Oracle v. Google: Protecting a Basic Constitutional Right

October 9, 2020 Updated: October 11, 2020

Commentary

This week, the Supreme Court is hearing oral arguments on a case that relatively few Americans know or care about, but they should. Two tech giants are facing off in a decade-long case involving copied software code and a claim of $9 billion in damages.

First, I want to point out that intellectual property (IP), including copyright protection, was considered so important at America’s founding that the Founding Fathers included it in Article I, Section 8, Clause 8: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

In recent years, big tech companies have complained that IP laws inhibit innovation. They’ve magnanimously lobbied Congress to weaken IP laws in order to “help the little guy.” Or so say some of the largest companies in history, founded by Harvard dropouts, Stanford grad students, a bookworm, and two technicians in a garage. IP laws didn’t seem to hurt them when they were starting out and filing patents, but somehow they saw the light after a billion dollars or so in sales.

In the initial lawsuit, Google responded that all they copied from Oracle was 37 elements of software source code known as application program interfaces or “APIs.” These are the computer instructions that allow one program to communicate with another. The manufacturer of the program publishes specs on how to use the APIs, to allow other programs to communicate with it. They keep their software code secret except for the APIs that they must make public to allow programmers to use them.

So copyrights are their only protection. Just like a secret novel doesn’t sell any copies, so novels are copyrighted in order to distribute them publicly but still have protection from copying.

In emails, Google execs said that they tried to license Oracle’s software but couldn’t reach an agreement on price. So they decided to just copy the software. One exec asked, isn’t that a violation of the software license? Probably, the other replied. But they went ahead anyway.

At first, Google claimed the 37 APIs weren’t copyrightable. After all, 37 doesn’t seem like a big number. But the law is clear that stealing a TV and stealing a diamond necklace are both stealing. The penalty might be different, but that’s a different issue. And those 37 APIs actually comprised roughly 11,500 copied lines of computer code.

Why did Google copy the APIs? Because Sun Microsystems (later acquired by Oracle) had created Java, the most popular computer programming language in the world. Google wanted to create the Android operating system for mobile phones to compete with Apple’s iPhone, which was already a huge success. To jump-start their phone, Google needed APIs that programmers already knew so that they could just take their existing Java applications and use them on Android. This gave Google an instant collection of working applications. Google saying that they didn’t copy Oracle’s computer code is like Google saying, “I didn’t steal your stuff, I just copied your keys and gave them out to all my friends. If they copied your stuff, that’s not my fault.”

The jury initially found Google guilty, but in a rare occurrence, Judge William Alsup overruled the jury. When Oracle appealed the case, the appeals court agreed with the jury.

But then Google admitted they copied the code but claimed it was “fair use,” a legal term for when copying copyrighted materials without permission is OK. The appeals court then ordered a new trial about this fair use claim.

Fair Use

There are four criteria for fair use. First, was the copyrighted work changed after being copied? No, Google needed to keep the APIs unchanged to be compatible with all those existing Java applications.

Second, was the copying for a good use? Then it might be fair use. Was it a noncommercial use? Google said it was, but does that argument really fly for a company that had revenue of $161 billion last year? Was it educational? Google was trying to avoid educating programmers in new APIs. Was it for the public good? Google claimed that it was: They were making the APIs free for anyone to use. That argument is like saying I stole your TV, but I put it in the public square where everyone could watch it. It’s still theft.

Third, how much was copied? If an insubstantial amount is copied, it could be fair use. Google said it was just a small number of lines of code compared to the complete program. However, copying isn’t measured by amount but by impact. Copying one book from a library of books is a pretty small percentage, but still copyright infringement.

Fourth, what was the effect on the market? If the copying had only a small effect on the overall market, it could be fair use. Android has obviously had a huge effect on the market, holding almost 90 percent of the entire worldwide mobile phone market.

In the new trial, the jury decided that it was fair use and Google was vindicated. But in the appeal trial, the judges recognized this as a decision in contrast to the law and reversed it. Google has appealed the decision to the Supreme Court, which is hearing arguments this week.

Why should you care about the case? Isn’t it just two tech behemoths fighting over some software? How does it affect your life? It affects it because intellectual property is a key to America’s greatness. The Founding Fathers didn’t put IP protection smack dab in the middle of the Constitution for fun. They recognized that each creator needs protection for their creations. They also recognized that these protections are most important for the individual inventor, author, and artist so that their works aren’t suppressed by those in power or those with wealth.

When there were barriers to women and minorities in America, the patent system was an equalizer. In 1809, before women could vote, Mary Dixon Kies obtained an important patent on a new way of weaving hats. In 1821, while blacks were slaves in much of the United States, African American Thomas L. Jennings obtained a patent for dry cleaning and started a successful business. He used the profits to purchase his wife and children out of slavery and donated the rest to abolitionist groups.

In a rare, and in this case unfortunate, example of bipartisan cooperation in 2011, Congress passed the America Invents Act that, after lobbying by big tech firms, removed power from the inventor and gave it to the patent infringer. Since then, the courts have further diminished the rights of inventors. That’s why this week’s case is important and affects individual creators and small business owners more than the two giants who are fighting in court.

If we’re to maintain our innovative edge, and support our artists, inventors, and authors, we should hope that the court upholds the verdict in Oracle’s favor.

Full disclosure: I was a testifying expert for Oracle in the fair use case. I was hired in part for writings in favor of strong intellectual property rights.

Bob Zeidman is the creator of the field of software forensics and the founder of several successful high-tech Silicon Valley firms including Zeidman Consulting and Software Analysis and Forensic Engineering. His latest venture is Good Beat Poker, a new way to play and watch poker online. He’s the author of textbooks on engineering and intellectual property as well as screenplays and novels. His latest novel is the political satire “Good Intentions.”

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