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Copyright Caveat Emptor

Ken Glueck, Executive Vice President, Oracle—Feb 12, 2020

Today, Oracle submitted our response brief before the United States Supreme Court in Oracle v. Google. Over the next few weeks, we will post short blogs regarding our decade-long litigation against Google’s theft of Java software. We will make our legal arguments before the Supreme Court in March. Here, we will try to set the record straight on the facts and policy, which have been wildly distorted by Google and its PR machine led by Google’s head of Global Affairs and Chief Legal Officer, Kent Walker.

It is noteworthy that United States Solicitor General Noel Francisco will file a brief and argue at the Supreme Court hearing on Oracle’s behalf. It is also noteworthy that President Obama’s Solicitor General Don Verrilli also filed a brief with the Supreme Court in 2015 on Oracle’s behalf, confirming that strong support for copyright is not a question of political ideology nor is it a particularly controversial part of the law.

There will also be numerous Amicus Briefs filed shortly on the side of strong copyright protection for expressive and creative works including computer software. One brief, filed by the Songwriters Guild will state: “There are untold riches in running the Internet of other people’s things.” Only a songwriter could so eloquently capture the essence of this case, and Google’s business practices. We wish we would have thought of that line ourselves, but we didn’t, so we repeat it here (with credit and permission).

Before we get to the facts of the case, we need to start with what Google actually does for a living, which isn’t always well understood. Google is an advertising company. Period. Sure, it uses technology to facilitate its advertising and data collection, but nearly all of its money—and its nearly $1 Trillion market capitalization—comes from plain old-fashioned advertising. Think Don Draper, not da Vinci. The fact is, the fewer constraints placed on other people’s innovations, creations or content, the more money Google makes. While weak protection for content might be great for Google’s bottom line, it is antithetical to everything we know about how to promote innovation, creativity, and growth in the United States.

In this country, protection of intellectual property is the unassailable driver of our economic prosperity. Confiscatory or overly permissive IP regimes that depend on trying to copy or appropriate others’ innovations inevitably lead to technological stagnation, which helps explain why despite massive state subsidies, China remains a follower in software. As others have said, “strip mining intellectual property is not a road to growth.” And we should be cautious about taking copyright input from a company whose entire business model is based on monetizing other people’s property.

Yet, this is exactly the argument we see with Google’s appeal to the Supreme Court. Google is asking the Supreme Court to recast bedrock and long-standing IP principles for its own narrow self-interest. It casts its appeal as a defense of the innovation economy; it portrays itself as the protector of interoperability; it constantly misrepresents what is meant by software interface (which is fact-bound in this case); and redefines “fair use” to include nearly all commercial copying. It pretends that more than 11,000 lines of software code is something other than “software”. It ignores the fact that Google conceded it killed—not enabled—interoperability in Android. And it actually argues with a straight face that verbatim copying for use in one of the world’s most successful commercial products—Android—was meant to be covered by fair use, meaning the exception now truly eats the rule.

Google then conjures an innovation narrative that attempts to redefine the past decade as one of stagnation and economic decline, when in fact this past decade may be the most innovative on record, defined by advancements in software, networking and interoperability. Cloud, 5G, artificial intelligence, machine learning, quantum, mobile, autonomy, blockchain have all exploded at precisely the time Google claims this case is killing innovation. Growth in software is at an all-time high. In fact, notwithstanding the arguments of Google and its allies, there is not a scintilla of evidence suggesting that anyone actually believes Oracle v. Google impacts innovation. Oracle v. Google stands for the simple proposition that stealing—no matter the convenience it may offer to the thief—is not acceptable.

Most troubling, Google has spent tens of millions of dollars propagating its view of the world through law schools, think tanks and paid so-called opinion leaders, none of which seem to acknowledge that the advertising elephant driving all of this is sitting right in the room. There is nothing altruistic about Google’s decades-long assault on intellectual property protection. It’s only about Google’s self-interest … and money. And whether it’s authors, musicians, moviemakers, or publishers, Google has used its market power and vast resources to essentially outrun, outlast, and outspend copyright holders.

Until now.

Let’s review the facts as they occurred and not permit Google to engage in historical revisionism to serve its own interests.

  1. 1. Google was last to the mobile market, behind Apple, Microsoft, Blackberry, Nokia, and a number of other start-ups like Danger, which had created the T-Mobile Sidekick. Google understood that search and advertising were moving from desktop to mobile and it needed to be a major player in the mobile market, or it would lose its advertising golden goose.

  2. 2. Google could have built a platform from scratch to compete with Windows Mobile, Apple iOS, or Blackberry, as those companies did, but given its late start it didn’t have the time to spend writing a new platform and convincing independent developers to embrace it. So Google turned to Sun Microsystems and Java. Java at the time was revolutionary. It was wildly popular, “open,” and practically the definition of interoperable. It was democratizing computing by enabling developers to “write once, run anywhere.” It was developed by Sun. And, yes, it was protected by copyright and licensed to other companies.

  3. 3. Java was made available by Sun under a number of licensing options, including an open source license, a specification license and a commercial license. Developers could of course develop applications using Java with no license at all. Platform and device makers who wanted to run those Java applications licensed Java for their products. A virtual who’s who of technology companies licensed Java under one of those three regimes. Of particular note, Danger, run by Andy Rubin (who was later hired by Google to run Android) had licensed Java for his company’s T-Mobile Sidekick—a popular early smartphone.

  4. 4. Google could have taken a license for Java as well, but it had a problem. It wanted to use Java because of its popularity among app developers, but it did not want interoperability and it didn’t want open source. It wanted to turn “write once, run anywhere” into “write once, run only on Android.” Google certainly didn’t want applications written for Android to be easily portable to Windows, Apple, or any potential new entrant to the market.

  5. 5. Google evaluated the alternatives to Java and decided they “all suck.” So, it decided to steal Java anyway even if it meant “making enemies along the way.” It went ahead and copied verbatim more than 11,000 lines of Java software code and expropriated it for its own clearly commercial use.

  6. 6. Google understood exactly what it was doing. In addition to the new head of Google’s Android division, Andy Rubin, who had licensed Java when running Danger, Google’s CEO was Eric Schmidt. Mr. Schmidt was of course the Vice President of Software at Sun during Java’s development.

  7. 7. What’s even worse than the harm caused to Sun by stealing Java, Google immediately executed its plan to kill interoperability, also harming millions of developers who counted on Java interoperability to lower the costs of app development.

Google then went straight to the “catch me if you can” chapter of its playbook, assuming that Sun would never stand up to Google’s theft. They were mistaken.

Given Google’s problem with the undisputed facts, during the intervening decade, Google has exercised every bit of its vast resources to attempt to change the law retroactively, to little avail. Since it is not in dispute that Google copied verbatim more than 11,000 lines of code, it attempts to carve this code out of copyright by claiming this particular code is not copyrightable in the first place.

In page after page of policy arguments in its brief, Google asks the Supreme Court to draw some ill-defined line between a made-up category of source code it calls “interfaces” and other source code. Google’s problem is that the Copyright Act makes no such distinction, and policy makers around the world have largely rejected Google’s views and have opted for the status quo, which protects all software code under the Copyright Act. Most policy makers fully understand that Google’s interests are far afield from the interests of actual innovators and creators.

As if Google’s views on copyrightability are not brazen enough, Google then attempts to claim that its theft and clear commercial use of an existing technology already in the market is somehow covered by the fair use doctrine. Such a proposition based on these facts would virtually eliminate copyright altogether because nearly all copying would be “fair”.

Then Google takes us down a road of made up doctrines pulled out of thin air, leaving us with a wall covered in spaghetti. One of the most extraordinary is the concept that the more popular a work is, the less copyright protection it deserves because its free availability would be in the public interest. Seriously? That is closely followed by the bizarre concept that it is standard practice in the industry to freely copy other innovators’ source code. This appears to be the doctrine of “everyone does it.” In fact, what everyone does is safeguard their innovations with intellectual property protections, which most often result in incentives to work cooperatively with mutually beneficial licensing regimes. We then get a dose of the “convenience” principle which, if we even understand their point, goes something like, “we only did it for the convenience of others,” painting itself as something of a Sir Robin of Software. Last, we are told that innovators who are granted constitutional and statutory “monopolies” to their innovations are … wait for it … monopolists. Those living in glass houses shouldn’t throw kettles.

But the most insulting argument Google makes is to paint itself as the standard bearer for openness and interoperability, which is historical revisionism at its finest. Sun, and the thousands of engineers who participated in the development of Java, stood for openness and interoperability. Oracle has maintained that principled stance. Java is among the most important software innovations in history. Google stole it, broke interoperability, baked it into its proprietary, tightly controlled Android operating environment, and has made tens of billions of dollars on the back of Sun’s revolutionary innovation.

Leading us back to where we started: “There are untold riches in running the Internet of other people’s things.”

Next week we will address Google’s Amicus Briefs.