I realize the Court will rule anytime now, and that I may be gilding the proverbial lily here; but I drafted this post in early January, and then the world got a little crazy and distracting. Anyway, FWIW, below is my last observation about Google v. Oracle. At least until after the decision. 🙂

In Google v. Oracle, the Supreme Court will render opinions on two legal arguments, either of which could have profound effects for different interests. The Court’s opinion on the copyrightability of Oracle’s “declaring code” will, in one way or another, be felt throughout the software industry, while the Court’s opinion on fair use will affect the entire ecosystem of creators in every category of copyrighted works.

As discussed in other posts, the Supreme Court should reject Google’s attempt to hyperextend the purpose and character of fair use, and in doing so, it should unanimously decline to transform modern copyright doctrine from the bench. In earlier posts, I discussed why Google’s claim that the code at issue should not be held uncopyrightable under the “merger doctrine” (§102(b)), which would have to affirm that the code at issue is a method rather than a form of expression. Nevertheless, the Court may feel hesitant to “upend the software industry,” if it is persuaded that finding copyrightability in Oracle’s code might have this result.

The most compelling argument in this regard is presented in the amicus brief filed by eighty-three computer scientists, which includes some of the most renowned names in software development over the last half century. It is hardly sensible for most of us—and certainly not for me—to debate that industry’s conduct with the likes of Steve Wozniack et al. If these experts say that “reimplementation” of software interfaces (APIs) is standard practice that the software industry has relied upon for decades, that statement must be given both deference and weight.

At the same time, we must keep in mind that “reimplementation” is not barred by copyright—that in fact much of the “open source” copying in that industry is bound by various conditions, which are defined by licensing agreements that are only enforceable under copyright law. In that regard, Java is a classic example of code that offers different tiers of licensing where, for instance, the educator may access all of Java for free, while the commercial user is subject to fees and other conditions. There is nothing remarkable or inherently stifling about these distinctions.

More specifically, as a question of law, even if we accept the computer scientists’ broad description of industry-wide reimplementation as fact, it tells us nothing about whether there is sufficient creativity in Oracle’s declaring code to qualify for copyright protection. In reviewing the various briefs filed by experts on both sides of this case, it seems clear that some declaring code is quite simple, and some is very complex—and creativity, presumably, expands with complexity. Further, there does not appear to be much if any quarrel with the premise that declaring code can be highly creative—easily creative enough for copyright to attach—and if that is correct, that should be the ballgame as a legal matter, regardless of industry practice and expectations. And Google has conceded that Oracle’s declaring code is creative.

This does not mean, however, that the Court will be wholly unsympathetic to the “standard practice” argument, or eager to disturb an entire industry if they believe this could be a consequence of its decision. So, let’s consider the argument a bit further, assuming the computer scientist amici are absolutely right on key facts, but perhaps a shade over-saturated in coloring their picture of the broader landscape relative to Google v. Oracle. For instance, I would pay attention to language in the brief that makes statements like, “Android is the most popular [mobile OS] in the world,” which is presented more than once in defense of Google’s reimplementation of the Java APIs to ultimately “transform” the mobile market.

That sentence caught my attention because the word popular implies consumer choice, which is in fact very limited in the mobile market. If the consumer is a dedicated Apple user, those phones are quite expensive. Alternatively, if the consumer needs a more affordable mobile device, she can choose among different phones that are nearly all running on one OS called Android.* And Android was not made freely and widely available as a gesture of Google’s largesse, or for the purpose of fostering competition of any kind.

While Google seeks to frame its free mobile OS as both generous and revolutionary, consumers have largely come to understand the digital-age axiom that if you’re not the customer, you’re the product. Google no more gives away Android “for free” than it does any of its other platforms. Consumers and various government agencies investigating antitrust practices fully recognize that the price of “free” has been to allow companies like Google to accumulate and manipulate data that is then used to alter consumer behavior, stifle small business in various markets, generate advertising revenue from the exploitation of often-questionable content, and, above all, to solidify their own market dominance.

This is not to say that if Google had licensed the Java code at issue, it would not still be the leading supplier in the mobile market—but that’s part of my point. The reason I homed in on this fallacy of Android’s “popularity” is that it informs a response to the claim in the computer scientists’ brief, which argues that “Uncopyrightable software interfaces address network effect barriers by enabling startups to plug into existing systems and innovate through cumulative improvements.” [Emphasis added]

While that sounds plausible as a generalization, in this particular case, the Court should be mindful that the forces buttressing Android’s market position—especially the network effects—render Google nearly immune to competition from startups. And these forces have little to do with copyright one way or another.

Android is a poor context in which to discuss “addressing network effect barriers.” Google’s market-share and wealth makes the company the very definition of a “network effect barrier.” As such, it seems equally possible that copyright (i.e. a mandate to license the code) is the only protection that a prospective startup has while attempting to thrive in a market presently conquered by the Googles, Amazons, and Facebooks. So, while a startup may get off the ground by copying some aspects of an already-dominant platform, the weakness Google now asks the Court write into copyright law would allow Google to turn around and copy the innovative aspects created by the startup, thereby crowding the startup out of business.

So, when the computer scientists’ brief describes competition in the market, it seems that it is often alluding to intramural competition on a technological playing field owned by one or a few prevailing companies. For instance, there may be competition among developers writing apps for the Android platform, but there is no startup, at least not in the American market, that can feasibly challenge Android for a piece of its share in mobile. And if such a startup were to emerge, it seems farfetched to allege that licensing declaring code, for instance, would be the barrier to stifle that prospective venture. Instead, it seems more likely that the barriers to that potential competitor are much more potent market forces that have little to do with copyright law in general, and nothing to do with the copyright questions presented in this case.

Are the Generalizations Instructive?

Quite possibly, the most intriguing segment of the computer scientists’ brief is where it describes how many developers, including Sun Microsystems itself in the development of Java, have reimplemented software interfaces in the process of bringing their products to market. This section presents a very clear portrait of standard industry practice, but it also reprises those two bugaboo questions I’ve asked before: 1) If unlicensed reimplementation has been so standard for so long, why did other commercial developers license Java declaring code for various purposes?; and 2) Why did Google itself almost enter into a license with Oracle that it only declined due to interoperability conditions with which it did not wish to comply?

Looking at this narrative as an outsider and giving all parties in the computer expert world their due respect, it is hard not to feel that, amid the generalizations about industry practice and innovation, some details are missing that are intrinsic to this case. Either declaring code is never the subject of copyright OR it is always the subject of copyright, OR some declaring code is properly protected while other declaring code is properly not protected. This latter conclusion would depend upon the amount of originality in the work, just like every other copyright category. And again, there seems to be consensus among all software experts that some declaring code can be highly creative, or as Deputy Solicitor General Malcolm Stewart described at oral arguments:

 …the briefs talk about the practice of copying interfaces or APIs, but those terms are very vague and potentially expansive. And a lot of things that might be called interfaces would be segments of code that are so short that they don’t exhibit necessary creativity, segments of code that are necessary to preserve interoperability. It may be that in particular circumstances, particular interfaces can be copied without authorization, but that’s not a basis for a general rule.

In other words, broad statements about industry practice, no matter how many names sign an amicus brief, can obfuscate the salient details in this case, as well as countless other scenarios in the software universe where reimplementation is ably supported by licensing agreements. This begs one of the real questions at issue, which is who benefits most from the bright-line rule the Court is being asked to make on the copyrightability of computer code—the independent software developer or the entrenched giant? While Google’s computer industry amici ask the Court to imagine how StartupXYZ benefits from copying GiantXYZ’s code, it also asks the Court to ignore the inverse scenario when GiantXYZ copies StartupXYZ’s code. It is easy to forget this when neither party in this lawsuit is a startup, but it is a question that should not be lost in a river of generalities.

Computer Scientist Brief Says Fair Use is Not Enough

Interestingly, the computer scientists’ brief asserts that a finding of fair use for Google would be of insufficient value to the software industry overall because this “would create uncertainty” in the trade. Naturally, a holding that declaring code is simply never protected is far more certain than a narrow finding of fair use in this one case, which would not preempt future litigation over copying the same kind of code. Thus, the computer scientists’ brief confirms that a finding of fair use would only help Google while asserting it would do little for the industry as a whole.

That’s just as well since finding fair use in Google v. Oracle would, I believe, be an error of law that would be holistically detrimental to creators in all industries. The fact that the defendant in this case happens to be directly responsible for evangelizing an extremely broad fair use doctrine, while reaping the financial benefits of widespread online infringement (e.g. on YouTube), is at least an aggravating factor, if not a dispositive one.

Returning to the questionable proposition that “uncopyrightable APIs” necessarily spawn competition and innovation, it is very hard to ignore the background narrative in which mass copyright infringement has been integral to Google’s acquisition of market share in various lines of business, thus producing the mother of all “network effects” such that parent company Alphabet—along with Facebook, Amazon, and Apple—is facing antitrust investigations in multiple countries. Simply put, words like competition are incompatible with Google’s conduct throughout the industry, and its monopolistic presence should at least color how the Court interprets the “standard practice” argument presented in this case.

If the Supreme Court can justly hold, as a matter of law, that the declaring code at issue is uncopyrightable under §102(b), then this is the only basis on which it should arrive at that finding. As for the broader implications for technological innovation, while it is certainly difficult to dismiss an august body of computer scientists, it is equally tough to reconcile the ways in which Android so dramatically belies their premise. Speaking as a consumer who feels pretty damned locked into very limited choices in mobile, I am simply not seeing the benefits of unlicensed reimplementation in this particular example.

*Though Microsoft is a player in mobile, it presently has a very small foothold.