Whether it is consumers’ data or competitors’ code, Google’s view seems to be the same: What’s mine is mine, and what’s yours is mine.
Google’s senior vice president for global affairs, Kent Walker, argued in his April 24 opinion piece in The Hill, “Google exec: Supreme Court should rule on a risk to innovation,” that the Supreme Court should “weigh in on a defining battle of the digital era.”
There are many “defining battles” of the digital era — 5G, Artificial Intelligence (AI), autonomous devices — but Oracle v. Google is surely not among them. Walker’s arguments materially misstate the facts and are wildly out-of-sync with the importance of copyright globally.
Let’s start with intellectual property. Only in Google’s world does weaker intellectual property protection lead to more innovation. It is settled in law and in economics that the opposite is true. And at a time when the U.S. is circling the globe to enhance the protection of U.S. intellectual property — including strong copyright protection — Google takes the opposite view. Walker believes this case, and his advocacy for weaker copyright protection, defines the future of American software innovation.
He then warns that unless the Supreme Court acts, the U.S. technology industry is about to get wiped out. This is a view that only presents itself in Google’s legal filings and the filings of its amici. There is not a shred of real-world evidence that innovators are not innovating because of the federal circuit court decision in Oracle v. Google.
In fact, the opposite is true. In the years since Oracle v. Google, software-fueled machine learning and artificial intelligence have exploded. The entire software-driven gig economy was born. The cloud has completely transformed consumer and business computing. We are on the brink of a software-driven autonomous revolution. Mobile has transformed the way we work, shop and interact. Social has changed everything. Virtual reality and massively multiplayer online games, the Internet of Things (IOT), software-defined networking, quantum computing and 5G telecommunications are on the verge of delivering the next generation of technological innovations.
Undeterred by the federal circuit court, Google spent nearly $23 billion last year on R&D. If there is any nexus between the federal circuit court’s decision and innovation, one can only conclude that it has been an extraordinarily positive one for innovation.
In a stunning what’s-up-is-down and down-is-up statement, Walker attempts to wrap Google in the cloak of interoperability. Java defined the era of interoperability with its “write once, run everywhere” architecture. It was Google that copied Java, built Android around it, and altered it so it was only interoperable with itself (i.e., write once, run only on Google). Android killed Java interoperability, and now Google argues that killing interoperability is good for interoperability?
Those facts are not in dispute. The only issue in dispute is Google’s assertion that its actions were all “fair.” On this point, the federal circuit court clearly analyzed and methodically decided against Google’s fair-use defense. This makes sense because, under no interpretation of fair use, may you copy a competitor’s software code and turn around and compete against that competitor in the marketplace. Hard stop.
What’s missing from Walker’s opinion piece is any legal support for the Supreme Court to grant cert. The Supreme Court already has denied cert on the question of copyrightability in this matter after receiving a thorough analysis from the U.S. Department of Justice’s solicitor general, who sided with Oracle.
There is no matter of law in question, nor is there a conflict among circuit courts. Google was caught killing interoperability and is now trying to concoct a new “we are too important” legal defense.
Kenneth Glueck is an executive vice president at Oracle, the multinational technology company based in Redwood Shores, Calif. He directs Oracle’s Washington offices.
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