ID-10021729

Image courtesy of Pixomar by FreeDigitalPhotos.net

Where its own proprietary content is concerned, Google seeks the fullest protection of the law — not so much when it comes to the proprietary content of others. When it wants what you have, Google is prepared to engage in judicial gymnastics and puts its considerable financial muscle to work to get it.

The most recent case in point is Google’s copying of Oracle’s proprietary Java software into its Android operating system. Oracle makes the source code and organization of the Java platform available to companies to license. In fact, the entire platform is available under a free, open source GPL license. The only condition is that, when developers use the Java platform, they maintain the ecosystem of the Java community, which is that programs written for the Java platform will be able to run on any computer. This is Oracle’s “write once, run anywhere” philosophy.

Google, which purports to support open source software, had the option to abide by these terms or to create its own, functionally equivalent proprietary software. Instead, wanting it both ways, Google chose to copy certain key elements of Oracle’s Java code and then to claim the resulting product as its own, proprietary software—in fact, Google has gone so far as to threaten to litigate against others when they attempted to do the same thing with Android. Understandably, Oracle sued to protect its rights.

Last year, the Federal Circuit Court of Appeals ruled against Google on the critical issue of whether what Google copied was copyrightable. Having failed to get its way, Google is now attempting to bring its case to the Supreme Court. The case, however, is not complicated and the Federal Circuit’s decision was consistent with the many other courts that have considered the opportunity to copyright computer programs.

As a threshold matter, there is no dispute that Google copied 7,000 lines of source code and the structure, sequence, and organization of Oracle’s popular Java platform. In fact, Google admits it.

Instead of arguing that it did not copy Oracle’s code, Google has chosen to muddy the waters of what the Federal Circuit felt was a straightforward case. In an effort to change the very nature of copyright as it relates to computer programs, Google argued that, although everyone agreed that Oracle’s source code and organization was creative and original, what Google copied was not protected by copyright because it serves a function. That position, however, is incredibly shortsighted as, if Oracle’s complex code is not protectable, no computer program would be. As the Federal Circuit acknowledged, all software serves a function. To accept Google’s claim on this point would invalidate the copyright enjoyed by all software.

Google also advanced the claim that the Java platform was not copyrightable because it had somehow become a de facto industry standard. The Federal Circuit shot down this argument too saying that “[i]t is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement.” Moreover, there is no doubt that Oracle’s platform is not, in fact, a standard, but rather popular. The idea that a work could become uncopyrightable over time as it becomes more popular is anathema to the entire idea behind promoting innovation by awarding authors a copyright. The goal is to spur creativity.

One hopes that the Supreme Court will recognize that Google’s arguments are nothing more than smoke and mirrors, and decide to turn down the application to hear this case.