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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. 

Google v. Oracle: Copyright Thought Leaders Dismantle Pro-Google Arguments (Guest Post)

Editor’s Note:

Thirty-two amicus briefs were filed with the Supreme Court in support of Oracle in Google v. Oracle. Among these was one written by Steven Tepp, whose credentials include former Senior Counsel at the Copyright Office, and whose brief was signed by several other copyright experts from both the public and private sectors.

On February 21, Jonathan Band, on behalf of the Computer Communication Industry Association (CCIA), wrote a blog response under the thesis that many of Oracle’s amici have no “connection to the technology industry or any understanding of the interoperability issues at play in this case.”  Notwithstanding the fact that of the list of amici includes SAS Institute, Synopsis, Dolby Labs, MathWorks, former Sun CEO Scott McNealy, and former EMC CEO Joe Tucci, among others, Band seems to imply that the other amici—all experts in copyright law—are wrong on the copyright matters because they are independent from the software industry. Given that Band devoted extra attention to Tepp’s brief, and Tepp does not have a blogging platform (like Band’s well-funded Project DISCO), I am happy to publish his response here as a guest post.

– DN –

I had the honor and privilege of authoring an amicus brief to the Supreme Court in support of Oracle in the pending copyright infringement suit against Google. It is a strong brief that makes a firm case on the law, as well as on policy grounds, that Google’s copying of over 11,000 lines of computer code for use in competition with the copyright owner violates the U.S. Copyright Act. I am proud that prominent attorneys who have worked in academia, senior positions in federal administrative agencies and Congress, and private practice, supported my brief as co-signers.

One of the sections of my brief pointed out to the Court how the arguments of the pro-Google brief filed by CCIA and the Internet Association had incorrectly relied on the Ninth Circuit decision in Sega v. Accolade as precedent for why Google’s copying was “fair use” under the Copyright Act. The author of the CCIA brief, Jonathan Band, has since written a blog in which he summarizes and critiques the thirty-two pro-Oracle briefs, including mine. In it, he doubles down on his reliance on Sega, so I wanted to set the record straight.

“Interoperability”

The main thrust of Band’s arguments is that the Sega decision stands for the proposition that copying code for the purposes of achieving “interoperability” is fair use under the Copyright Act. And he then also cites to instances where the Sega policy was followed by Congress, the Copyright Office, and in some foreign laws. There are two fatal flaws with this argument.

First, as a matter of law the Sega decision did not endorse a broad, vague, or general notion of “interoperability.” That court was very clear that Accolade’s copying of Sega’s operating code was only to study it to learn how to make applications that would work on Sega’s platform. Accolade’s software did not include any of Sega’s code in its final product, did not compete with Sega’s platform, and did not avoid any customary licensing fees. In the case now before the Supreme Court, Google admits it copied Oracle’s code into its competing product and refused to pay the usual licensing fees.

Second, as a matter of the undisputed facts in this case, the Android platform is NOT interoperable with other Java-based platforms. As the brief of the United States Government points out, Google “designed its Android platform in a manner that made it incompatible with [Oracle’s] Java platform.” (emphasis in original).

Both on the facts and the law, Google is not entitled to rely on Sega or similarly circumscribed rules as precedent or justification for its appropriation of Oracle’s code.

Nonetheless, Band tries to garner support from a Copyright Office report passage that “in many cases, copying of appropriately limited amounts of code from one software-enabled product into a competitive one for purposes of compatibility and interoperability should also be fair use.” It is curious that Band looks to the Copyright Office for support in this particular case. The names of three of the top lawyers at the Copyright Office appear on the U.S. Government brief in support of Oracle, including one of the people who worked on the report from which Band quotes.

The U.S. Government brief responds to the exact line Band quotes, “Contrary to petitioner’s [Google’s] contention, the Copyright Office has never endorsed the kind of copying in which petitioner engaged…enabling developers for Android to draw on their preexisting knowledge of commands used on the Java platform does not constitute ‘interoperability’ as that term is defined in the Copyright Act or discussed in any judicial decision or Copyright Office publication.”

International Considerations

I argued to the Supreme Court that a ruling of fair use in this case would violate sixteen international agreements to which the United States is a party. Specifically, such a ruling would be inconsistent with the globally accepted “three-step test” for allowable exceptions to copyright, which appears in all those agreements and treaties. Band’s blog goes beyond his brief to attack this analysis, claiming that only legislative enactments are subject to scrutiny under the three-step test. He is wrong.

Nothing in the text of the three-step test, or anywhere else, indicates it does not apply to exceptions that arise or are implemented through administrative or judicial action. To be fair, a lower court ruling that may not be precedential even within its relatively small geographical jurisdiction would be a weaker case to apply the three-step test.

But this case is before the Supreme Court, the highest court in the land. Its rulings bind all lower courts and may be overturned only by itself or by Congress. So, if the Court rules that verbatim copying for use in direct competition with the copyright owner is fair use, that is the law of the land for the foreseeable future—and this country is accountable for it.

Moreover, current and past practice shows that the governments of the world consider court decisions subject to analysis for treaty compliance. Over the years, the United States Government has been peppered with questions from foreign governments about previous fair use rulings. The United States has done the same, holding other countries accountable for their courts’ decisions.

Band’s second line of attack on my three-step test analysis asserts, “the interpretation of the three-step test advanced by the ‘Thought Leaders’ is so narrow that it would completely undermine the ability of the highly commercial U.S. copyright industries to rely upon fair use.” To be clear, the interpretation I “advance” in the brief is not my own, but the interpretation of a neutral panel of international experts who decided the case brought against the United States by Ireland under the auspices of the World Trade Organization. In that dispute, the panel found an expanded exception in U.S. law concerning the public performance of musical compositions violated the three-step test. My brief merely applies that panel’s standards to the facts of Google’s copying. Band’s assertion that the panel decision (which was written twenty years ago) now suddenly undermines fair use is contradicted by the reality of the past two decades.

My final point on international matters is that if the United States fails to live up to its international commitments, it will undercut our credibility when we insist on adequate copyright protection in other countries, most notably China. Band wraps up his blog’s attention to my brief by asserting that a ruling for Google would “increase the credibility of the U.S. copyright system by showing that it can balance the needs of different stakeholders to advance the public interest.”

It says much about his approach to copyright issues that he considers outright copying of over 11,000 lines of code, for use in direct competition with the rightful copyright owner, to be a “need.” It is also telling that he conflates Google’s business decision to free ride on Oracle’s code with the “public interest.”

In any event, it is only common sense that any country presently criticized by the United States for failure to provide proper protection for copyright would be all too happy to point the finger back at us if the Court were to rule in favor of Google’s appropriation. No doubt China and other economic competitors would welcome the United States lowering its intellectual property protections, particularly for our successful technological innovations. But I don’t think it’s in our interests to be more like China is that regard.

Our trade and copyright negotiators have been hampered for twenty years by our loss in the relatively minor matter in the case brought by Ireland. A ruling in this much more economically significant case would magnify those hurdles by several orders of magnitude.

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.