

Google v. Oracle III – Popularity Does Not Overturn Copyright

Looking at Google v. Oracle as a consumer and citizen, common sense insists upon a measure of skepticism in response to the premise that the “future of all software development” depends on Google prevailing in this case. Many of those who say so are the same folks who tend to omit the fact that licensing—especially in B2B relationships—spawns innovation all the time. The underlying bias that copyright makes works inaccessible, rather than licensable, is a connotation that should not be overlooked in this case, particularly when Oracle’s Java licensing agreement is specifically designed to demand interoperability and promote development.

In Part II, I said would begin to address the core matter of contention in Oracle—the copyrightability of the “declaring code” that Google copied for development of the Android mobile platform. Google’s main legal arguments boil down to the following: 1) the “declaring code” they copied is a “method” and, therefore, an unprotectable idea under Section 102(b) of the copyright law; but 2) the Court could more narrowly find that copyright is denied under the merger doctrine; and 3) failing all that, Google’s use was a fair use.

In this post, I want to focus on the second of those assertions, partly because the Section 102(b) argument against copyrightability is largely being made by supporting amici, and although Oracle filed its SCOTUS brief on February 12, supporting parties have not yet filed. But the other reason I want to focus on the merger claim in this case is that the rationale being applied comes uncomfortably close to asserting that once a work becomes popular or important enough in the market, its copyright protection is somehow diminished. This is simply wrong as a matter of law and is an issue of no small concern for creators working in any protectable medium.

“Had To” vs. Had To

To begin with an analogy, if I ran a design firm that relied on a variety of staff and freelance artists who most commonly know how to use Photoshop, my dependence—even existential survival—on people with those skills using that software does not relieve me of the obligation to obtain a license from Adobe. (In fact, firms like this are Adobe’s bread-and-butter.) Yet, Google appears to be arguing that its “need” use the Java code was justifiable without a license because the popularity of Java denies copyrightability in the copied lines of code under the merger doctrine.

To review what I prefaced in Part II, merger denies copyright in works when there are so few ways to express an idea that the expression and idea are said to be “merged.” With software, merger can seem rather tricky because, unlike other forms of creative expression, software always performs a function, which is not protected by copyright law. For instance, no software author can protect the concept of having a computer perform the function of regulating the fuel efficiency in your car, but he can protect the code he writes to perform that function—unless there is only one way to write that code, in which case merger denies copyright.

Google’s merger argument with respect to the Java “declaring code” is founded on the premise that they “had to use it.” But to read their brief (and others), it is not at all clear that they “had to” in the strict, legal sense of “only one way to do it” so much as they “had to” in the business sense that it was the best way to enable Java-fluent developers to write for Android. For instance, the Google brief states, “… the declarations can only be written one way to perform their function of responding to the calls already known to Java developers.” (Emphasis added)

That rationale, akin to my Adobe Photoshop analogy, may have been exigent to Google’s ambition to enter the mobile market and quickly attain the dominance in that space that it now enjoys, but it does not read as a correct appeal to merger. In particular, we have two undisputed facts in this case: at the time of authorship, Sun engineers could have taken many different creative paths to produce the “declaring code” at issue; and at the time of infringement, Google engineers also had many creative options to achieve the same functions.

Google even admitted as much, stating in its brief that its engineers could have written their own version of the desired “packages” but for the fact that this would have been a barrier to enabling Java-savvy developers to write for Android. But just as with my design firm example, this is grounds for licensing an urgently-needed work, not a rejection of copyright under merger.

Google Up to its Usual Tricks?

Assuming the above is a fair criticism, it is a clever sleight of hand for Google to color the business reason they “had to” copy Oracle’s code by advancing a legal theory that could more broadly weaken copyright for all types of creators. Hardly novel territory for Google (or indeed many of its supporting amici), it is quite common to encounter anti-copyright rhetoric alleging that the more a work is considered essential (i.e. very popular), it steadily migrates into the commons; and this legal fallacy was a concern raised by the Solicitor General in its brief recommending the Supreme Court deny cert in this case …

“Petitioner [Google] also argues that the court of appeals erred by focusing on the choices available to respondent ex ante when it created Java, rather than on the choices available to petitioner when it sought to devise a way for programmers familiar with “industry standard Java shorthand commands” to use those same commands in Android. Petitioner’s approach would treat the current popularity of respondent’s work among developers as retroactively divesting the work of copyright protection. (Emphasis added. Citations omitted.)

Note that the word retroactively underscores the point that Google’s allegedly urgent “need” to copy the Java code in 2005—now that it has been synthesized through various legal defenses over the ensuing 15 years—attempts to reach back and deny copyright circa 1995 by applying a doctrine that would not have denied copyright at the time of authorship. As stated in Oracle’s brief, filed on February 12, “Google invokes merger—a narrow judge-made doctrine that does not apply unless the original author had very few ways to express the idea. It does not apply here because, as Google concedes, Java SE’s authors had countless options.”

Consequently, Google’s merger argument begins to read like an attempt to draw attention away from the creative options available to both original author and alleged infringer—a distraction that is perhaps camouflaged by the fact that computer code is generally invisible to most observers and is functional in nature, which makes it appear more susceptible to the merger exception.

I will admit that while combing through the briefs filed so far in this case, I find myself wondering whether Google engaged in unscrupulous business conduct and is managing to thread the needle of a plausible legal defense—or whether Google engaged in bad-faith conduct and then proceeded to cobble together a Jenga tower of flawed defenses that, if upheld, are more holistically harmful to copyright law than might at first appear.

Certainly, the latter conclusion would be consistent with the “infringe now, litigate after we own the market” strategy that has come to define Silicon Valley culture; but this conclusion is also implied by the legal arguments presented when we begin to unpack them one at a time, just as the courts do. For the sake of copyright principles writ large, creators should hope the Supreme Court takes a very cautious approach when considering the logical foundation of Google’s appeal to merger in this case. The relative value of a work does not diminish its protection. On the contrary, we protect works under copyright with the hope that they will become very valuable indeed.

Author: David Newhoff