Google's Fair Use Defense At High Court Is Disingenuous

By James Skyles
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Law360 (May 26, 2020, 2:37 PM EDT) --
James Skyles
James Skyles
Due to the COVID-19 pandemic, the U.S. Supreme Court has postponed oral arguments in Google Inc. v. Oracle Corp.[1] from March to October and is currently seeking additional briefings with an interest in Google's fair use defense.[2]

The underlying issue in the case is the intellectual property rights regarding 11,000 lines of code from Oracle's Java application programming interface, or API, which Google used to create early versions of the Android smartphone operating system. According to the legal filings in the case, Google initially sought a license from Oracle for the code but rejected the terms and opted to use it without permission instead.[3]

It is not a question of fact that Google took this code. However, the tech giant argues that copying Java's APIs — certain protocols and shortcuts for app developers — constitutes fair use, a recognized and well-developed legal defense against copyright infringement for essential, transformative purposes, and that software interfaces are not copyrightable.[4]

It concludes its brief by arguing that accepting the copyright "would disrupt the ongoing development of modern, interoperable computer software" with an interest in Google's fair use defense.[5] By adding this law and economics approach, Google seems to think it has strengthened its defense. This is not the case, and respecting Java's intellectual property rights would in no way hinder development of interoperable software between different operating systems.

Interoperability is a fancy word to describe compatibility between different systems. Applied to this case, Google argues that because so many software developers were proficient in using Java APIs, this would make it easier for app developers to make apps that are compatible with different operating systems.

Now, in the wake of the COVID-19 crisis, Google and Apple Inc. are setting up a joint tracing program, which will use location data to track the social distancing of their users.[6] Due to interoperability of this system, made possible by iOS and Android APIs, Google may argue that the importance of interoperability in the digital world should render all APIs as open for fair use. In reality, however, Google's tracing program proves nothing other than how its selectively applies interoperability when dealing with other tech giants.

Google and Apple are the only two smartphone operating systems available in the U.S. market. Google pays Apple over $10 billion to make it the default search engine for Siri and Safari web browsers. When Google deals with smaller businesses like app developers, it is far from interoperable. As Adam Candeub, a law professor at Michigan State University who specializes in intellectual property and antitrust notes:

Google does not allow auto-updates and security protection for apps that are not downloaded through the store. By locking in all the apps into the Google Play Store, Google can then charge an exorbitant commission on all fees and can also arbitrarily ban apps which it does not like.[7]

Moreover, strong IP rights do not hinder interoperability. For example, Bluetooth, the technology that allows wireless transmission of data over short distances, is incorporated on virtually all modern computers, tablets and phones, as well as many other devices, allowing them to transmit data to each other. Bluetooth epitomizes an interoperable system. Incidentally, this is what Google and Apple are using in their contact tracing program.

The Bluetooth Special Interest Group controls the Bluetooth's IP and licenses it for a set fee, which varies depending on the size of the company.[8] Antitrust law requires fair and equitable licensing of standard-essential patents. [9] As a result, Bluetooth SIG could not deny a license to a competitor or charge an exorbitant fee.

The same goes for the even larger industry group, the USB Implementers Forum, or USB-IF, which oversees the licensing and use of Universal Serial Bus for the tech industry.[10] USB is a standard set of specifications for wires and connectors used throughout the tech world. Its usage over the last two decades has demonstrated how different companies can benefit from interoperability through standard, commonsense licensing regimes. In fact, the development of USB and its nonprofit regulator is filled with examples of collaboration without intellectual property theft.

When Intel Corp. first developed USB, it contacted Microsoft Corp. concerning developing potential compatibility with the mouse. But rather than infringe on Intel's work, the two companies collaborated and found a workable solution.[11] Going forward, Intel joined with other leaders, like Microsoft, to form the USB-IF and to oversee licensing and performance while avoiding massive litigation. Because of this licensing system, USB is now engrained within a number of products, and innovation within the tech industry continues to thrive.

Moreover, in the same way that SIG obeys antitrust laws, the USB-IF could never charge a competitor an exorbitant fee for USB usage, making potential roadblocks to technological process even less lucky.

Google has never even attempted to make this argument because Oracle has always licensed Java APIs at a fixed and reasonable rate. Furthermore, Java APIs are clearly not essential because other competitors, such as Apple and Microsoft, were able to develop their own APIs for mobile apps,[12] and Google has since developed a noninfringing version for its Android system.[13] 

Google's IP theft has never had anything to do with interoperability. It is indicative of the hubris of Silicon Valley's "move fast and break things" arrogance, which prefers to follow a calculus of efficient infringement to take intellectual property, rather than follow the law.



James Skyles is the principal attorney at Skyles Law Group LLC and the founder and president of M2M Legal.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Supreme Court Calendar, Google LLC v. Oracle America Inc., May 3, 2020.

[2] Jan Wolfe, SCOTUS asks for More Briefings in Oracle v Google Copyright Case, Associated Press, May 4, 2020.

[3] Id.

[4] Brief for the United States Court of Appeals, Google LLC v. Oracle America Inc, U.S. (2017) (no.1118,1202).

[5] Reply Brief of petitioners Google LLC for the United States Supreme Court, Google LLC v. Oracle America Inc, U.S. (2018) (no. 18-956).

[6] Russell Brandom, Adi Robertson, "Apple and Google are building a coronavirus tracking system into iOS and Android", April 10, 2020. 

[7] Adam Candeub, Washington Bytes, "Google Makes Weak Claims That IP Protects Competition", Forbes, January 29, 2020.

[8] Bluetooth Special Interest Group Qualification Standards.

[9] Koren W. Wong-Ervin, "Standard-Essential Patents: The International Landscape", United States Federal Trade Commission, April 2014.

[10] USB-IF Home Website.

[11] Joel Johnson, "The Unlikely Origins of USB, the Port that Changed Everything", Fast Company, May 29, 2019.

[12] Andreas Krohn, "Lessons Learned from Apples API Strategy", Nordic APIs, December 9, 2015.

[13] Microsoft Azure product page.

For a reprint of this article, please contact reprints@law360.com.

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