Google v. Oracle X: The Tao of Google

While reading a few other articles about this case, articles written by actual legal experts, I was reminded that Google v. Oracle, despite its epic scale and likely significance as a precedential ruling, is, in fact, not terribly complicated. At least it shouldn’t be. What has made the case complicated of course is Google’s obfuscation in an attempt to win. But the problem for creators, both within and beyond the software industry, is that Google’s key claims in its defense run afoul of some core copyright principles.

Keep in mind that the only reason Google declined to license the code at issue, as many other commercial developers have done, was its refusal to allow interoperability with the rest of Java. It was this aspect of the license agreement that presented a hurdle to Google’s desire to monopolize as much of the mobile market as possible, a goal the company has since achieved. Thus, Google’s defenses may be viewed skeptically, as legal constructs erected after a strategic decision to infringe and are, therefore, rather circular and distracting in their reasoning. But such is the Tao of Google.

The Simple Story:  Verbatim Copying & Copyrightability

Google copied over 11,000 lines of Java code. This fact is undisputed. Also undisputed is the fact that computer code is expressly protected by copyright as of at least 1980, and that unlicensed copying of computer code, therefore, is an infringement of copyright. But says Google, the kind of code they copied (what the industry calls “declaring code”) should not be protected by copyright. However, another undisputed fact is that while adding computer code to the copyright law, Congress was confronted with the very question Google raises and determined that code is code with respect to its protection as a “writing.” Nevertheless, Google persists …

According to those who know, Java is very good code. Consequently, a lot of programmers are fluent in the use of Java. And that is the reason Google copied what it did—with the aim of attracting developers to create apps for the Android platform as quickly as possible. While that is an understandable market interest, it does not alleviate the obligation to license the work at issue.

Yet, Google seeks to conflate its exigent “need” to copy with the exception under copyright law known as the “merger doctrine.” Merger applies when there is only one way, or very few ways, to express a particular idea—or, as is the case with software, to perform a given set of functions. Google hopes that the Court will overlook the undisputed fact that there is more than one way to write code to achieve the same functions for which it appropriated Oracle’s work—that in fact other developers have done so. Google’s argument asks the Court to apply the merger exception after a work attains popularity, where it would not apply at the instant of authorship …

The Simple Story:  Transformative Fair Use Actually Requires a Transformative Purpose

Should Google fail to convince the Court that 1) the code at issue is not code under copyright law; or 2) that the code at issue falls under the merger doctrine by virtue of its popularity, Google naturally asserts a fair use defense. This is one reason Google v. Oracle is a very big deal. As former Register of Copyrights Maria Pallante notes in an interview with Copyright Alliance CEO Keith Kupferschmid, the Supreme Court does not take copyright cases very often and that this will be the first time in 26 years that the justices will consider a fair use defense. Rightsholders everywhere should hope that the Court holds that fair use in the 21st century, despite all the shiny new objects, is not any different than it was in the 20th century.

Especially with regard to “transformativeness,” lately asserted in just about every alleged infringer’s defense, the Supreme Court’s opinion about Google’s appeal to transformativeness in this case may have profound effect on copyright enforcement for decades to come. Although Google used the code at issue for the same purpose for which it was written, it seeks to obfuscate this inherently non-transformative use behind a cloud that the mobile market itself has been, in a sense, transformed. Notwithstanding the fact that Apple, not Google, revolutionized the landscape of mobile …

This may be the most hazardous argument in Google’s quiver for copyright owners in every category. It alludes to the fourth factor in the fair use analysis, which weighs the potential market harm to the original work. This consideration is meant to look beyond the immediate harm that may be caused by the contested use itself. It asks what would happen to the market for the original if the same conduct were widespread and engaged in by multiple parties, and it asks whether the alleged infringement has appropriated the original author’s right to prepare derivative works. In Google v. Oracle, the answers to all of these questions should strongly disfavor a finding of fair use under factor four.

If the Court were to agree that the code at issue is not copyrightable, that would have major implications for the software industry and, in the view of many, be a misread of the 1976 Copyright Act and Congress’s 1980 amendment to it. Alternatively, if the Court finds that the copied code is correctly protected by copyright, but that under the fourth factor in particular, Google’s use was a fair use, the ruling could be disastrous for creators in every medium. It would say to every creator that whoever has the resources to attain market share the fastest is justified in appropriating any work to serve that purpose. That is anathema to copyright’s purpose.

It is no accident that this consideration is so prominent in a case involving Google. Almost nobody can compete with that company when it looks to dominate a segment of the digital marketplace. And copyright law remains one of the few bulwarks independent creators (and society in general for that matter) still have against Google’s near-monopoly power. Why else have they spent so much time, money, and energy trying to weaken copyright, along with anti-trust and privacy protections? Because the Tao of Google is no joke.

© 2020, David Newhoff. All rights reserved.

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