Is Google Justified in Its Case Against Oracle? Ask the Founding Fathers

By Andrew Stroud
Andrew Stroud
Andrew Stroud
Andrew W. Stroud is a lawyer in California who specializes in intellectual property law.
January 29, 2020Updated: February 6, 2020


The Supreme Court recently agreed to review what may be the copyright case of the century, best described as a clash of the titans: Google v. Oracle.

As of Jan. 17, a total of 29 amicus briefs have been filed to the court, with even more likely to be submitted. But while covering an array of arguments, those briefs obscure a fundamental truth: It’s the words of the Founding Fathers that truly matter.

In this case, Google contends that it shouldn’t be liable for copying verbatim 11,500 lines of code that lie at the heart of the Java platform, now owned by Oracle. Google and its supporters claim this is because the purpose of copyright law is to promote the creation and publication of useful works, such as Google’s Android system.

But as the Department of Justice has already suggested in rejecting Google’s claims, Google is taking a position that’s diametrically opposed to the concept of copyright law as established by the Founding Fathers.

The fundamental principles of copyright law are found in the U.S. Constitution. Article 1, Section 8, Clause 8, the so-called “Copyright Clause,” gives Congress the power to “promote the Progress of Science and useful Arts.” So, Google is correct when it states that the purpose of copyright law is to promote the creation and publication of works in the arts and sciences.

However, to achieve this objective, the Founding Fathers didn’t opt to prevent authors and inventors from profiting when others used their work, and, in fact, said just the opposite. The Founding Fathers expressly recognized that the best means of promoting science and technology is by paying authors and inventors to use their work, not by freeloading off their work, as Google contends.

The only reason this case exists is that Google didn’t want to license the Java software when the company was given the opportunity to do so. Instead of accepting a license agreement proposed by Oracle, Google just copied the relevant portions of the Java code that were needed to create its own software.

Google also claims that the copyright laws don’t work when applied to some computer software because software such as Oracle’s APIs contains critical “declarations” that must be used by every software developer when creating new Java applications. Because this code is, according to Google, the only means of performing certain essential functions, Google asserts that Oracle’s APIs aren’t subject to copyright, which only protects expression and not functions or ideas. Otherwise, it would give Oracle an effective monopoly over future Java development.

Again, Google’s position is contrary to basic copyright law. A Federal Circuit court already found that replication wasn’t the only means for Google to use in developing its own code. According to the court, there were “unlimited” ways to write the code that would be identical in functionality and wouldn’t violate copyright law.

That Oracle already chose one way to express its declarations didn’t prevent Google from using another, and the only reason Google decided to copy Oracle’s was to save time and money.

As conceived by the Founding Fathers, Google’s position is again directly contrary to copyright law. Under the Copyright Clause, Oracle has the “exclusive” right to express its APIs in any form. Google can’t now take that expression for its own simply because it’s more convenient.

Google’s argument, if accepted, could completely undermine copyright law. Under Google’s view, the more creative and original a work, the less likely it would be subject to copyright protection. This wouldn’t promote scientific advancement. It would squelch it.

If Google were really interested in promoting the advancement of the arts and sciences as it asserts, it has a way of immediately doing so. No doubt the arts and sciences would be greatly advanced if Google shared its search algorithm with the world, so that others could learn from and build upon it. Yet, Google doesn’t disclose its algorithm to anyone.

Apparently, Google believes it’s entitled to profit handsomely from the hard work it undertook in its development. One has to ask: Isn’t Oracle entitled to the same thing? The Founding Fathers envisioned that intellectual property was just as entitled to protection as any other form of property.

To that point, there should be no exceptions, not even for Google.

Andrew W. Stroud is a lawyer in California who specializes in intellectual property law.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.