An Antitrust Lawsuit is the Least of Google's Worries | Opinion

In late October, the Department of Justice filed a long-awaited antitrust lawsuit against Google. Most experts agree that it will continue under a Biden presidency—potentially strengthened with additional support from several Democratic attorneys general.

But there's another lawsuit filed against Google that has already been litigated all the way to the Supreme Court—Google v. Oracle—and it gets to the core of how the company unfairly became what it is today.

When Google launched Android, it wanted to attract more developers, so it used Oracle's Java software platform. The Java application programming interface includes "declaring code," which enables developers to call up pre-written programs to perform an array of functions. More developers building Android applications would entice more phone manufacturers to build—and more consumers to use—Android devices. And that would preserve Google's data collection and advertising business as computing migrated to mobile.

Google could have created its own declaring code. But the time it would have taken for developers to learn the new code would have slowed Android's rollout, and developers might even have resisted learning it altogether.

Companies license code all the time, but Google didn't want to agree to an Oracle license condition that would have required Android to be compatible with Java. Google wanted tight control of the Android platform.

A picture taken on September 3, 2019 shows the US multinational technology and Internet-related services company Google logo, displayed on a tablet screen, in Lille, northern France. DENIS CHARLET/AFP/Getty

Of course, Google is not required to accept license terms it does not like. But it cannot reject a license and then use the copyrighted material anyway. Yet that's exactly what it did. Google copied more than 11,000 lines of the declaring code without Oracle's permission anyway.

Google claims that its use of the Java declaring code in a smartphone was novel. According to Google, that makes its copying "transformative," which is one consideration in determining whether potential copyright infringement is a fair use.

But that argument is a red herring, wrong on both the facts and the law. Google was not the first to use Java in mobile devices, as many competing devices used Java (under license). And as the DOJ's lawyer argued before the Supreme Court in support of Oracle, copying Java for use in the mobile context is no more transformative than copying a theatrical movie to make it available over the internet.

The Supreme Court said in 1994 that in analyzing transformativeness, the question is "whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Google didn't change the declaring code it took from Oracle. It used the code verbatim, and for the very same purpose: enabling developers to shortcut the programming of specific device functions.

If the Supreme Court rules against Google in this clear case of copyright infringement, the damages could be on par with, or maybe even greater than, that of an antitrust judgment. But whatever those damages are, just remember: it's only a fraction of what Google should have been paying Oracle for years. And apart from monetary damages, a ruling in Oracle's favor would help address the fundamental inequity of how Google has built its business—unlawfully profiteering off the intellectual property of not just Oracle, but many copyright holders large and small.

Neil Fried was SVP for Congressional and Regulatory Affairs at the Motion Picture Association from 2013 to 2020. For 10 years before that he was Communications and Technology Counsel to the House Energy and Commerce Committee. He recently launched DigitalFrontiers Advocacy, assisting clients on media, copyright and technology policy.

The views expressed in this article are the writer's own.