- - Tuesday, October 6, 2020

Our Founding Fathers viewed intellectual property as so fundamental to America’s future success that they expressly granted Congress the constitutional authority to protect it. Congress used this authority to safeguard, among other creations, computer–software programs. But a new court case could weaken the very IP protections that drive the digital economy forward.

Despite Congress’ long-lasting view — that original computer programs are entitled to copyright protections just like all other literary works — Google has asked the U.S. Supreme Court in Google v. Oracle to create new exceptions to copyright protection that would allow competitors to copy and exploit popular programs like Oracle’s Java. Make no mistake: This court case is a direct threat to tech companies everywhere. A ruling in Google’s favor would destabilize the software industry and weaken our country’s competitive advantage in technology.

In October, the Supreme Court will hear arguments in Google v. Oracle. This case, which is 10 years in the making, marks the first time the high court will address the copyright protections afforded to computer software since Lotus v. Borland in 1996. Since the modern Copyright Act was signed into law in 1976, and even before that, Congress and the courts have consistently made clear that computer software is entitled to the same copyright protections as any other literary work.

One of the most successful computer programs of our time is Oracle’s Java platform. After Google copied 11,300 lines of Java’s original code and incorporated it into its Android operating system, Oracle filed a copyright infringement suit against Google in 2010. Google does not dispute that it copied Oracle’s code. Instead, it argues that a popular software platform like Java falls within some novel exception under copyright law. But no such exception exists in law or in precedent.

The U.S. Constitution gives Congress the power to use copyright to “promote the Progress of Science and the useful Arts.” Beginning with the first Copyright Act of 1790, Congress granted copyright protection to maps and charts, among other original works, signaling its expansive view of the copyright clause and intention to protect the creators of many different works, including functional ones.



When Congress enacted the Copyright Act of 1976, it reiterated the importance and breadth of copyright protection, and considered computer programs (a new advance at the time) to be entitled to the same copyright protection as other literary works. To ensure a full understanding of this new technology, Congress tasked the National Commission in New Technological Uses of Copyrighted Words (“CONTU”) with examining the copyrightability of computer programs. After three years of review with input from experts, universities and academics, CONTU recommended that computer programs continue to be copyrightable and that general copyright principles, such as fair use, apply to such programs the same as they do to other works.

I was serving in the Senate when Congress adopted CONTU’s recommendations by passing the Computer Software Copyright Act of 1980. At the time, Congress did not carve out any subset of software from copyright protection. Indeed, CONTU actively considered whether some subset of computer programs should be carved out as uncopyrightable, and decided the answer was no. CONTU made clear that program interfaces and declaring code should be treated no differently than other program features for purposes of copyright protection. Nothing has changed since Congress made these decisions about computer programs.

Google’s arguments are an attempt to rewrite the words that Congress so clearly intended. Neither the functionality nor the popularity of an original computer program exempts it from copyright protection, or somehow makes its copying fair use. Google posits that an exception exists for “software interfaces,” but that term is not defined in the Copyright Act, and no such exception exists.

Congress, adopting CONTU’s view, contemplated that the computer programs that are protected by copyright law would be functional and useful. That does not make them any less entitled to copyright protection than any other literary work. In the same vein, Google suggests that it needed to copy Oracle’s computer program because it is so widely used. But copyright protection does not vary depending on how popular or commonly used a product becomes. Indeed, a popularity exception like what Google advocates for would directly contradict one goal of the Copyright Act: to promote advancements and create incentives for creativity.

Congress’ intent to provide complete copyright protection for computer programs strengthens American innovation. Intellectual property laws, including copyright laws, are designed to reward risk-taking and protect an individual’s creative works. These laws incentivize investment and create value for individuals and U.S. businesses, which in turn create jobs, spur economic growth and enrich American culture. It is the role of Congress — not the courts — to review laws and amend them in light of new technologies and behaviors. And Congress has done exactly that, updating copyright laws as necessary over the years.

In doing so, Congress has not changed the clear rule that computer programs are entitled to full copyright protection. In fact, the history of the Copyright Act and related laws demonstrate that Congress has carefully avoided any action that would alter the application of copyright to software, confirming that such principles apply with full force to computer programs.

Given the facts, the course of action the Supreme Court should take is clear: It should decline Google’s invitation to assume Congress’ role in rewriting copyright laws. The future of the software industry — and of American innovation — depends on the Supreme Court upholding these essential protections.

• Orrin G. Hatch is chairman emeritus of the Orrin G. Hatch Foundation. He served as a U.S. senator from Utah from 1977 to 2019, and as president pro tempore of the Senate from 2015 to 2019. He also served as chairman of the Senate Judiciary Committee for 10 years and as ranking member for six years.

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