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 6th

“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. 

© 2020, David Newhoff. All rights reserved.

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