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Blog

Kicking the Can Down the Road

Ken Glueck, Executive Vice President, Oracle—October 6, 2020

After facing off in court for more than a decade, tomorrow Oracle and Google will argue before the United States Supreme Court. We previously summarized the case here (Copyright Caveat Emptor). We made clear that Google’s conduct (theft) must be judged under the law as it is, not as Google would like it to be. We highlighted that Solicitors General from both the Obama and Trump Administrations filed briefs siding with Oracle, not Google. We catalogued how Google’s arguments are really based around policy and not the law. And we made clear that Google fully understood its copying was illegal but decided to “do it anyway,” because “the alternatives all suck.” 

Of course, Google’s unauthorized use of others’ intellectual property is not confined to Java, or to technology at all. Its dominant market position is built on the creative works of others across the creative spectrum. Indeed, the Songwriters Guild of America eloquently captured this dispute, and Google’s business model, in a single line: “There are untold riches in running the Internet of other people’s things.” 

Google’s self-serving approach to intellectual property is undeniably arrogant, but is it delusional? Not so far. 

Google has mastered the art of winning by kicking the can down the road. It can afford to play the long game. Deny every claim, appeal any adverse decision, run out the clock on every opponent—including government regulators. Even nominal “losses” for Google are really wins: It can appeal fines and courtroom setbacks for years while its market power continues to grow and competitors disappear. And even if it has to pay something in the end, it will be a drop in Google’s very large bucket. It’s “efficient infringement” at global scale. 

 

Why did Google steal Java from Sun?

Oracle has seen Google’s approach first hand. We have pursued Google in court for a decade for Google’s theft of Oracle’s Java technology. The facts of the case are now well known. Around 2005, Google had no offering in the mobile space just as an increasing share of internet search began to shift from traditional PCs to mobile devices. Facing an existential business threat—“we’ll be out of business in ten years,” as Google’s internal assessment put it[1]—Google needed its own mobile platform immediately. But Google was way behind companies like Blackberry, Apple, Nokia, and Microsoft. [2] 

Java was the solution. Building its new Android platform on Java gave Google three critical advantages. First, copying Java saved internal development time, enabling Google to get to market faster. Second, Java gave Android immediate credibility with both handset manufacturers and wireless carriers. Google had to convince these companies to adopt Android. Pitching a new mobile platform based on new, untested technology was not going to fly. Pitching a Java-based system would be a much easier sell, as Java was already widely used and trusted throughout the wireless industry.[3] Third, building Android on Java enabled Google to tap into the community of millions of Java application developers to quickly build the vast mobile app ecosystem needed to compete with Apple and others.[4]

Google knew it needed a Java license from Sun. Indeed, Google’s CEO at the time, Eric Schmidt, was a top engineering executive at Sun when Sun built Java in the mid-1990s. He knew both Java’s value and Sun’s licensing requirements. So did Google’s head of Android development, Andy Rubin. He had licensed Java from Sun to build an early smartphone, the T-Mobile Sidekick, at his prior company. Mr. Rubin personally attempted to negotiate a Java license for Android.

Those negotiations failed because Google was unwilling to agree to Java platform compatibility requirements. Google wanted to fork Java, breaking its fundamental “write once, run anywhere” principle. Sun would not allow this. Unable to get the license it needed, did Google change course, find alternative technical solutions, or build its own technology from scratch? No, none of the above.

Much like Congressional investigations,[5] a decade of litigation can provide a revealing look inside the corporate inner sanctum. Required disclosures of internal documents and sworn testimony shed light not just on a company’s operations, but also its values and culture. 

In Google’s case it’s not a flattering picture. Google’s misappropriation of Sun’s Java technology was not an accident. It was not the result of innocent missteps by witless or overzealous low-level folks. Mr. Rubin, Mr. Schmidt, and company founders Larry Page and Sergey Brin considered the options and made the call:

  • After negotiations with Sun broke down, Mr. Rubin informed Mr. Page and defined the choices: “we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language –or –2) Do Java anyway and defend our decision, perhaps making enemies along the way.”[6] They chose option 2.
  • When demoing Android at a pre-launch trade show, Mr. Rubin instructed his team to hide the ball: “don’t demonstrate to any Sun employees or lawyers.”[7]
  • Recognizing that Sun/Oracle might pursue legal action, Messrs. Page and Brin asked for an internal assessment: “What we’ve actually been asked to do (by Larry and Sergei) is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”[8] Of course Google never got the license. Instead, Google fought tooth and nail to keep this damning document secret under the guise of “attorney-client privilege.” Three different courts rejected that bogus claim.

“Old rules” still apply

These internal documents and many others like them are not just evidence of isolated bad judgment or ethical lapses. They reflect a world view in which intellectual property protections, especially copyrights, are inconvenient and costly barriers to Google’s exploitation of others’ creations. This is true for both Google’s unauthorized use of third party technology like Java to build and run its platforms and its unauthorized use of third party content like news articles, reviews, books, images, and songs to draw users to its ad-supported services.

Hyperbole? Exaggeration? Hardly. At the 2016 trial, Oracle’s CEO Safra Catz testified under oath about an interaction with one of Google’s top executives, in which he shared his view that “old rules” don’t fit Google’s special disruptive business model:

Q. Was there ever a time when, completely outside the context of this lawsuit, in a social setting you had an interaction with a Google executive about Oracle’s desire for Google to take a license?

A. Yes.  Actually I was at a Bat Mitzvah and—which is like a Bar Mitzvah, but for girls—and Kent Walker, their general counsel, came up to me and said, “You know, Safra, Google's a really special company, and the old rules don't apply to us.” And I immediately said, “Thou shalt not steal.”  It's an oldie but a goodie.[9]

The Supreme Court will hear argument in the case tomorrow. Google has urged the Court to ignore the “old rules”—the Copyright Act and decades of precedent—and make up new rules that will deny copyright protection to software code and dramatically expand the fair use doctrine. 

In August, the parties filed supplemental briefs addressing a very specific and—at least for those not steeped in the intricacies of constitutional law—esoteric procedural question regarding the standard of appellate review following a jury trial on the copyright fair use defense. The answer to that question is actually fairly straightforward (for lawyers), as explained here

Fair use is a mixed question of law and fact. An appellate court must assume that the jury resolved in favor of the verdict any disputed issues of historical fact supported by substantial evidence. The court then applies de novo (non-deferential) review to the lower court’s application of the law to the body of established facts. This procedural approach is not unique to copyright law. Notably, Google itself has acknowledged that the Court of Appeals “correctly stated” the well-established division of labor between the court and the jury.

In its August filing, however, Google has reversed course, perhaps hoping for a win on procedural grounds. Its desire to change the “old rules” and make new (weaker) copyright law through the courts notwithstanding, Google may well prefer that the Supreme Court side-step the substantive copyrightability and fair use issues in this case. Close scrutiny of its arguments and the evidentiary record on those core issues doesn’t help its cause, as the Court of Appeals and the U.S. Solicitors General in both the current and previous administrations have explained, here, here, and here.   

Beyond the details of the wonky procedural question, Google’s newfound affinity for the absolute sanctity of jury verdicts is strikingly selective. It was more than happy to have the district court negate the first jury’s infringement verdict, urging the court to deny any copyright protection to the Java code. But it considers the second jury’s fair use verdict sacrosanct, even though the undisputed evidence cuts against Google on the statutory fair use factors.

In the end, the answer to the procedural question shouldn’t make a difference in the case’s outcome. Even if the standard of appellate review was higher (it is not), the Court of Appeals explicitly and unanimously applied that standard, finding that “no reasonable jury” could have ruled in Google’s favor based on the evidentiary record. In other words, it was not a close case. The Court of Appeals decision stands up under any standard, as the Solicitor General and others have noted, citing the “overwhelming” evidence against fair use.

We should know the Supreme Court’s answer next year. Win or lose, Google will no doubt keep right on kicking the can down the road. It’s worked so far.

 

[1] Trial Ex. 370.

[2] Trial Ex. 31.

[3] Trial Exs. 158, 387, 5586.

[4] https://www.ipwatchdog.com/2020/08/05/google-v-oracle-perspective-googles-android-cheat-code-copy-oracles-code/id=123789/

[5] https://www.nytimes.com/2020/08/04/opinion/amazon-facebook-congressional-hearings.html?searchResultPosition=4

[6] Trial Ex. 7 (10-11-05 email from Andy Rubin to Larry Page).

[7] Trial Ex. 29 (3-24-08 Rubin email)

[8] Trial Ex. 10 (8-6-10 email from Tim Lindholm to Andy Rubin)

[9] Oracle v. Google trial transcript, May 17, 2016, at 1363. Notably, the court invited Google’s counsel to put Mr. Walker on the stand if he wished to dispute this testimony. He declined.