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Ken Glueck, Executive Vice President, Oracle—Feb 20, 2020
NOTE: Before we turn to the more than 30 amicus briefs filed in support of Oracle at the Supreme Court, we are obligated to highlight the conduct of Google’s head of Global Affairs and Chief Legal Officer, Kent Walker. Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle’s behalf to persuade them to stay silent. We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts.
In our previous posts we detailed the facts in Google v. Oracle: Google copied verbatim 11,000 lines of Java code and then broke Java’s interoperability. We explained that Google knew fully that the Java code was subject to copyright but decided to copy it anyway and “make enemies along the way.” We discussed IBM’s Jailbreak initiative, which was aborted because everyone understood—including Google and IBM—that Sun’s code was subject to a copyright license.
We explained how there was never any confusion in the industry about how copyright was applied to software and no contemporaneous discussion whatsoever distinguishing between some code that’s copyrightable and other code that isn’t. All of this parsing of code was invented after the fact by Google. We discussed the impossibility of the Supreme Court drawing lines between some code and not other code (on a case-by-case basis), without undermining copyright protection for all computer programs, which is exactly Google’s intent. Lastly, we explained that Google’s business model is predicated on monetizing the content of others so its economic interests are correlated to weak intellectual property protection. And that is exactly why most members of the technology community declined to file briefs on Google’s behalf.
More than 30 businesses, organizations, and individuals filed amicus briefs with the Supreme Court. The numerous amicus briefs filed on our behalf largely reflect actual owners of copyrights that have a direct stake in the outcome of this matter, and I wanted to highlight a few of them here. Most importantly, the totality of the briefs make an overwhelming case for the court to reject Google’s attempt to retroactively carve itself out of the law.
To start, the United States Solicitor General filed a brief in support of Oracle on behalf of the United States Government. The Solicitor General’s office will also participate in oral arguments before the Supreme Court, making clear that longstanding U.S. intellectual property policy is fundamentally at odds with Google’s position. It’s really hard to overstate how strong the Solicitor General’s brief is on Oracle’s behalf. For example, the SG states “Contrary to [Google]’s contention, the Copyright Office has never endorsed the kind of copying in which [Google] engaged." … "[Google] declined to take [the open source] or any other license, despite 'lengthy licensing negotiations' with [Oracle]. Instead, [Google] simply appropriated the material it wanted." And, “[T]he fair use doctrine does not permit a new market entrant to copy valuable parts of an established work simply to attract fans to its own competing commercial product. To the contrary, copying ‘to get attention or to avoid the drudgery in working up something fresh’ actively disserves copyright’s goals.”
“[Google’s] approach [to copyrightability] is especially misguided because the particular post-creation changed circumstance on which it relies—i.e., developers’ acquired familiarity with the calls used to invoke various methods in the Java Standard Library—is a direct result of the Library’s marketplace success.” The SG continued, “Google designed its Android platform in a manner that made it incompatible with the Java platform. Pet. App. 46a n.11. Petitioner thus is not seeking to ensure that its new products are compatible with a ‘legacy product’ (Pet. Br. 26). Petitioner instead created a competing platform and copied thousands of lines of code from the Java Standard Library in order to attract software developers familiar with respondent’s work.”
And the SG stated, “The court of appeals correctly held that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was not fair use.” Lastly, “the record contained ‘overwhelming’ evidence that petitioner’s copying harmed the market for the Java platform.”
A brief by several songwriters and the Songwriters Guild explains that much like Oracle’s Java software, a large portion of music streams on YouTube are misappropriated for the good of Google and Google alone—“Through YouTube, Google profits directly from verbatim copies of Amici’s own works. These copies are unauthorized, unlicensed, and severely under-monetized.”
A brief filed by Recording Industry Association of America, National Music Publishers Association, and the American Association of Independent Music makes clear that its “members depend on an appropriately balanced fair use doctrine that furthers the purposes of copyright law, including the rights to control the reproduction and distribution of copyrighted works, to create derivative works, and to license the creation of derivative works.”
Briefs were filed expressing similar concerns from a broad spectrum of the creative community, including journalists, book publishers, photographers, authors, and the motion picture industry. Google’s attempts to retroactively justify a clear act of infringement with novel theories of software copyright and fair use have alarmed nearly every segment of the artistic and creative community.
Another amicus brief from the News Media Alliance (over 2,000 news media organizations), explains how Google Search, Google News and other online platforms appropriate vast quantities of its members’ journalistic output, and reproduces it to displace the original creative content. They point out that, as journalists, they often sit on both sides of the “fair use” defense, but warn that they “cannot stand silent when entire digital industries are built, and technology companies seek to achieve and maintain dominance, by the overly aggressive assertion of fair use as Google does in this case.”
And USTelecom, the national trade association representing the nation’s broadband industry, including technology providers, innovators, suppliers, and manufacturers. USTelecom notes that its members are poised to invest $350 billion in their software-driven networks over the next several years, laying the foundation for 5G. Software interfaces are also important for network providers to “enable interoperability among technologies, networks, and devices,” and “while telecommunications providers must share access to their software interfaces, they also must retain their exclusive property rights in their implementation of these interfaces if they are to ensure network security and resiliency, protect their customers’ privacy, innovate and compete.”
We were pleased that some of the most prominent names in technology—who were contemporaneous witnesses to Google’s theft—have filed amicus briefs in support Oracle’s position, including Scott McNealy, the longtime CEO of Sun Microsystems, and Joe Tucci, the longtime CEO of EMC Corporation. Mr. Tucci states, “as the numbers and ever-increasing success show, the system is working. Accepting Google’s invitation to upend that system by eliminating copyright protection for creative and original computer software code would not make the system better—it would instead have sweeping and harmful effects throughout the software industry.”
Several of our amici note in their briefs that the Constitution includes copyright protection in Article I, Section 8. As Consumers’ Research explains in their brief, “to the Founders, copyrights were not just a way to encourage innovation, but also to protect people’s inherent rights in the fruits of their labor. Any conception of copyright that ignores the latter is both incomplete and inconsistent with the original understanding of the Copyright Clause.”
One of the key points Oracle makes in our brief to the Court is the clear Congressional intent and action to provide full copyright protection to software, and the longstanding refusal by Congress to create any distinctions between different types of software code (such as “interfaces”).
Several of our amici reinforce this fact, none less authoritative than the former Senate and House Judiciary Chairmen. Former Senators Orrin Hatch and Dennis DeConcini, and former Congressman Bob Goodlatte make it clear that Google’s invitation to the Court to carve out some ill-defined category of “interfaces” from the Copyright Act’s full protection of all software code is contrary to the intent of Congress and plain language of the statute. According to the former Chairmen, “[B]oth the text and history of the Copyright Act show that Congress accorded computer programs full copyright protection, with no carve-out for some undefined subset of software.”
Furthermore, the former Members state, it would be beyond the purview of the Court to respond to Google and its amici’s policy arguments in favor of creating new standards of copyrightability and fair use for different, loosely defined categories of software. “This Court should not undermine [Congress’s] legislative judgment … by creating the loopholes to copyrightability and fair use that Google requests.”
The Members further point out, “to the extent that Google has a different, less-protective vision for the federal copyright regime, it is ‘free to seek action from Congress.’ (quoting the Solicitor General). Thus far, Congress has not seen fit to take such action, notwithstanding its recent comprehensive review of the federal copyright laws, which directly examined the scope of copyright protection and technological innovation. This Court should not diminish copyright protections for computer programs where Congress, as is its constitutional prerogative, has chosen to refrain from doing so for four decades.”
The Members’ points are given further emphasis by the extremely important brief from Professor Arthur Miller, who was a Presidential appointee to the National Commission on New Technological Uses of Copyrighted Works (“CONTU”), where he served on the Software Subcommittee. Professor Miller forcefully rebuts Google’s contention that the Java code it copied should be denied protection either because it was so popular or because it was in some category of un-protectable software it refers to as “interfaces.”
Congress had good reason not to enact a popularity exception to copyright. As an initial matter, such an exception would lure the courts into a hopeless exercise in line-drawing: Just how popular must a work become before the creator is penalized with loss of protection?… Nor does calling the copied material an “interface” aid in the line-drawing exercise. Though that term “may seem precise * * * it really has no specific meaning in programming. Certainly, it has no meaning that has any relevance to copyright principles.” (citing his seminal Harvard Law Review article on software copyright). “Any limitation on the protection of ‘interfaces’ thus would be a limitation on the protection of much of the valuable expression in programs, and would invite plagiarists to label as an ‘interface’ whatever they have chosen to copy without permission.” Ibid. More importantly, a popularity exception would eviscerate the goal of the Copyright Act, which is to promote advancements. “The purpose of copyright is to create incentives for creative effort.” Sony v. Universal City Studios. But advance too far and create widely desired work, petitioner warns, and risk losing copyright protection altogether; anyone will be able to copy the previously protected material by claiming that doing so was “necessary.” That logic is head-scratching. “[P]romoting the unauthorized copying of interfaces penalizes the creative effort of the original designer, something that runs directly counter to the core purposes of copyright law because it may freeze or substantially impede human innovation and technological growth.” (citing Miller Harvard Law Review article).
This history of strong copyright protection is further explained in the brief by the Committee for Justice: “The framers of the U.S. Constitution designed that document to protect the right to property. It was understood that strong property rights were fundamental to freedom and prosperity. The Constitution’s Copyright Clause is a critical part of this project. The clause empowers Congress to enact laws to protect intellectual property, which was understood to be worthy of protection in the same sense and to the same degree that tangible property is. Congress has taken up the task by enacting a series of Copyright Acts that have steadily expanded the protection afforded intellectual property. This, in turn, has led to a robust and thriving market for intellectual property.”
Likewise, the American Conservative Union Foundation, Internet Accountability Project, and American Legislative Exchange Council all recount the long history of copyright protections, going back to the Constitution, and the importance of maintaining a system of strong intellectual property rights. They also weigh-in against Google’s fair use defense.
Similarly the Hudson Institute makes the point that if the Supreme Court were to adopt Google’s breathtakingly expansive view of fair use, it would “provide a roadmap to foreign actors like China to circumvent U.S. and international copyright protection for computer code and other works. Such a roadmap, if adopted by this Court, will remove the brighter lines and greater clarity provided by the decision below, and would eliminate a significant tool for private and governmental enforcement of IP rights.”
In separate briefs, two large software companies, Synopsys and SAS Institute, explain how the use of software code and “interfaces” actually work in the real world. Synopsis explains that the purpose of its brief is “to challenge the notion, offered by Google and its amici, that the copying of someone else’s code is a mainstay of the computer programming world. It is simply not true that ‘everybody does it,’ and that software piracy allows for lawful innovative entrepreneurship, as Google suggests.
SAS takes head-on the absurdity of Google’s professed interest in “interoperability” as the pretense for its unlicensed use of Oracle’s code. “Google copied the software interfaces not because it wanted Android applications to interoperate with Java, but so it could attract Java programmers for Android to replace Java. ‘Unrebutted evidence’ showed ‘that Google specifically designed Android to be incompatible with the Java platform and not allow for interoperability with Java programs.’ (citing Fed. Circuit decision). No case has found fair use where the defendant copied to produce an incompatible product.”
SAS also provides a powerful rebuttal to Google’s request for the Court to create new judicial carve-out from the Copyright Act for software “interfaces.” “There are unlimited ways to write interfaces, and nothing justifies removing them from what the Copyright Act expressly protects. To the contrary, the user-friendly expressive choices Sun made became critical to Java’s success. The thousands of lines of Java declaring code and the organization Google copied are intricate, creative expression. … The creativity is undeniable. ‘Google’s own ‘Java guru’ conceded that there can be ‘creativity and artistry even in a single method declaration.’” (citing Fed. Circuit decision) SAS goes on to provide detailed examples of the creative expression in declaring code.
I’ll conclude with the powerful brief of the former Register of Copyrights, Ralph Oman. Mr. Oman forcefully rebuts the “sky is falling” rhetoric of Google and its amici regarding copyrights and software.
Copyright protection has spurred greater creativity, competition, and technological advancement, fueling an unprecedented period of intellectual growth and one of America’s greatest economic sectors today—software development. While Congress is of course free to revisit the application of copyright to software if it believes changes to the current regime are warranted, there is no basis for this Court to assume that policymaking role here. Instead, this Court should give effect to Congress’s intent, as embodied in the 1976 Act and its subsequent amendments, that traditional copyright principles apply to software just as these principles apply to other works. Applying those principles to the record in this case, the Federal Circuit properly concluded that Google’s conceded copying of the APIs infringed Oracle’s copyrights. While the technology at issue may be novel, the result that such free riding is not allowed is as old as copyright law itself.
We are grateful for this diverse, influential group of more than 30 amici, which we are certain will provide important, valuable insight to the Court in its deliberations.
We know that many of them have spoken up despite Google’s campaign of intimidation, which makes us even more appreciative.