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An Antitrust Lawsuit is the Least of Google's Worries | Opinion

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In late October, the Department of Justice filed a long-awaited 
antitrust lawsuit against Google. Most experts agree that it 
will continue under a Biden presidency—potentially strengthened 
with additional support from several Democratic attorneys 
general.

But there's another lawsuit filed against Google that has 
already been litigated all the way to the Supreme Court—Google 
v. Oracle—and it gets to the core of how the company unfairly 
became what it is today.

When Google launched Android, it wanted to attract more 
developers, so it used Oracle's Java software platform. The Java 
application programming interface includes "declaring code," 
which enables developers to call up pre-written programs to 
perform an array of functions. More developers building Android 
applications would entice more phone manufacturers to build—and 
more consumers to use—Android devices. And that would preserve 
Google's data collection and advertising business as computing 
migrated to mobile.

Google could have created its own declaring code. But the time 
it would have taken for developers to learn the new code would 
have slowed Android's rollout, and developers might even have 
resisted learning it altogether.

Companies license code all the time, but Google didn't want to 
agree to an Oracle license condition that would have required 
Android to be compatible with Java. Google wanted tight control 
of the Android platform.

Of course, Google is not required to accept license terms it 
does not like. But it cannot reject a license and then use the 
copyrighted material anyway. Yet that's exactly what it did. 
Google copied more than 11,000 lines of the declaring code 
without Oracle's permission anyway.

Google claims that its use of the Java declaring code in a 
smartphone was novel. According to Google, that makes its 
copying "transformative," which is one consideration in 
determining whether potential copyright infringement is a fair 
use.

But that argument is a red herring, wrong on both the facts and 
the law. Google was not the first to use Java in mobile devices, 
as many competing devices used Java (under license). And as the 
DOJ's lawyer argued before the Supreme Court in support of 
Oracle, copying Java for use in the mobile context is no more 
transformative than copying a theatrical movie to make it 
available over the internet.

The Supreme Court said in 1994 that in analyzing 
transformativeness, the question is "whether the new work merely 
supersedes the objects of the original creation, or instead adds 
something new, with a further purpose or different character, 
altering the first with new expression, meaning, or message." 
Google didn't change the declaring code it took from Oracle. It 
used the code verbatim, and for the very same purpose: enabling 
developers to shortcut the programming of specific device 
functions.

If the Supreme Court rules against Google in this clear case of 
copyright infringement, the damages could be on par with, or 
maybe even greater than, that of an antitrust judgment. But 
whatever those damages are, just remember: it's only a fraction 
of what Google should have been paying Oracle for years. And 
apart from monetary damages, a ruling in Oracle's favor would 
help address the fundamental inequity of how Google has built 
its business—unlawfully profiteering off the intellectual 
property of not just Oracle, but many copyright holders large 
and small.

Neil Fried was SVP for Congressional and Regulatory Affairs at 
the Motion Picture Association from 2013 to 2020. For 10 years 
before that he was Communications and Technology Counsel to the 
House Energy and Commerce Committee. He recently launched 
DigitalFrontiers Advocacy, assisting clients on media, copyright 
and technology policy.

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

https://www.newsweek.com/antitrust-lawsuit-least-googles-worries-
opinion-1548507

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