Google's Anti-competitive Behavior Will be its Undoing | Opinion

The honeymoon period for giant internet companies is long gone, and no one is under more scrutiny than Google. It is facing charges of violating competition laws, accusations of political bias and bipartisan calls to roll back its treasured legal immunities. On top of all that, any day now the Supreme Court will issue its decision in Google v. Oracle, a copyright infringement suit arising from Google's copying of over 11,000 lines of Oracle's computer code.

Google has been using Oracle's code for more than a decade. It was caught flat-footed when Apple announced the first iPhone back in 2007. One way Google closed the gap was to copy Oracle's Java code into its Android mobile platform. Java was already a well-known and respected program, and by using it Google could entice app developers to write apps for its phones quickly, to catch up with Apple's early lead.

Oracle offered a variety of license options for the use of Java, but Google refused them all. It wasn't the money—Google didn't want to abide by Oracle's requirement that programs utilizing Java remain interoperable with other Java-based software. It was that "write once, run anywhere" philosophy that had helped make Java so popular. But Oracle's openness requirement would have cost Google the control it wanted. So it just copied the code without permission. Oracle sued for copyright infringement and now the case is pending before the Supreme Court.

Congress amended the Copyright Act four decades ago to make clear that computer code is protected by copyright. But that hasn't stopped Google from presenting the Court with claims that the code it copied—known as "declaring code"—is somehow not protected. But Google's arguments contort the letter of the law. The company has admitted it copied, and that Oracle's declaring code is creative—the touchstone for copyright protection. So it was no surprise that during the oral argument before the Supreme Court, the Justices were unimpressed by Google's claims.

Google's fallback argument is that its copying should be excused as "fair use." Fair use is a flexible doctrine under copyright law designed to facilitate primarily nonprofit and educational uses. Of course, Google's multi-billion-dollar Android business is neither. So Google argues that its use of the code was "transformative"—a doctrine that can result in even commercial uses being considered fair use. But that standard requires there to be some added creativity by the user that transforms the work being used, and all Google did was copy Oracle's code verbatim.

If the Court were to accept these arguments, it would dramatically expand fair use and threaten the livelihoods of all creators who rely on effective copyright protection. Such a ruling would also violate more than a dozen agreements the United States has made with other countries.

For all these reasons, the Department of Justice and the U.S. Copyright Office intervened to support Oracle—first under the Obama administration and again during the Trump administration.

Faced with unfavorable facts and a stack of legal precedent against it, Google, as the saying goes, is now pounding on the table. One example is a brief that a group of coders wrote in support of it.

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The upshot of that brief is that enforcing copyright protection for the code Google copied from Oracle would disrupt the "reimplementation" (a spin on the more candid "copying") that is common practice in the software industry. Aside from the irony that, in many other contexts, Google lays claim to disruption as a positive force, this argument simply isn't true.

The most obvious piece of evidence that unlicensed copying isn't the universal rule is that Oracle has a vibrant and lucrative business licensing Java—the very software that Google copied. The coders' brief blurs the line between licensed and unlicensed copying by speaking of code as being available for copying simply because it is "open source." This gives the false impression that open source is the opposite of copyright—allowing free copying without restriction.

In fact, open source is a license, specifically a copyright license. And an open source license is simply a type of business model. It is "free" in that it does not require payment—it generally allows anyone to see and alter the computer code, and in exchange those changes have to be made available to the world on the same terms.

This reciprocal "share alike" requirement is fundamental. In order for certain open source models—such as the GPL used by Java—to sustain themselves, downstream participants must make their changes and improvements publicly available. Compliance with those conditions is only enforceable through the license—copyright enforcement. This sharing, not unlicensed copying, is common in the software industry, and it is undisputed in this case that Oracle did and does offer its code through an open-source license. The coders' brief in defense of Google omits these facts and offers the Court a false choice between denying the application of copyright law to Oracle's code and an imagined stifling of competition.

The brief, in essence, asks the Supreme Court to disregard the Copyright Act to favor one business model over another. Some companies make money selling their software, while others, like Google, give away the software and make money by collecting data on those who use it. Google doesn't care if it disrupts the copyright-based business of those companies that sell software, because it can copy for free and still make money through its data-collection and advertising business model. That is why the Justice Department told the Supreme Court during oral arguments that Google's support comes from "economic actors" whose "interests happen to align with Google's."

The caricature of copyright law that Google and its amici briefs offer is belied by the company's own contradictory claims when the interests are reversed. While Google is more than happy to allege harm to innovation and competition in order to rationalize its copying from others, when others seek to copy proprietary data from Google, the company reverses all its arguments and claims that copying could result in "enabling free-riding and chilling incentives to innovate."

The coders' predictions about the negative implications the case could have for innovation ignore the undisputed reality that Google copied Oracle's code for the entirely commercial purpose of building a non-interoperable system in direct competition with the copyright owner. A ruling that such extreme prejudice against the copyright owner is not fair use would still permit legitimate innovation—such as reverse engineering to create interoperable, complementary products. The Court knows how to limit the scope of its rulings, just as it did in other cases involving a defendant that built a business by copying others' copyrighted works.

The Supreme Court should, and I believe will, see through the spin and selective offering of facts to sustain the Copyright Act and its incentives that have helped this nation build the world's leading creative industries.

Steven Tepp is President & CEO of Sentinel Worldwide and a Professorial Lecturer in Law at George Washington University Law School.

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