January 3, 2020 at 5:00 am ET
Intellectual property, including copyrights and patents, is at the heart of the American spirit. The founders of our republic instilled in the Constitution itself the imperative that exclusive rights in intellectual property will “promote the progress of science and the useful arts.” President George Washington used the very first State of the Union Address to exhort Congress to enact a federal copyright law, and the very first Congress did so. Their vision has paid dividends beyond what they could possibly have imagined: Intellectual property-intensive industries contribute $6.6 trillion to our economy and support employment of over 45 million Americans.
So it makes perfect sense that when foreign governments fail to prevent theft of American intellectual property, the Trump administration levies tariffs against them. But what happens when the violations are homegrown?
In building its famous Android platform for mobile devices, Google copied over 11,000 lines of computer code known as Java application programming interface. But that hasn’t stopped the company from litigating the case through two appeals to the Federal Circuit, both of which it lost, and now to the Supreme Court.
Google could have gotten permission to use that code. The copyright owner, Oracle, offers licenses for Java API to many different companies and offered it to Google on the same terms. But Google wanted a proprietary system for Android phones, and Oracle’s license said it had to be open-source. Google could also have written its own version, just like Apple did for iPhones and Microsoft did for Surface devices. But Google needed it fast because it needed to catch up to Apple, which came out with the first smartphone and caught Google flat-footed. This is precisely the type of free-riding shortcut copyright law is designed to prevent.
Now Google is trying to convince the Supreme Court to overlook all this and let it off the hook. In Google v. Oracle, the company argues that the API software should be denied the normal protection afforded by copyright law because of its useful functions.
Imagine if an advertiser could use someone else’s music without permission because it made the commercial really cool. What if one author could copy an entire chapter from someone else’s book because it was helpful? Copyright exists to allow authors and artists who produce creative works — whether those works are music, books, or computer code — to be able to make a living from their creativity. That provides the incentive and financial freedom to create more works: a virtuous cycle of cultural and economic growth. If Google’s “copy now, litigate later” approach pays off, it will dangerously weaken the fundamental incentives the founders envisioned.
This case will even have international ramifications. If our law is so weak that it does not guard against outright copying for massive commercial use, the United States could be violating numerous treaties and agreements, including the new U.S.-Mexico-Canada Agreement the Trump administration is so proud of.
Further, other countries are watching. If the United States doesn’t live up to its own promises and rhetoric, how much better are we than the countries on which we impose sanctions? You can be certain those countries will throw it right back in the face of our trade negotiators.
The Supreme Court will have the opportunity to set this right when it decides this case. The outcome will do far more than merely resolve a dispute between to technology companies. It will set critical standards for copyright in the United States and be looked to throughout the world. Let’s hope the justices see clearly enough to sustain the founders’ vision of the benefits to all from an effective copyright system.
Steven Tepp is president & CEO of Sentinel Worldwide, where he represents clients with vested interests in the protection of intellectual property, and is a professorial lecturer in law at George Washington University Law School.
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