- - Wednesday, October 7, 2020

On Wednesday, the U.S. Supreme Court held oral arguments for the landmark Supreme Court case Google v. Oracle. The case centers around whether more than 11,000 lines of code that Google copied to create Android, Google’s mobile operating system, are copyrightable.

Experts aren’t calling it the copyright case of the century for nothing. If Google wins this fight, it will affect far more than the other billion-dollar tech giant that’s party to this case. Large swaths of the digital economy — including songwriters, news publishers and health care organizations, will feel the pain.  

Among other things, the case centers around whether Google’s verbatim copy of the Java coding qualifies under the fair use doctrine, which provides exemptions to copyright law in limited circumstances when the use doesn’t supersede the original work. 

Google claims its use of Java qualifies under fair use because it used the coding for the “transformative purpose” of creating a mobile operating system, but this isn’t what the courts intended for fair use to mean. As Judge Kathleen O’Malley wrote in this case’s Court of Appeals ruling, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”

Fair use is supposed to protect people like teachers that use video clips for their lesson plans and book reviewers that use excerpts of novels to get their point across. It’s not supposed to prevent corporate giants from having to pay for licenses to make their commercial ventures run. However, if Google wins this case, many industries have expressed apprehension that the fair use doctrine could expand to encompass exactly that. 

In an amicus brief to the court, a coalition of music and songwriting groups — including the Recording Industry Association of America and National Music Publishers’ Association —  made it clear that their members rely on a strong interpretation of fair use to stay in business. The court siding with Google could allow big companies to use their works for free without licensing. 

Media organizations and news and book publishers, like the Association of American Publishers and News Media Alliance, have also expressed worry. They fear that ruling in Google’s favor could provide a legal opening for digital platforms, which seemingly try exploiting hard news content on a daily basis, to suck them dry.

The News Media Alliance went so far as to argue that “the fair use arguments Google deploys here … are strikingly similar to the arguments it has made, and will make, in its quest for ever-increasing dominance of a range of communicative fields.” Its brief suggested that, beyond the negative precedent that it would set for other companies, ruling in Google’s favor here could open the door for more legal challenges from Google itself to chip away at intellectual property rights throughout the economy. 

Other sectors that use Application Program Interfaces (APIs) composed similarly to Java’s believe that their intellectual property could be next on the chopping block. 

The health care industry, for example, uses APIs to collect and protect users’ medical information and worries that tech innovators in health care “will no longer choose to do so if they have no ability to protect their works under U.S. copyright laws.”

The leading trade association for the telecommunications industry argues that “loss of the ability to guard from appropriation of the software at the heart of their networks would eviscerate providers’ ability to ensure security and resiliency, to protect customer privacy, and to innovate and compete.” Airlines could watch their reservation systems crumble. The list goes on and on.

In recent years, few issues have brought both of the United States’ political parties together. However, the potential consequences posed to innovation and economic growth by Google v. Oracle are so high that even the Obama and Trump administrations both submitted friend of the court briefs positioning themselves against Google’s position.  

This case is about more than computer coding. It is about how the United States, and perhaps the world, will conduct business for decades to come. 

Innovators and small businesses have already received significant and, in some cases, irreparable harm from the pains of the pandemic. The last thing they need are new legal challenges that can jeopardize the security of their operations even further. 

It’s the Supreme Court’s duty to stand up for strong IP rights and the rule of law. Here’s hoping that in Google v. Oracle, it’s up for the task.

• Andrew Langer is the president of Institute for Liberty.

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