Supreme Court Could Take Intellectual Property Protections Back 50 Years | Opinion

Once or twice a generation, the Supreme Court agrees to hear a case so monumental, so groundbreaking in its potential to change the law, that it shapes Americans' rights for years to come. These occasions are nothing short of paradigm-shifting, and the upcoming Supreme Court case Google v. Oracle is one of them.

On October 7, the Justices will hear oral arguments in this case, which many lawyers have referred to as the copyright case of the century. It will mark the first time the High Court rules on the copyrightability of software since Congress passed the Copyright Act of 1976—the law that governs the country's entire copyright system. As such, it will set a crucial precedent for the future of copyright law and the United States' economy in the digital age by either protecting IP from systematic domestic and foreign copying or offering these cases legal protection.

Google v. Oracle was initially filed nearly a decade ago after Google inquired about licensing portions of Oracle's popular computer platform, Java, but elected to copy it instead. It then used the replicated code to build software for its mobile operating system, Android.

Google argues that the computer coding it copied is not entitled to the protections of the Copyright Act. However, in my capacity as the chairman of the House Judiciary Committee, chairman of the Subcommittee on Intellectual Property, Competition and the Internet, and co-chairman of the Congressional Internet Caucus, I spearheaded the first comprehensive review of copyright law since the 1970s and oversaw numerous updates. On day one, it became evident that the Copyright Act clearly extends copyright protection to all "original works of authorship." The bill's report even explicitly singles out computer programs as a new form of expression that was "considered copyrightable from the outset without the need of new legislation."

This congressional review process was not the only one that came to that conclusion. In 1974, Congress also created a special federal task force, the Commission on New Technological Uses of Copyrighted Works (CONTU), to examine copyright issues in the then-nascent computer industry. The task force, comprised of numerous intellectual property experts, conducted an exhaustive three-year review, filled with hearings, data collection and significant deliberation.

Ultimately, CONTU made the same determination—digital works, like software, should be categorized as copyrightable to the maximum extent of the law and in the same manner as all other copyrighted works.

A Google logo and Android statue are seen at the Googleplex in Menlo Park, California. Josh Edelson/AFP/Getty

The panel recommended that Congress amend the law to make the point explicit. It did so by adding "computer program" to the relevant U.S. code, making it clear that all computer code is protected by copyright law. Yet, Google now asks the Supreme Court to conclude the opposite, contrary to the statute's text, congressional intent and years of industry practice.

Google has also attempted to claim an exemption to copyright under the "fair use" doctrine, which allows limited use that does not supersede the original work. However, Google's interpretation of fair use is grossly out of step with the purpose of the doctrine. Its verbatim reproduction of Java's code for an entirely commercial purpose was not transformative. It simply copied material for use in Google's competing platform to do the same thing that it does in Oracle's platform. That is very different from actions that the Copyright Act accepts as fair use, such as criticism, commentary, news reporting, teaching and research.

The substantial success of the internet, and the subsequent explosion of technological advances, are directly attributable to strong IP rights. As technology has advanced over time, IP law has developed to reflect those changes—creating an atmosphere of certainty that has facilitated its continued growth and success.

As is evident from the wide variety of amicus briefs filed against Google, a ruling in Google's favor would have significant negative implications for not only the software industry, but also for musicians, news publishers, health care professionals and the U.S. economy writ large.

Even Justice Department officials in both the Obama and Trump administrations filed amicus briefs in three separate instances positioning the federal government against Google's unlicensed use of Java. They both understood that ruling in this manner would undercut the efficacy of the nation's intellectual property laws.

The United States cannot afford to change its laws to accommodate one tech giant at the expense of innovation and economic growth in the digital age. Here's hoping the Supreme Court recognizes what is at stake and stands up for the future of technological innovation.

Bob Goodlatte is a freelance author and former chairman of the House Judiciary Committee. He represented Virginia's Sixth District in Congress from 1993 to 2018.

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