When is “fair use” really theft? That seems to be the question at the heart of the upcoming copyright case, “Google v. Oracle America.” Due to the lawsuit’s significance for the future of intellectual property in the digital age, legal experts have called it the “Copyright Case of the Century.” And now, the Supreme Court has agreed to decide the suit.
In 2010, negotiations collapsed between Google and Sun Microsystems over the licensing of Java. In response, Google chose to replicate a substantial section of Java’s API code —the portion of code that allows for interoperability between software systems—notwithstanding the program’s copyright protections. Oracle then sued the search engine company for copyright infringement. In its defense, Google claimed that it had acted in accordance with “fair use” and that its copying wasn’t illegal.
While the case is scheduled to be heard on March 24, 2020, lingering questions regarding fair use remain. Specifically, what is fair use, and how does it relate to APIs?
Fair use is a common defense against legal claims of copyright. Essentially, the legal system permits brief excerpts of copyrighted material to be replicated without the permission of the copyright holder, but only under limited circumstances. And using the “fair use” defense, Google is attempting to claim that its copying of Java’s APIs is permissible. Of course, Java denies.
So, who’s right? Did Google commit what amounts to intellectual property theft? Or did they simply engage in “fair use” of what some argue is a resource in the public domain? Interestingly, the answer to this question can be found in the most unlikely of perspectives—the Obama administration’s own.
In a 2015 amicus brief discussing Google v. Oracle, the Obama administration wrote specifically on the issue of fair use and copyright. In the brief, administration officials dismissed Google’s claims to fair use and made the compelling argument that precedent clearly establishes APIs are protected under copyright. “Despite the inherently functional character of all computer code,” the brief argued, “the Copyright Act makes clear that such code can be copyrightable.”
The administration’s reasoning in this instance is sound. For copying to be considered as “fair use,” courts have typically held that the replication of particular information must be “transformative” in nature. Most often, that means that the copier used the information for the purpose of “commentary and criticism” or “parody.” In in the case of Java, though, neither of those parameters apply. Google didn’t transform Java’s code—it merely replicated it wholesale to gain a competitive advantage.
But if the Supreme Court were to rule in favor of Google in the case, it would be sanctioning that type of behavior on an industry-wide scale. Any business that relies upon IP protections for APIs would be threatened, as the precedent the court established would effectively permit the non-transformative replication of code across the entire industry. What’s more, the loose interpretation of “fair use” could have massive implications for innovation in Silicon Valley at large. The Obama administration recognized this risk and reasoned that Google’s copying of Java’s code did indeed violate the law. The action, the administration concluded, represented copyright infringement—the theft of intellectual property.
Other organizations, including the Trump Department of Justice, American Conservative Union Foundation, and an “Interdisciplinary Research Team on Programmer Creativity,” have echoed this sentiment. They too have submitted their own briefs in support of Oracle’s petition. And while additional perspectives certainly lend credence and weight to the argument presented, the Obama administration’s point of view stands apart.
In fact, the 2015 amicus brief serves as a sort of litmus test in the case of Google v. Oracle. Why? Because the Obama administration had every political reason to support Google yet chose to do otherwise.
Politics aside, the former president maintained a tight-knit relationship with the search engine company. Obama is said to be good friends with Google Chairman Eric Schmidt. Google helped power and staff Obama’s administration. During his time in office, over 200 employees shifted back and forth between the company and Obama’s executive branch.
To say that Google was close with the Obama administration would be an understatement — but that’s the point. Despite the clear kinship between the two entities, in 2015, the Obama administration sided with Oracle in the aforementioned lawsuit against Google. It’s a reality that speaks volumes to the true nature of Google’s actions in the case. If one of Google’s staunchest political allies recognized that the search engine company was wrong, that’s compelling evidence that Google did indeed make a grave mistake.
If the Supreme Court justices follow Obama’s lead and side with Oracle, then Google, the world’s most recognizable company-turned-verb, will be forced to pony up billions in back licensing fees, legal fees, and damages. However, if they side with Google, their decision will establish a precedent that can be used by unscrupulous firms to justify all sorts of IP theft and related misbehavior.
Regardless, it all comes to a head on March 24. And for those still struggling to decide which party is in the right, just look to the opinion of Google’s chief political ally. Despite the former president’s clear proclivity toward helping Google, he couldn’t bring himself to do so in this instance — Google’s behavior was that out of line. Here’s hoping the justices recognize that fact and come down on the side of law and order.
A 25-year veteran of the IT industry, Randall C. Kennedy has spent much of his career consulting to major technology vendors, including IBM, Intel, Microsoft, HP, Dell, Citrix, VMware, and many others.
Morning Consult welcomes op-ed submissions on policy, politics and business strategy in our coverage areas. Updated submission guidelines can be found here.