Tag: Google v. Oracle

Google v. Oracle VII: Google’s Gaslight Defense, A Lesson From the Age of Melodrama

Google and its supporting amici rely substantially on painting a landscape of a contemporary software industry that is highly dependent on what they describe as “reimplementation” of certain types of computer code. Specifically, Google maintains, that the “declaring code” they copied for the production of the Android platform is so exemplary of standard practice that Oracle’s claim of infringement threatens the manner in which the industry has learned to operate over the last two or three decades.

That’s one version of the story, and it’s a narrative that has partly been written by the ten-year Google v. Oracle litigation itself. The other (one might say simpler) version is that in 2005, Google saw that the freight train called Mobile had already left the station and was about to squash its dominant position in online search and advertising, and the company raced to build a platform that could scale very quickly, in an effort to maintain said dominance. Achieving that aim required Android to attract developers to rapidly build apps for the platform, and that, according to Oracle, is the reason Google copied 11,000+ lines of “declaring code” without license, rather than writing its own code to perform the same functions.

Google counters that the “implementing code” component of the Java methods is where the creativity lies, and that because they wrote their own implementations in conjunction with Oracle’s declarations, they did not infringe anything. This bifurcation of the Java components, along with the reimplementation argument, and even the metaphor of a train about to smash into Google’s ad business, all brings to mind a seminal copyright case from 1868 called Daly v. Palmer. The infringed work in that case was a single scene in a stage play, and the matters raised, including the context of the theater industry at the time, offer an interesting analogy for considering Google v. Oracle.

As a matter of copyright statute, we know of course that computer code is squarely in the category of “literary works.” A colleague once explained it to me by saying, “Think of code as writings that a computer can read.” Fair enough. But for the purposes of this post, let’s compare software to “dramatic works” because the infringed work in Daly v. Palmer, I would argue, is analogous to “declaring code,” and the infringer in that case (just like Google) wrote what we might call his own “implementing code,” as well. But this did not distract Judge Samuel Blatchford of the District Court for the Southern District of New York from seeing where “a piracy” had been committed. First, some background …

Daly, Boucicault, and the Age of Spectacle

The sluggishness with which the United States approached the protection of foreign authors—roughly sixty years of dithering on what was typically summarized as the “international copyright question”—contributed to a post-war theater industry rife with plagiarism and unlicensed adaptations. In particular, New York producers entertained the city’s growing middle class in a frenzied, ad hoc, process that did not resemble anything like modern theater production. A show (often some unlicensed adaptation of a European story) might be on the boards for little more than a week, and a show that ran for a month was a hit. In this hodge-podge market, creative poaching—call it the reimplementation of its time—was not only common practice, it was essential for any theater manager who hoped to remain in operation.

In this atmosphere of constant churn, it is important to understand (with regard to Oracle) that when John Augustin Daly thrilled audiences in 1867 with the exciting railroad rescue in his play Under the Gaslight, this scene was the invention that made his melodrama a megahit for its time. Now a cliché, of course, the sequence is as follows:  a young man is tied to the tracks; the train is fast approaching; a heroine, who is locked in a nearby shed, breaks free and releases the man just before the train rushes across the stage, leaving the pair unharmed.

When Daly’s “railroad scene” was soon reimplemented in the London play After Dark, dramatist Dion Boucicault set the same sequence of events in the Underground with different characters, different dialogue, and slight variations on the action—and, of course, in the context of an entirely different story. But Daly believed his creation had been appropriated and that Boucicault had copied the most valuable component of his play, especially in a time when such spectacles were box-office gold. Thus, when After Dark was arranged for production in New York, Daly filed suit, principally to enjoin the use of his “railroad scene,” at least in America.

Stage Directions are Like Declaring Code & Computers Are Like Observers

Daly was seminal for three main reasons. First, it helped clarify the meaning of the “public performance” right, added to the bundle of copyrights in 1856. Second, it affirmed that part of a whole work can be protected by copyright. And third, it is generally viewed as the source of the “ordinary observer” doctrine, which considers whether a regular individual, perceiving an allegedly infringing work, will reasonably find that it is a copy of (i.e. “substantially similar” to) the allegedly infringed work.

Judge Blatchford, who would be appointed to the Supreme Court in 1882, found that Boucicault’s “railroad scene” had infringed Daly’s creative expression. He affirmed that the stage directions were individually and sufficiently expressive, regardless of the words used to instruct the dramatic action and separate from any dialogue, or other elements, in each scene. He then held that Boucicault had copied what we would today call the “heart” of Daly’s work.

Boucicault’s play contains everything which makes the “railroad scene” in the plaintiff’s play attractive, as a representation on the stage. As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration….

Daly’s “declaring code” (if you will indulge the analogy) breaks down thus:

Character A is confined in a space behind a locked door. Character B is helpless on the tracks. Lights and sounds herald a fast-approaching train. Character A uses an available tool to break free of confines. Train gets closer. Character A sprints to remove Character B from tracks. Train races across the proscenium. Nobody dies.

These instructions, regardless of the words used, are commands that the performers and stage hands must follow in a specific manner in order to effect the desired result—fear followed by relief—in the observers. And because these commands are the structural elements of the dramatic scene (i.e. not colored by dialogue, production design, or even the overall story), we can analogize them to “declaring code” in a single API. They are unquestionably part of the whole expression the audience experiences, but they are creative on their own and, again, the heart of Daly’s mental conception. Now, compare Daly’s stage directions to this example from Oracle’s brief describing one of its declarations:

Give me a security key (which I’ll call “verificationKey”) that you want me to use to verify a signature that you previously gave me. Also tell me the algorithm I should use to verify the key (I’m calling that “verificationEngine”). Caution: You can’t just give me any algorithm. The algorithm must meet specified requirements that you can find elsewhere (a class I call “Signature”). There are two ways this might not work (“exceptions”)—the key might be wrong (“InvalidKeyException”)or the algorithm might be wrong (“SignatureException”). If so, I’ll give you an error message. If the signature is valid, I’ll say, “True” (that’s what “boolean” means).

One need not have a clue what any of that means to consider that declaring code (stage directions), directing certain operations in a certain sequence (performers), will yield a certain result from a computer (audience). And because software experts tell us that there is creativity in how one designs, expresses, and organizes declaring code, just as a dramatist will say the same thing about stage directions, we can assume the creativity is present, even if we are not programmers. Judge Blatchford correctly identified that Daly’s creativity lay in the design, organization, structure, and timing of the “railroad scene,” and held that it was sufficiently expressive.     

Google, with its emphasis on the “implementing code” code component asks the Court to come to the opposite conclusion, to retroactively hold that Daly’s stage directions merely constructed a non-creative environment in which the “real” expression took place. Like Google, Boucicault also based part of his defense on the creativity he brought to the table, emphasizing the ways in which he had transposed, or colored, his “railroad scene” differently from Daly’s. Judge Blatchford rejected this premise and articulated the “ordinary observer” doctrine at the same time, writing:

“A mere mechanic in dramatic composition can make such adaptation, and it is a piracy, if the appropriated series of events, when represented on the stage, although performed by new and different characters, using different language, is recognized by the spectator, through any of the senses to which the representation is addressed, as conveying substantially the same impressions to, and exciting the same emotions in, the mind, in the same sequence or order.”

While it may be odd to think of a computer as an “ordinary observer,” it is in fact the most ordinary of observers, one that responds predictably—not by displaying emotions like relief or pathos, but by displaying results like data, text, images, sounds, calculations, functions, etc. Daly’s “railroad scene” directions (his declaring code) elicits a distinct kind of thrill from the audience (computers), without barring any other playwright (code developer) from producing a similar response from audiences by means of equally dramatic, but distinct, rescue scenes.

Protecting Expression, Not Results

The same generalized concern was raised in Daly as it is in Google v. Oracle. If Daly were granted his injunction, it was feared, this would be tantamount to granting him a monopoly on an idea—perhaps extending him the right to license all scenes involving trains nearly hitting people or all nick-of-time rescues. In fact, Daly did try to overreach in this regard, but importantly, “…even with respect to its core holding, subsequent cases narrowed Daly rather than expanding it,” writes copyright scholar Bruce E. Boyden.[1]

The Second Circuit did not even allow Daly to extend his complaint to a production of After Dark with a modified railroad scene. Specifically, that court held, “…in all except the rescue by a third person, the complainant was not the first to conceive the story,” stated the opinion. So, even in those nascent years for both the dramatic arts and modern copyright law, Daly’s protection was almost immediately limited to the “reimplementation” of his particular rescue sequence for use in stage plays. He was not granted copyright on all nick-of-time rescues nor indeed all narrow escapes from oncoming trains. Thus, it seems fair to consider, at least by analogy, that protecting the creativity of Oracle’s declaring code (if it is indeed analogous to Daly’s railroad scene) is not coextensive to a monopoly on the desired results.

Don’t Get Stuck on the Wrong Analogy

At first glance, Daly might appear to offer the wrong defense for Oracle. One could get hung up on the fact that Daly and Boucicault each used different words (code) to instruct performers in order to produce the same general result for audiences, and that this is the relevant distinction in Google v. Oracle. In fact, Oracle has averred that if Google had used its own code to achieve the same result, this litigation would have no foundation; and one might be tempted to argue that this is where my whole analogy breaks down. But only if we misread Daly. Judge Blatchford states …

“Boucicault has, indeed, adapted the plaintiff’s series of events to the story of his play, and, in doing so, has evinced skill and art; but the same use is made, in both plays, of the same series of events, to excite, by representation, the same emotions, in the same sequence. There is no new use, in the sense of the law, in Boucicault’s play, of what is found in the plaintiff’s ‘railroad scene.’ The ‘railroad scene’ in Boucicault’s play contains everything which makes the ‘railroad scene’ in the plaintiff’s play attractive, as a representation on the stage.”

Stagecraft (declaring code) is creative. Moreover, Judge Blatchford’s reference to the “attractiveness” of Daly’s scene is a soft allusion to the market-based motive for Boucicault’s copying so valuable a scene, which brings us back to the other reason Daly is an interesting framework for reviewing Google v. Oracle. One could, of course, critique the analogy because Daly entails non-literal copying while Google entails literal copying, but Google probably would not want to go there, since case law recommends stronger protection where literal copying has occurred.

A Reminder that Reimplementation is Another Word for Copying

In addition to Judge Blatchford’s opinions in Daly v. Palmer, the history surrounding that case reminds us that the claims of any industry’s “need” to copy should always be viewed skeptically. Despite the fact that chronic appropriation (including by Daly and Boucicault) unquestionably catalyzed an abundance of theater activity in the nineteenth century, few of the plays from that period would be viewed by modern audiences as terribly “original.”

As was the case with American publishing in the nineteenth century, investment in new dramatic works—and Boucicault was among the preeminent dramatists to suffer in this regard—was stifled until the 1891 copyright law adopted reciprocal rights with foreign nations and relieved the theater industry from a vicious cycle of chronic appropriation. Hence, those who, like Google, tend to overemphasize “reimplementation,” and regard copyright as an intolerable obstacle to their business models, seem to reflect a lack of imagination that would have failed to anticipate the explosion of creativity that occurred in the twentieth century.

In fact, as both creativity and copyright law evolved since 1868, we came to recognize that endless variations on scenes a faire, nick-of-time rescues coexist within in a rich tapestry of dramatic works. Likewise, it is at least plausible—if not irrefutable—that if Google’s copying in this case is held “a piracy,” that somehow creative variety will manage to prosper in the software industry. Therefore, it will be interesting to see whether the Court is persuaded by Google’s allegedly urgent need to copy, or whether it concludes that Google simply dashed onto the tracks to rescue its ad business. 

[1] See Bruce E. Boyden, Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer. https://ssrn.com/abstract=3157782

Google v. Oracle VI: Google’s Distract, Divide, and Conquer Strategy

As proceedings in Google v. Oracle were delayed by the coronavirus, I also paused writing about the case, but now that oral arguments are scheduled for October 7, this topic will return to the headlines in copyright and tech news. During the break, I had the opportunity to review all the briefs filed in this case, and as a general assessment, it does seem as though Google and its supporting amici want to portray software as a special category of works that is somehow protected according to different standards than other categories of works under copyright. Because software is always functional in nature, and because copyright does not protect functions, it is certainly a category that can seem confusing to discuss.

Consequently, Google’s strategy (and not for the first time) reads as though it is designed to exploit any inherent confusion about computer science, or the industry, with the hope that the Court will misinterpret the keystone legal question in this case. At the very highest level of appeal, they seem to be saying even to the Justices, “You legal folk don’t get technology.” Copyright owners in every medium are very familiar with Google’s repeated (and often successful) use of this rhetorical device in the blogosphere, and while it is often suspect in the court of public opinion, it is a profoundly dubious strategy in a court of law.

Google and its amici repeat the themes that if the Court were to affirm the Federal Circuit’s finding of infringement in the use of what they call “declaring code” (a.k.a. source code), this would be an unprecedented expansion of copyright. As a result, the argument continues, this will allegedly stagnate investment and competition in the code-writing industry by transforming the biggest players into monopolistic entities, who will then use their “new” copyrights to stifle innovation and interoperability.

That is a doozy of an accusation to be made by one of the most anticompetive companies in modern history—and then to be leveled at a plaintiff whose product is designed to promote interoperability—even mandates interoperability by all licensees. This claim also belies the many advances in innovation and software development in the period since the Federal Circuit’s 2014 decision in favor of copyrightability. But I’ll return to the particulars of the business squabble in a later post. For now, let’s focus on the copyright question before the Court.

The Keystone Legal Matter:  Copyrightability of Declaring Code

My general takeaway from the briefs is that the Court will not be easily persuaded that even the declaring code copied by Google fails to meet the standard of originality sufficient for copyright to protect these works. “Originality” under copyright turns primarily on the determination that a modicum of creativity is present in the work, and not even Google and its amici seem to present a full-throated contradiction to Oracle’s industry-expert amici who say that declaring code can be highly creative. In fact, it seems to be widely acknowledged that Java in particular has been so successful because of its tremendously creative (a word often used is elegant) design.

If it is true that the declaring code and the implementing code together comprise the “human readable” set of instructions given to a computer, this suggests that declaring code can be a significantly important aspect of the expression. In particular, we must assume that when countless human programmers describe code as “elegant,” the authors of that code have communicated something to them in a manner akin to a novelist communicating to her readers. That something, in copyright terms, is generally found to be “creative enough” to fall under legal protection.

Although Google does have more software engineers signed onto its supporting briefs, the Court does not ask for a show of hands. Moreover, it is notable that even those briefs appear to navigate around the central matter of copyrightability, claiming that declaring code is the functional part of an API, while only the implementing code, which Google wrote itself for the Android platform, is the expressive part.

The computer scientists in support of Google imply that the declaring code is non-creative—that it is akin to a language, which, by itself “does not tell a computer to do anything.” But if I understand the development and function of a whole Java package correctly, there is a sleight of hand at work in this claim, one that seeks an idea/expression analysis that is not demonstrably inherent to the work at issue. For instance, the computer scientists’ brief for Google presents a very simple example of declaring code that is used to sort numbers, and then it states:

“A programmer must type those words exactly as they appear above, including the same capitalization, punctuation, and order. Otherwise, the declaration will cause an error or specify a method with different functionality, like sorting words instead of numbers.”

That description as to how a programmer must use that particular code does not in any way answer whether the code at issue is sufficiently creative for copyright to attach. It also obfuscates the fact that Google could have written its own declaring code in Java to perform the same functions. To borrow an analogy apropos the copyrightability question, consider that a musician must play exactly certain notes in a precise order (and within a limited range of tempos) in order for a listener to recognize that the song being played is “Hey Jude.”

So, Google’s broader argument, begging the Court to divide declaring and implementing code, begins to appear rather circular—the equivalent of saying that because “Hey Jude” is widely recognized by musical performers and listeners, a new composer may need to implement this melody into a larger composition; and, in order to do so, he must copy exactly the correct notes in their precise structure in order to maintain the “readability” of the song. But this meandering rationale does absolutely nothing to nullify the copyright in the composition that was copied. Ditto, it seems, with the 11,000 or so lines of code copied by Google.

Sticking with this analogy, Google would ask the Supreme Court to vitiate copyright in a musical work’s composition on the untenable premise that copyright does not attach until the composition is colored by arrangement and performance choices. But that is not correct. On the contrary, a work is copyrightable as long as it is 1) fixed in any tangible medium of expression; and 2) embodies a “modicum of creativity.” And according to the computer scientists in support of Oracle, Java APIs are more than modestly creative …

“Significant creativity goes into the design of the structure, sequence, and organization of the API itself, including how to structure the libraries, packages, classes, and methods, as well as the declaring code itself. Indeed, part of the beauty of Java is that groupings and classes often share or ‘inherit’ features that are commonly used, such that the decision of how to group classes and methods becomes a creative design choice, not just a categorizing or filing exercise.”

Replace words like libraries, packages, classes, and methods with keys, chords, notes, tempos, and rhythms, and one need not be a composer to understand that certain selections among these common elements will produce “Hey Jude,” while an entirely different selection among these same elements will produce “I Wanna Be Sedated.” Likewise, the Justices need not possess any programming experience to conclude from that description (if accurate) that the declaring code at issue is a work that easily meets the threshold of originality within copyright law.

Google’s Idea/Expression Claim May Reveal Its Own Weakness to the Court

Google appeals to the limitation under Section 102(b) that bars copyright protection to “methods or functions.”  In order to support this claim, a few amici ask the Court to turn to the doctrine of “separability” under an infringement analysis whereby the Court separates the expressive elements of a work from any functional “article” to which they are attached. In 2017, the Supreme Court did such an analysis in Star Athletica v. Varsity, where the majority opinion held that the designs Varsity made for its cheerleader uniforms were independently copyrightable as pictorial works, separate from their application to the useful, non-copyrightable, uniforms.

Amici Python Software et al, in support of Google, contend that this Court’s precedent in Varsity should favor Google because it will not find any expression to protect if they separate the declaring code from the whole work of the Java APIs. But, that line of reasoning may undermine Google’s defense because Varsity affirmed just how minimally original a work can be in order for it to be protected. In fact, in Justice Ginsburg’s concurring opinion, she disagreed that separability had to be considered in Varsity, holding that the works submitted to the USCO were “not designs of useful articles. Instead, the designs themselves are copyrightable…works reproduced on useful articles.”

That kind of straightforward analysis may not avail Google, if the Court agrees with Oracle’s software-expert amici that the declaring code copied is not merely functional like the gears in a machine, but is an expressive work on its own. As several amici in support of Oracle noted in their briefs, Google’s own witness, its “Java guru,” testified that there can be “creativity and artistry even in a single method declaration.”

In sum, the various claims that the declaring code is not creative begin to read a bit like after-the-fact wishful thinking, which would mean that Google is the party seeking the unprecedented legal standard in this case. As several amici for Oracle mention, this recommends an appeal to Congress and not the Court. Add to all this the fact that the separability Google is now seeking was debated and rejected at the time computer code was added to the Copyright Act in 1980, and their claim of non-copyrightability begins to look like a strenuous climb over a very steep mountain of settled law.

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.