There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come: Google v. Oracle.
[MTP readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion. We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people dancing to Google’s tune.]
On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle. But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.” And when I say “Google”, I don’t really mean Google as a company. I mean the insiders. This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.
So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.
How did Google get sued by Oracle and not Sun? According to Google’s SCOTUS brief (at 3):
Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.
Let’s not just blow past that statement. (First of all, it’s not really true.) That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights. Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that. Or said another way, 2+2=5. And don’t you forget it.
You can see that Google would like to push that angle.
If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do. That buyer then sues Google for those pre-acquisition infringements. A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.
But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems. As the amicus brief by the United States tells us, one of the questions presented to SCOTUS is:
Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….
[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.
As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative. Which is, of course, fair use. Or was it a parody, I forget.
The brief by the United States disagrees, and so do I.
So let’s be clear: This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can. And then scream fair use.
You have to wonder why SCOTUS took this case. I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.