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Ken Glueck, Executive Vice President, Oracle—Feb 17, 2020
There is a lot of chatter that “tech” is supportive of Google’s position in Google v. Oracle. That was certainly the impression Google tried to spin when its Amici filed briefs with the Court last month. But a closer inspection of Google’s Amici makes clear that the technology community is not supporting Google’s position. Not even slightly.
As we stated in our prior blog post, the issues of copyrightability of Java software have been settled since the Federal Circuit Decision in 2014. It is Google that is urging the Supreme Court to draw some new magic line between some code that is copyrightable and other code that isn’t. Google tries to create a sense of urgency where none exists and controversy where there is actually agreement. And a close read of Google’s Amicus briefs reveals that Google appears to be virtually alone—at least among the technology community—in seeking to weaken copyright for software.
We also highlighted in our prior blog that Google has not provided a single real-world example of innovation that has suffered due to the pendency of this case. In the intervening six years since 2014—there is zero contemporaneous evidence where anyone has identified the Federal Circuit Decision as a barrier or impediment to innovation. Which is exactly why Google is receiving such scant support from tech.
When you look at the Amici filing on Google’s behalf what’s noteworthy is not who did file, but who didn’t. If you take a quick look at the top 100 technology companies, exactly two of them filed briefs on Google’s behalf. If you look at the leading Silicon Valley-based companies, exactly none of them filed briefs on Google’s behalf. And among the major technology trade associations, same answer. Not one.
This becomes much more significant when you understand just how hard Google tried to get the technology industry’s support… but it was not forthcoming.
The impression that tech is supporting Google comes primarily from the fact that Microsoft and IBM submitted Amicus briefs on Google’s behalf. We suppose one could argue that the Computer and Communications Industry Association (CCIA) also purportedly represents tech, but that’s not entirely correct (more on them later).
We should start by saying that Microsoft and IBM are entitled to their opinions and Microsoft and IBM are both great partners and strong competitors of Oracle. But the fact is both Microsoft and IBM have commercial interests in this litigation that require a little context and perspective.
We address Microsoft, IBM and CCIA, in turn.
Let’s start with Microsoft, the original sinner.
First, let’s go back to U.S. v. Microsoft. We would encourage everyone to take a look at the Findings of Fact in U.S. v. Microsoft, in particular Microsoft’s anticompetitive conduct against Sun’s Java. Long before Google broke Java’s interoperability, Microsoft did exactly the same thing. Java’s “write once, run anywhere” innovation was antithetical to maintaining Microsoft’s barrier of entry to its Windows monopoly. So, it made just enough changes and created just enough dependencies that applications written in Sun-compliant Java wouldn’t run on Windows. In other words, they broke Java’s interoperability. Sound familiar?
Second, Microsoft actually filed an Amicus brief on Oracle’s side of this matter in 2013 before the Federal Circuit. Likewise, Microsoft’s primary trade association, the Business Software Alliance also supported Oracle’s side before the Federal Circuit on both copyrightability and on fair use.
It is essential to read Microsoft’s new brief. How does it reconcile its previous position with its new position? It doesn’t. On the critical question of the copyrightability of “interfaces” (which Microsoft previously supported) Microsoft is now completely silent. Instead, its new brief focusses exclusively on fair use. So, does Microsoft support Google’s position of picking and choosing which lines of software code are copyrightable and which are not? The entirety of the public record is clear that Microsoft is actually on Oracle’s side of this critical component of the case.
Third, let’s not forget that Microsoft itself was once among Google’s strongest antagonists. Remember Microsoft’s 2013 “Scroogled” ad campaign against Google? As Ad Age put it, “the commercials are hard hitting, beating up Google for everything from invasive ads in Gmail to sharing data with app developers to placing paid results on its search page. Google, the ads claim, is "Scroogling" its users, or exploiting their private data to maximize advertising profits.”
Then came 2015 and the commercial agreement between Microsoft and Google to partner on, among other things, intellectual property. What changed Microsoft’s stance in this litigation was that commercial agreement. Microsoft’s position is as principled as that.
Now to IBM, before there was Codebreak (Houston Astros) there was Jailbreak.
Let’s start with the fact that IBM was silent both times Oracle v. Google was argued at the Federal Circuit. No Amicus Brief from IBM whatsoever on either copyrightability or fair use. It’s not as if IBM wasn’t paying attention or lacked the resources to participate. Moreover, IBM is an active member of the Business Software Alliance which, as we stated, filed a brief on both copyrightability and fair use in favor or Oracle’s position at the Federal Circuit. No objection from IBM.
Next, let’s not forget that IBM has been working to control Java since Java’s inception. In fact, as reported in the New York Times, IBM had negotiated a deal to buy Sun for $7 billion which would, among other things, “give I.B.M. more strength in competing against Oracle” and of course would have given them control of Java.
In the end, that transaction didn’t quite work out for IBM because Oracle acquired Sun, which Sun concluded would be a far better fit.
Third, IBM spent years trying to undermine Sun’s stewardship of Java in a scheme known in the industry as “Jailbreak.” Oracle knows well IBM’s efforts here because we were part of the community. The “Jailbreak” initiative as IBM named it was meant to pressure Sun and its leadership into changing the licensing regime for Java to something which would give IBM more control and the ability to “fork” Java for its own commercial purposes.
Ultimately IBM abandoned Jailbreak because it fully understood that creating a fork of Java would require a license from Sun. We were there at the time. Unlike Google, IBM never argued that some code was copyrightable but other code was not. Unlike Google, IBM never thought copying Java was permissible under fair use. IBM knew full well it needed a license and as a result it abandoned the Jailbreak effort.
So, after sitting silent before the Courts for a decade, with a clear understanding of what is permissible and what isn’t, why does IBM all of a sudden decide this case “threatens to undermine and adversely impact a core aspect of IBM’s… business” when it hadn’t at any point in the past?
Because IBM just completed its blockbuster $34 billion bet-the-company acquisition of Red Hat, and is simply running out of time. The stakes are now higher and IBM really wants its own, non-compatible version of Java for its own commercial purposes. After failing to acquire Sun or to Jailbreak Java, IBM is now turning to the Supreme Court in a Hail Mary attempt to get the Court to give it the control it couldn’t achieve in the market.
Again, IBM is entitled to its opinion. But IBM has a long history with Java, and we shouldn’t confuse IBM’s commercial and competitive interests with a new-found interest in the proper balancing of copyright protection for software.
Lastly, let’s address CCIA.
It is hardly a secret that CCIA is completely beholden to Google, financially and otherwise. Now, we don’t want to throw stones, but in a town where “pay to play” is commonplace, CCIA really sets a whole new standard for transactional advocacy. CCIA was founded on the principles of competition and interoperability and was one of the main protagonists in U.S. v. Microsoft, and before that AT&T and IBM. So how does CCIA go from fighting for interoperability to defending Google who admittedly broke interoperability with Java?
This author knows a little bit about the governance of CCIA because Oracle used to support CCIA and I sat on its Board of Directors during this formative about-face. The first step was Microsoft simply wrote CCIA’s CEO a check for $10 million (for his personal benefit, not the organization). Then Google stepped in and is now one of CCIA’s primary financial backers.
On the substance, CCIA’s argument essentially boils down to the point that the U.S. legal framework for IP should be more like Europe. If we care about innovation, we can’t imagine why anyone would trade the U.S. system, the global leader in technology, for Europe’s system, the global laggard? But CCIA is entitled to its views.
With that background, is it really credible to say that when 98 of the top 100 technology companies are absent; when Microsoft and IBM have substantial parochial agendas; and when nearly all of the major technology advocacy groups are silent, that “tech” is on Google’s side?
The answer is of course no. There is no outpouring of support for Google’s views.
And the reason is that despite the sky is falling rhetoric, this case is fact bound. Google stole and copied verbatim more than 11,000 lines of software code. It is now trying to define its’ copying out of the Copyright Act or alternatively claim fair use.