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In the upcoming year, the Supreme Court will hear Google’s challenge to the ruling of the Federal Circuit Court of Appeals that the tech giant’s use of Oracle’s Java application programming interfaces (APIs) violated copyright law.
The issues in the case are not particularly complicated. Google copied thousands of lines of Java’s API code to implement its Android OS, and Oracle, which owns the code sued. The case is straightforward. Software code falls under copyright laws, which prohibit its copying or reproduction, with an exception that it may be reproduced for fair use. According to Supreme Court precedent in Campbell v. Acuff-Rose Music, the replication of copywritten material is “fair use” only when the result is “transformative.” Google’s use of the code certainly wasn’t. Google just copied.
The Federal Circuit found that the code in Android “is the same as the purpose of the packages in the Java platform,” and further “Google made no alteration to the expressive content or message of the copyrighted material.”
Google argues that Java’s interface is effectively more like a language of shortcuts—universally used and uncopyrightable. Yet, just because something is widely used does not make it uncopyrightable. It was in Oracle’s interest for Java to be widely used, and Oracle offered the API scripts for free to app developers. Oracle only wanted hardware manufacturers and competing platform developers, such as Android, to pay a licensing fee. Under copyright law, Oracle had the right to do just that.
But Google has never let the law dictate their behavior. As one of its top lawyers admitted, "Google's leadership doesn't care terribly much about precedent or law" when it comes to copyright. Google took the Java code to help launch the Android mobile operating system—just as it was losing out in the then-nascent mobile search market. IPhones initially used Bing as its default search engine, which threatened Google’s search monopoly. Android, however, used Google as the default search engine.
In the ensuing years, mobile search has surpassed desktop. Android now enjoys a duopoly on smartphones in the U.S. and controls 75% of the global market, and Google started paying Apple billions of dollars to become the default search engine. Google has used Android to favor other verticals as well, like YouTube, Gmail, and Google Maps. In addition, Android ruthlessly invades consumer privacy—greatly strengthening Google’s data monopoly.
Android’s rise was necessary for Google to entrench its market power across search, advertising, data, browsing, email, and other platforms. And this dominance would not have been as easily or profitably achieved had Google paid the license for the APIs in the first place.
With breathtaking chutzpah, Google argues that its market dominance argues for overturning the Federal Circuit’s decision. Even as Google is facing bipartisan antitrust scrutiny, an antitrust investigation by 50 state Attorneys General, the House Judiciary Committee, and the U.S. Department of Justice, Google claimed in its certiorari petition that the Federal Circuit’s ruling must be overturned because “control over interfaces gives rise to barriers to entry and implicates issues of competition and innovation that warrant this Court’s review.”
The Computer Communications Association of America—a lobbying organization which represents Google, Facebook, Amazon, and other Big Tech companies—wrote an amicus on the subject. It argued that “[a]llowing the Federal Circuit’s decisions in this case to stand will lead to the anomalous result of less competition in the software industry.” Even Microsoft, the company synonymous with software monopolies, opined in Google’s favor by discussing how loose software copyright regimes, “facilitat[ed] the entry of new competitor[s].”
There’s no question that overly strict copyright enforcement can restrict competition, particularly if intellectual property plays an essential role in the economy, and antitrust laws can require compulsory licensing of intellectual property to competitors at a fair price. However, as noted, Oracle licensed the APIs to all. Moreover, the script was not necessary to create an app-based operating system—Apple and Microsoft both managed to do so without it.
It doesn’t take a cynic to be skeptical of Google, Facebook, Microsoft, and Amazon claiming to be concerned about facilitating competition. Google v. Oracle is not about helping small tech companies compete but letting Big Tech companies ignore the law to continue their dominance.
