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Press Release: IAP Files Brief in Support of Oracle in SCOTUS Battle Over Google’s Theft of Oracle’s IP

February 18, 2020

For Immediate Release: February 18, 2020 

Contact: IAP Media Affairs Email: info@theiap.org Website: www.theiap.org 

 Internet Accountability Project (IAP) Files Amicus Brief in Support of Oracle in Supreme Court Battle Over Google’s Theft of Oracle’s Intellectual Property 

Conservative nonprofit argues that Google stole Oracle’s computer code, as Google worried about falling behind Apple in the race to build a mobile phone — not because Google wanted to promote “free expression,” “news reporting,” or “scholarship” 

Washington D.C. — The Internet Accountability Project (IAP), a conservative nonprofit formed to lend a conservative voice to the calls for federal and state governments to rein in Big Tech before it is too late, filed an amicus (friend of the court) brief with the Supreme Court of the United States in Google LLC v. Oracle America Inc., a case addressing whether the “fair use” doctrine of federal copyright laws permits Google’s theft of Oracle’s intellectual property. (A downloadable PDF of the filed amicus brief is available here.) 

The issue at hand is Google’s theft of 11,500 lines of computer code from Oracle back in 2010, in its attempt to catch up with Apple to build a mobile phone. Google used the code to build its Android smartphone and never licensed the code from Oracle. Instead, Google later claimed that its actions were “fair use” under federal copyright laws. 

As explained in more detail below, fair use is a very old legal doctrine that allows for a limited amount of copyrighted content to be used to promote free expression, news reporting, and scholarship — which is not applicable to Google’s theft of Oracle’s intellectual property. 

“With a straight face, Google is claiming that stealing copyrighted computer code from Oracle is ‘fair use.’ There is nothing fair about Google’s absurd interpretation of the ‘fair use’ doctrine to justify Google’s theft of Oracle’s intellectual property,” said Mike Davis, the founder and president of IAP. “Google’s theft of Oracle’s property was about money, pure and simple.” 

Davis continued: “As conservatives, we felt compelled to weigh in on this important case, because it involves property rights and Big Tech’s persistent refusal to recognize these rights. This refusal extends not only to copyrighted code but also to creative content, internet access, and consumer data. Google free rides all these key building blocks for its business and refuses to pay for any of them. We call this ‘the Great 21st Century Internet Heist.’” 

“Google’s pattern of behavior against innovative tech firms is alarming and ongoing. Oracle is not the only firm they have abused, just the only one with the resources to see them through years of litigation,” said Rachel Bovard, IAP’s senior advisor and policy director. 

Bovard continued: “Google cannot steal, bully, and cheat its way into market dominance, and we are hopeful the Supreme Court will see through their excuses and restore fairness to the tech marketplace.” 

IAP is represented by counsel John Thorne and Christopher Young from law firm Kellogg Hansen. 

Summary of the Legal Argument in IAP’s Amicus Brief: 

Our brief addresses two of Google’s attempts to defend its verbatim copying of 11,500 lines of Oracle software. 

First, Google says the world of software is “new and new-fangled.”  Software for big tech platforms is so new that Google doesn’t expect the Court to be able to understand the complexity of what Google has done.  For example, Google’s brief states at page 20 and note 6:   

Google’s engineers reused no more than what the Java language absolutely required.  The engineers did not even duplicate the entirety of the declarations they reused.  In one respect, developers’ calls will respond properly to declarations that deviate from those in the Java SE libraries.  Many calls and declarations include “arguments,” which transfer information from the developer’s application.  The Java language does notrequire that a declaration use particular argument names.  From the earlier example, recall that the declaration for the max method [ public static int max (int a, int b) ] anticipates receiving two integers as arguments, which are assigned the names a and b [ (int a, int b) ].  Instead of a and b, the declaration for max would still properly respond to the developer’s call if it used, for example, x and y. 

Google argues that having to write all its own software would have been tedious and time-consuming.  The fact that both Apple and Microsoft wrote all their own software “from scratch” shows that it was not necessary for Google to copy Oracle software.  Google avoided such drudgery in copying from Oracle and it benefited from the widespread popularity of Oracle’s software among independent programmers. 

But taking shortcuts by copying is not new.  In 1841, Supreme Court Justice Joseph Story heard a case about an infringer who copied portions of a twelve-volume treatise about George Washington. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841).  The original treatise was 6,763 pages.  The infringing copier took verbatim 353 pages from the original, including “punctuation and other typographical peculiarities,” to make a new, shorter, two-volume treatise.  The infringer’s book sales cut into the original author’s sales.  Justice Story held that such verbatim copying of another’s work, and using the copied material to create a marketplace replacement for the original work, is impermissible copyright infringement.  Enforcing the copyright protects the incentive to create “Writings and Discoveries” and “To promote the Progress of Science and useful Arts.”  Justice Story asked, who would undertake the efforts to create and publish original works “if, the moment they were successful, and possessed the substantial patronage of the public, a rival bookseller might republish them, either in the same, or in a cheaper form, and thus either share with him, or take from him the whole profits?” 

Second, Google and its supporters argue that copying is needed to promote competition – against Oracle, the original creator of the useful software.  

But competition law doesn’t support Google.  The Supreme Court rejected Google’s argument in a decision with no dissent authored by Justice Scalia.  Verizon v. Trinko, LLP, 540 U.S. 398 (2004), involved an analogous demand for sharing parts of an alleged monopolist’s investment (lines of a telephone network rather than lines of software code).  The plaintiff in Trinko claimed that Verizon was required by antitrust law to assist telephone rivals to displace Verizon’s own sales, line by line, by sharing pieces of Verizon’s own telephone network.  Justice Scalia wrote that economic freedom allows companies like Verizon or Oracle to build successful products.  “Compelling such firms to share the source of their advantage” is contrary to “the underlying purpose of antitrust law, since it may lessen the incentive for the monopolist, the rival, or both to invest in those economically beneficial facilities.”  Id. at 407-08.  Firms are driven to invest by the prospective financial rewards that their investments may yield.  The prospect of profit “induces risk taking that produces innovation and economic growth.”  Trinko, 540 U.S. at 407; cf. Folsom, 9 F. Cas. at 347 (an “exclusive copyright” in works “encourages their publication”).  If antitrust or copyright compelled firms to share the rewards of their successful investments, the incentives to invest would be severely undermined, if not eliminated. 

About IAP: 

We are conservatives who are alarmed by the role Big Tech plays in our society. We are concerned by the political and economic harms Big Tech platforms, such as Google, Facebook, and Amazon, are inflicting on Americans. These harms include negative content, conservative bias, privacy violations, anticompetitive conduct, and employee abuses. We formed the Internet Accountability Project (IAP) in order to speak out against Big Tech before it is too late. 

The Internet Accountability Project (IAP) educates the public and advocates for policies that: (1) promote competition and innovation in the technology sector; (2) ensure online platforms provide a forum for diverse points of view; (3) ensure online privacy; (4) protect children and communities online; and (5) strengthen national security through the effective use of technology.