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Redwood Shores, Calif.—Feb 19, 2020
A wide array of individuals and organizations from across technology, arts and culture, government, advocacy, and academia filed amicus briefs this week supporting Oracle in the Supreme Court. This diverse group is speaking out to defend copyright protection and to reject Google’s attempts to excuse its theft of more than 11,000 lines of Oracle’s original code.
Commenting on the briefs, Oracle General Counsel Dorian Daley said: “Google is attempting to rewrite the fundamental copyright protections that fuel innovation in this country. The amicus briefs make clear that to avoid significant consequences well beyond the software industry, Google’s self-serving arguments and attempts to rewrite long-settled law must be rejected.”
The fallacies in Google’s arguments, as well as additional context about the case are set forth in Executive Vice President Ken Glueck’s recent blog posts about the importance of copyright protection and the absence of support for Google’s position in the technology community.
Excerpts from the amicus briefs filed today upend Google’s claim that upholding the current ruling and existing law will crush innovation in the software industry. As the briefs demonstrate, that stance is not just inaccurate – the reverse is true.
“Google wields a variety of weaponized copyright exceptions on top of rhetoric that is both deceptively public-spirited (letting Google win is “promoting innovation”) and ominous (impeding Google would “break the internet”). Google further seeks to justify these exceptions by trying to hide behind small players. It engages in astroturfing tactics to give the impression that it has more public support than it does.” (Songwriters Guild of America, pp. 16-17) (unless otherwise noted, all emphasis is added)
“[W]hat is good for Google is not synonymous with what is good for the public. […] In fact, a ruling for Google would be “promoting” software innovation only in that the purported “innovation” would be furthering Google’s private interest—i.e., using works without permission or a license fee.” (Songwriters Guild of America, p. 32)
“No reasonable person would invest resources in creating an original work if another person could lawfully extract material portions of that work and incorporate them into a marketplace replacement.” (Internet Accountability Project, p. 4)
Oracle’s code was undoubtedly creative and copyright protected.
“Google has appointed itself the world’s ‘organize[r]’ of other people’s information…and in this case it copied verbatim substantial amounts of Oracle’s software to do so.” (Internet Accountability Project, p. 1)
“[M]ore than enough creative choices were made by [Oracle’s programmers] in creating the 7,000 lines of declaring code…to satisfy the copyright requirements.” (Interdisciplinary Research Team on Programmer Creativity, p. 19)
“[I]t is clear that there were thousands of different ways [that Oracle’s] APIs could have been written when they were created . . . [and] that they are protected from copying by the Copyright Act.” (Interdisciplinary Research Team on Programmer Creativity, pp. 19-20)
Google could have licensed Oracle’s software but chose to copy it instead.
“The inconvenience of not copying does not excuse copying.” (American Conservative Union, p. 14)
“Google and its amici seek to establish a rule of general applicability in the software industry that will justify future unauthorized copying whenever it saves the copier time and money.” (American Conservative Union, p. 18)
“Google asserts [that its] choice to copy proves that Google had no choice other than to copy. Yet Google’s assertion that it “reused” the declarations “only because it had no other choice,” finds no support in the record. The obvious other choice was licensing.” (American Conservative Union, p. 12)
“Through YouTube, Google profits directly from verbatim copies of Amici’s own works. These copies are often unauthorized, unlicensed, and severely undermonetized.” (Songwriters Guild of America, p. 26)
The argument that Google’s use was protected by exceptions to the copyright laws falls flat.
“This brazen commercial use in competition with [Oracle] and the indisputable harm to the market doom [Google’s] fair use claim.” (Copyright Thought Leaders, p. 21)
“Google’s verbatim copying of Oracle’s code for use in the Android platform had a measurable negative impact on Oracle’s bottom line. Under existing law…such use of another’s work is categorically not ‘fair.’” (Internet Accountability Project, p. 3)
“[Google] has done nothing that qualifies as transformative. [Google] engaged in verbatim copying to use the copied code in commercial competition with others who either licensed the works or avoided infringement by applying their own creativity to write different code to perform those functions.” (Copyright Thought Leaders, p. 20)
“Google and many of its amici seek to upend [the] well-ordered system of private property rights in software through either an unworkably complex, nearly metaphysical, interpretation of copyrightability of software, or a broad “fair use” exemption, both based on some conjured up “special status” as players in the software industry.” (American Conservative Union, p. 4)
This case threatens copyright protection across the board.
“Copyright is, in fact, of existential importance to…creators, who would be utterly lacking in market power and the ability to earn their livings without it.” (Songwriters Guild of America, p. 3)
“It is not empty rhetoric to say that without the statutory and constitutional protections of copyright, professional creators could not earn their livings and simply would not produce new works, and the world would be poorer for it. The reason is simple but profound: copyright protection allows for a vibrant creative environment in which artists can predictably recover the gains of their creative labors.” (Songwriters Guild of America, p. 5)
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