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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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