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Officially titled consequences of the case. I actually have my own subtitle, which is copyright and the future of the industry. Im absolutely to have patton of the fast institute to talk to us about the legal and commercial issues that are raised by this case. My name is adam mossoff. Im a senior fellow at the hudson institute. And im the chair of the newly constituted forum for intellectual property at the hudson student. This is our inaugural event and were delighted to have it on such an important issue and such an important speaker. We will be hosting events and promoting datadriven fact base research that explores and investigates the important and key roles that intellectual property plays and not just driving the u. S. Economy for the past 230 years but all innovation economies throughout the world creating the foundation for flourishing societies. And we hope to play an active role in insuring that factbased research and datadriven studies are in the hands of our policymakers as they consider the very important issues such as the decision that has to be made and legislation that has to be considered before congress and regulation that has to be aadopted by our agencies. Im very delighted to have as our speaker today tim wilson director at patents at the south institute. I would like to emphasize that we are both speaking on our individual capacities and not on behalf of our respected institutions. Normally, i do not give large or long introductions of people. If you wish to discover all of mr. Wilsons incredible accolades and achievements over his multidecade career embrace our mobile revolution. Choose the browser of your choice, the Search Engine of your choice whether bing or google, and you find all that you wish about about tim wilson. But thank you, tim for being here today. My pleasure. Thank you. So i wanted to kick off our discussion before we Start Talking about the goole v. Oracle case, many people may not have heard about the fast institute and may be wondering what is this organization . And why are you talking about this case from the perspective of your work at the fasts institute so could you please tell us a little bit about your company . Sure. Fast is a largely Held Software Company in cary , North Carolina which is about an hour from here. And we have been in the Software Business since before there was a Software Business back in 1976 we were founded but actually have our roots going back into the 1960s. And the problem that fast was trying to solve was to determine patterns in data that you couldnt see with the human eye or people couldnt perceive, statistics, analytic, Artificial Intelligence all those things that sas is best at developing. And so we have about 14,000 employees around the world now. And so we have about 14,000 employees around the world now. We are, you know, like i said, a large a large Software Company. We call it a proprietary Software Company. So that is a company that we actually make money directly from our software and our customers are happy to to participate with us and it helps us develop our Software Going forward. Also kind of interestingly, you know, apropos about this case is that we have a a. P. I. Which is the main way that our software is interacted with by our users. And so they create programs and that tells the computer kind of what to do, and its very useful to have those be easy to understand and used by our users. And that has really been one of the major reasons that sas has been successful at becoming a big Software Company and one of the reasons this case is very important. And the case centers around an a. P. I. , for the nontech geeks in the audience or who may be watching by live stream it stands for Application Program interface. So what it actually means, i think in a technical sense is it kind of a shorthand ways to refer to and access big blocks of computer code. Any of the kind of programmers in the audience, might know the various generations of software has been kind of first generation system. Second generation systems, Third Generation systems. A. P. I. Is kind of referred to as the fourth generation system, where were not actually programming, you know, a programming language like c. But were programming the system in big blocks of code. Its really an important and modern way to interact with the code. All right. Im sure well dig into some more details in your remarks. Were going to have a moderated back and forth between us to lay the foundation and what the case is about and policy issues and well open it up for questions for the audience in about 20 or 30 minutes. March 24, the Supreme Court will inhearing oral arguments what is now styled google v. O racle. Oogle in as oracle v g when oracle first sued them for 2011. Copyright infringement. It is centered around this little device that i hold up. I used to refer to this as my infringing device when i would talk at patent conferences because its the samsung and android device. Now, i can refer it to as my infringing device. It is multiple levels of infringement. Can you give us some of the relevant background here and why im making these references . Sure. Awesome. Back in the 1990s, java was created by sun micro systems as a new very Popular Software development, you know, programming system. And sun was later sold to oracle. And so thats how we got kind of this case, you know, in style as oracle being the main actor here. So the main strength of java, i think is that you could write your code once and run it anywhere. And that was the main thing that java gave to us that that we didnt have before in the marketplace. And it was really a useful feature. And at the same time what was happening or at least a little later, we saw the rise of the smart phones, right . We saw the iphone come out in 2007, i believe, and that really was for a company like google or something that they had dominated obviously, the search on the p. C. Platform. And you know, kind of the computer. But we had this new platform out there that the folks who were kind of really thinking about this issue said well, this changes everything. And that was the smartphone. And so you know, what we saw were was this platform that java had created or that sung had created that allowed you to run on any platform. And that includes the smart phones in smart phones they had their own version of java. I think think it was called java s. E. That was a popular way to create apps on this smart phones. I guess around that time, google acquired a Company Called android. And many people dont remember that android was not actually google in the beginning. That was something google thought, this is the way we are going to go into the smartphone business and of course when they they didnt know that it was not complete or was not as good as they thought it might be and so they were at the same time hedging their bets and sun,g we want to license or we want to license java as tol as another alternative getting into the smartphone business. Ofhink kind of the evidence the case has shown that the with kind of wrote down sun over the fact that, you know, sung made their job a java platformeir open and available for free to use. But you had to agree to kind of the open source model. Which is if you use the code, youre going to have to then you know, dedicate your code. Or follow the open model. And google didnt want to do that. And so they didnt want to kind of give away their their version of what they create using java. And so talks broke down. And you know, everybody tpwhue everybody knew what that meant, right . They werent going to use java except thats not what actually google did. They made the decision that it would be more expeditious to copy some of what was in java. And to instead of designing their own they just decided that they were beginning to take it. So, thats kind of the you know, the background of the dispute. They were actually in talks. Java was made available to companies. I think there were three different types of license that you could take. One of them was the open model. Another was a fully proprietary model, and you had to pay for that. So i think there were Business Decisions that were being made on both sides obviously. But you know, it was google that kind of knead business decision that they werent going to license java under the model that was offered. Were there alternatives . Could google come up an come up with an an alternative if they wanted to . Well, that is kind of the crux of this case, right . If google wanted to do it why , could they have done it . One of the arguments google was, it was impossible or nearly so impossible for them , once they had adopted the fact that they are going to use java, to come up with their own version. Is demonstrably false. Out throughame discovery but there was a very famous and important statement internally from a google engineer, tim lynde home. Who said at google that time. ,hat we have been asked to do referring to the founders and ceo of google at the time, is to investigate what technical alternatives exist java. We have been over a bunch of these and we think they all suck. We need to negotiate. Tim just described the licensing negotiations broke down. You mentioned they just took the code. How much code did that copy . Did they copy . Googles undisputed by that what they copied were oraclesnes of copyrighted code. Its interesting. Because you can say well, that doesnt seem like much in the context of maybe millions of lines of code that you might have in a smartphone. But you know the issue is not just the lines of code. Its how theyre organized. Its all about the Creative Processes that go into coming up with a system of you know, of code. That that actually works for the users. That many things folks miss is, google wasnt just copying the code to get to code. What they were copying the cold the code for was to get the programmers. Because if you learned how to work with the java programming language and you were a, you know, good developer, and now, all of a sudden, you are faced with a new programming language that you to relearn, that is a transaction cost and you have to decide, do i want to learn how to program in the android operating system thats different than the java that i actually have spent a lot of my time learning and figuring it out. What google wanted to acquire was not necessarily the java code but it was the java programmers. So thats kind of an interesting spin on what googles intent was here. They were like copying a book because theres a established fan base for that book. Yeah, its like the copy of the white album, right . We didnt copy the white album to get the white album music. What we did was we wanted the fan base. Earlier we were talking about the danger mouse remixing the white album. The reason he picked the white album was because it was the white album. He could have picked some garageband that no one had heard of then he wouldnt have had the , fame and the immediate access to fans that he had by mixing the white album. At the time, java was one of the most, you know, popular programming languages in the world. And so this was you know, this was a choice that they made that was, you know, something that brought the group of programmers to the platform. Remember what google was really competing with, i think, as a business at least in their minds was na the iphone was out there. Was that the iphone was out there. And the app store and the iphone was out there. We need to create an app store for android. So that means that we have to create a platform that developers are going to be attracted to. Speaking personally, i actually had the very first motorola Android Phone the one with the slideout mechanical keyboard. They licensed android from star wars, lucasfilms. I remember distinctly that device. I did not understand that i was carrying an infringing device in my pocket at the time. Google because oracle sued google for copyright infringement. Just quickly, what happened through the past 11 years that this ended up as a google v oracle. Sure. 2010 based google in on patent and copyright infringement. The patents were out of the case pretty quickly and it went to a jury trial and the jury decided that google infringed the copyrights. They split on the issue of fair decision washat first appealed to the federal Circuit Court of appeals here in washington. Because of the fact that they were patents. Where the decision went. The declaring code and the structure seeks an organization of the packages entitled to copyright protection and therefore, they reversed this court and sent it back for a new trial on fair use. Back to they went District Court and decided fair use. That of course went to the jury and the jury this time found that it was excused by fair use. Now, we get a second appeal to the court of appeals for the federal circuit. Arguinge, oracle was that the fair use was not inappropriate decision and they again reversed and said that googles use of java api packages was not there as a matter of law. Law decided as a matter of that the use was not fair. It was a commercial use. It was a competing use. It was not a fair use. So now google has appealed to the court and this is a significant case, because of the two questions the Supreme Court has granted on copyright ability and whether the copying is counts as fair use. This will be the first time the Supreme Court has ruled on profitability. This will be the first time the Supreme Court decides the bounds of that statue. And the fair use decision has been a long time since the last time we had a fair use probably since the 1990s. Tim i mean, copyright has been a really static body of law. I think everybody and including, you know, if you look at some of the evidence in the case, you know, from the District Court. You know that that google knew what they were doing, right . They knew that they needed a license for their use of java. And they did not get one. Adam yeah. And if so a commercial benefit, the right for creating a competing product it would seem , at least within his stake which is copying a small fraction of an article when teaching my class. If i immediately find something that i think is relevant and and vicinity decided to incorporate this permanently into my teaching materials. It just came out recently. I might take a paragraph and put it there. Im not competing but if i continue to use it, i would have to get a license. Anything remarkable that happened in the trial that the audience should be made aware of . Anderms of the facts foundations happening at the Supreme Court . Tim yes, there was lots of evidence that was excluded by the judge in the trial. You know, the the kind of the big things were that they excluded evidence that android supersedes java in the markets that java occupied before, right . And so this kind of goes to the arguments that google has made of interoperatability, and it kind of goes to the point that, this is not really interoperable. You know, you think of something somethingroperable as working together, but that was not the intent of google in this case. So there was a lot of evidence whaty were actually google intended to do was kind of being a complete replacement. In fact, thats whats been born out in the market, that we now is nondroid and google se longer out there for smartphones. Its one of those things that i think probably was an important thing that was excluded. Also, you know, google argued that one of them markets that they didnt compete with java on were for, you know, this was just about smartphones. But they fully well knew that their next rollout was going to be to p. C. s and computers. And so at the time i think it was the day after discovery closed that google made the announcement that they were going to make this android as an operating system for computers. And so that evidence never kind of met kind of the review by the jury. And so i think there are a lot of things that that you know, even if the Supreme Court thinks that the fair use argument, you know, kind of is fair, lets put it this way. That we ought to be looking that at the decisions made by the District Court on exclusions of evidence that ought to go back. And we ought to be in a sense going back and retrying for a third time. The fair use issue. And i think get a fair read of all of the evidence that weve seen in the case. The s. A. S. Institute is free from the case . Tim yeah, so we have put together an amicus brief and are getting prepared to file it in the next few days. And obviously, one of the things that we talk about is really this false dichotomy that google has set up in this case that says that theres some distinction, right, between the type of code that they call interfaces. These a. P. I. s, that theres some magical distinction between Software Interfaces and software in general, which we all including google agree its copyrightable. Congress didnt write the statue that way. What Congress Said is that software is copyrightable. Full stop. Code is code. You know, its all, kind of somewhat functional because it operates a machine at the end of the day. But it doesnt mean that its not creative just because it operates on a machine. All software operates on a machine. Theres no kind of logical position where you can say that one type of code ought to be treated as not copy writeable. And another type of code should be written as copyrightable. For as much respect as we have for the judiciary, do we want judges making those fine distinctions . As i said before, there are, you know, generations of different types of software that that are out there, you know, that kind of build on one another that even under the current rubric that all of this is , protected by copyright, you know, we still see massive advances. So far the positions that we see from the folks that generally are open source folks which is philosophically a different way to look at the world. Weve had a really good Robust Software industry here in the united states. It is much more robust than many other places around the world. In fact, all other places in the world. And weve done it under the regime that we have. What google is looking to do is disturb all of those years and all of that experience that we have created this really Robust Software industry. Adam yeah. I mean, the u. S. Took the lead throughout the entire world. In first extending not just copyright protections, but patent software. It was in the 1980s and 1990s. And we are living the results of this now with incredibly strong hightech industry in Silicon Valley and incredibly new devices and products and services brought to us. We all can share our cat videos from the Super Computers that we have in our pockets that we call phones. My children will never know a celfin was something that could be used to talk to just somebody else. Tim you know were making , medical advances that we be able to, detecting are,r the way that we using Artificial Intelligence that has been created. All of these investments that you make in making sure that our Software Product is at the cutting edge. You know, it all requires capital. And in a proprietary Business Model that we have chosen to be in. It requires us to charge for the value of the software. Adam let me follow up quickly. Because this is a really important point. There tends to be a narrative that it is easy to code. Anybody can make that, it takes a couple hours and you can make millions. So how easy is it to write and develop 11,000 lines of code that is then used as the for lots program, or of developers and programs . Java forlets look at a second. You know, no, lets put ourselves back back in the early 1990s. Right . You know, do you remember Microsoft Windows 95 coming out and being that, you know, really this is the timeframe that we are talking about here. The folks started from scratch. So how do you create a Software Programming language and system from scratch . You know, what you do is you write kind of you come up with the first functions that you think about. Youre thinking about, well, this is what the system needs to do, right . It might be print. It might be figuring out how to get the data out of the system. And howe process data do we present it at the end . Or how do we create files at the end . This is the crux of how a computer operates. You to figure the language that youre going to use, you know, to convey that to the users so they can develop in your programming language. So you have to come up with those ideas, and you have thousands of millions of Different Things you can consider as alternatives in that. Ands a very painstaking Creative Process. Even with the simplest part of that system. Then when you say, well, now we are not just one person writing the code. But we will be a team of 10. And we are going to figure out, ok, how are we going to put this all together so that not only can we create something thats going to be a cohesive whole but we also have to keep our minds focused on who the users are and how they will perceive it. So it is this Creative Process. It is extremely difficult to do. By the way, when you say ok, now im not only going to do that today. Now i need to make it extensible. I have to think about going into the future and creating you , know, this this system that over decades now, you know, two or three or four decades. Where were going to have to make these selections and choices that make our users want to use our system. Remember java became very , popular, right . That means it was a really great interface. The programming language that they created, the structures that they created, all of these interrelationships about thousands of thousands of different choices that these developers could make over the years. It is a Creative Process and one that lends itself to copy right exactly. Copyright protection is to protect the creative expression of the authors of the work, so whether it is someone who writes a novel, or you have 10,000 authors that work for the same organization that create this programming structure, it is not only a a lot of work but it is a lot of creativity that goes into it. It is not may be the same creativity you see a novelist have, but there are so many similarities that it is really remarkable how consistent it is with the way that that novelist works. Adam this is something i struggle with. You do not have a sharp divide between the innovation, the engineers and scientists and creators and artists. We understand this in language, we have engineers talk about the elegant solution. That there is creativity and innovation and they go hand in hand. Tim why is this the way that an Android Phone looks, right . You think about famously steve jobs saying when he came out with the iphone, i do not any buttons on it. Well, you know, that is really difficult. I if we were talking about a Different Company that came up with the smartphone i kind of cringe to think what our smartphones would look like. You know . Adam first it would be beige. Tim dell is fabulous and we love them. It certainly would be beige. Adam [laughter] really, there would be and again, not talking about dell, but you think about some of the Engineering Companies out there, there would be antennas involved, i am sure, that would be visible and catch our pockets and things like that. It is the same thing when you are trying to create elegant code. You know . Code that people remember. Code that makes sense to solve the problem that they are trying to solve. That does not mean that there is only one way to do it. There are a variety of ways and and ise those choices that is creative. Adam you are describing not just creativity, but thousands if not tens of thousands of workers hours. Tim yes, it is massive. Adam what you were talking about is even before sending it out to consumers. They actually work on their processes. There is quite a process because the iphone didnt look like this when it came out, im sure. It it, you know, came out and had processes and came up with a device that seems like its pretty stable now. But you know, its always going to change. So you can think of the software. You know, the incredible sas. And you know, gets more you know, productive and get more efficient. And all of those things are creative choices that we make. Cam it is not so orrect me if i am wrong, but the you,ent seems to be oracle, invested all this effort and time and created this amazing product. Successful that we should have fair use in copywriting it. Tim i do not think i can add anything to that. Tom the whole point is bring successful products and services to market, and Creative Industries and in tech industries. Tim i think we have to be very concerned about not only what law,case does to copyright copyrightll of these lets say all of these legal regimes that companies have operated under for now four or five decades relating to how we license our software to our users can be disturbed. So it is actually contract law that will be impacted by this decision as well because if there is no copyright, then what do our licenses prohibit . Adam what can they prohibit . Tim what can they prohibit . So that is a really interesting question, i think, that ought to be something that the supreme , you know, at very weh the jaded view here that really are disturbing something that has been, you know, stable. And not only in a proprietary model, but if you look at the opensource model, how did they distribute their code . Under a Software License agreement. If there is no copyright, how do enforce the provisions of that agreement . How do you keep copying the work and Going Forward with their own . The answer is you cant. Adam lets open it up to the audience. There will be a microphone. I see first in the back. And then in the front too. Yes, my name is roger coccetti. And i have a couple of questions. And i think you have done an effective job in presenting your position, but two things i hope i hope you could go back on. First of all, if copyright what happened to the Patent Infringement issue . As secondly, if the case is clear cut as you are describing, how could a jury have a jury have found twice that this was fair use . It almost sounds like you are saying, i stole the book and once i got it i talked the jury into saying i could do whatever i want with it. Maybe i am really asking what the arguments are on the other set that would persuade juries to say that this is fair use, even though assuming you said everything accurately, it was indisputably copyrighted . Fair use is not i mean, theres a long use of history of fair use. So how does this fit into fair use i guess is the real question. Lastly, why are how are other Technology Companies coming down on this issue, you know, why are they taking the position that they are taking . Thank you. Adam that is three questions. I apologize. These are great questions. I want to make sure we leave time for questions for everyone. So feel free to quickly answer the ones you want to answer. Tim sure. So the patents were dismissed. I dont know why they were. Theyre completely separate from the copyright claims claimed. And so these are independent claims on fair use. The jury actually the first time deadlocked on fair use. So it was not a decision by the jury. The second time they did find fair use. , think that that was generally you know, because they did not get all of the evidence. That i think was kind of excluded in the case presented to them. And i think the federal Court Circuit was right, that the commercial use and the commercial nature of the use and the replacement, not the kind of interoperability, but it is really replacement, i think that that kind of cuts so far against a fair use decision that, you know, it probably wasnt the right decision by the jury. But, you know, i dont want to get into disturbing jury verdicts. Adam it was interesting you mentioned that the jury agreed that there was fair use. And a very successful narrative has been created around that, but oracle is trying to copyright the functionality of the interface, which is a long understanding of it. And you cant do that. I think that we were talking about the 11,000 lines of code that was the issue. You know, i mentioned the book. It reminds me of the google books litigation where fair use prevailed in that case. Any parallels here between this case and the google books that you see . Tim i think it is similar. Me back before the google books case, right, that it would have been ok to just go through the library , the public library, and get a bunch of books and scan them in. And do what google had done, i would not have thought that that would be a closed question of fair use. Kindn, i think that it was of a twisted decision at the end that ended up there. But the philosophy i think, is , the same behind it which is, were going use it. We are just going to do it. And that is a business decision thats been made. And i think when youre you courtt is the job of the and of the role of the court to say you know, when those kind of Business Decisions are made and its kind of anti, you know, the current copyright regime that we have, its for the courts to correct those problems. Adam all right in the front here. I just want to emphasize again. Ensure that your proposition ends with a question mark. [laughter] you mentioned that they were three types of licenses and one of them was proprietary. So they could have actually paid , i presume, to have their proprietary decision. The decision not to do that, how expensive would that have been . It seems crazy because google has some money. Tim yes, thank you for that. I do not know. I have no idea what the was at the time, but i imagine it was probably an expensive license. Adam by the way, the same point was made with the google books. The publishers and authors of said, you could have come to us, we wouldve licensed you. We would have had more people see our works through those licenses, but google said no, we will just copy the works and then you can sue. So it is a practice that has been recently identified in the ip space, where it is cheaper and easier for a business in the short term to just infringe on iprights, impose upon the owner the cost and difficulty of suing them. In the far back. Assume for a moment that software had been patentable, copyrightable, how would that have changed the Competitive Landscape of the Software Industry . Would it have been better . Tim well, software is both patentable and copyrightable. And i think the way that i at least look at it is the patent protects the inventions, right . Protects theight creative expression of the authors when they created the code. So that is and when they created the sequence and organization of their code. So really the regime that we have now is both patent and copyright. And it is not Just Software that has multiple ways of protecting something, you know, some piece of intellectual property but it is interesting, again, that kind of given all of these different protection schemes that we have here in the united states, we still have the most Robust Software industry in the world. So something is working is kind of my point and we should be careful before we disturb it. Two things come to mind. Samsung and apple, went on for years. Only the lawyers benefited. And schwartz committed suicide. And then the government reversed its decision. It was on articles and assigns journals. So look and feel. That was very vague. This is a much more precise argument. And you have a correct sense of this. When i was a contracting officer, i dealt with sas. They always wanted the Software Maintenance upfront. Everybody else stayed in the rear. Tim ok, thank you. Thank you for being a customer. I appreciate that. You know, sas is Great Company that has done a lot for the uses that our customers make of our software, just phenomenal. And we really love our customers. And i think in order to continue to become you know, kind of one , of those customers or companies that is on the cutting edge, this is what we need. We need an ability to determine what our Business Model is. It is really for us to determine that, i think. Once we figure out that the Legal Framework is how the Legal Framework that were left with allows us to make those decisions and choices. But what we are seeing in this case is an organization that is not a tech company. Google is not really a tech company. What they are is an advertising company. So they give away their tech, right . They give away their software that they develop. They give that away for free except for their Search Engine , that they completely control and lock down. So their valuable stuff they keep, but they also make their money on advertising. There are a bunch of other companies. I think the gentleman here asked about why are other Tech Companies like microsoft and amazon supporting, and i dont know if amazon has come out and supported googles position, but microsoft and ibm and red hat have come out and supported googles position. Well, why is that . Well, you know, they dont make their money on their tech either. They are changing into Cloud Services businesses. Right . So you see how they are making their money is charging for compute cycles in their big Cloud Services facilities. And they kind of speaking about microsoft, they make their money not distributing their software anymore. It is all in the cloud. So they are kind of charging, you might all be paying microsoft 99 a year for access to their suite of software. Well, that is a very different model than actually charging for the software. Youre charging for the access to the software. And they are getting compensated based on the cycles. So software has become the content for these big Cloud Service providers. And if they can get the content for free or for a reduced price, boy, isnt that great . Wouldnt netflix like to have disney for free . [laughter] there. Es, right thank you so much. In regards to lets assume this case works inside of oracle. How will the tech field change . You talked about google, all these large corporations able to use it for free, but how is this weighing on oracle if they have this copyright preventing these organizations from copywriting all of these lines and limiting the field altogether . Making it a couple of organizations. Since were going to the most metaphysical and technology in the future, how is that going to prevent upcoming actors or young entrepreneurs from pursuing this . Tim that is a great question. I think that what were arrange on oracles side of this equation is preserving the status quo that we have always seen in the industry. And you havent seen any lack of innovation in the software of the current intellectual property rubric that we have in software, and so the changes really on the side of google. If you really want to disrupt an industry, you know, say that software, any type of software is uncopyrightable, i think that would be a change that would really disrupt, you know, not only big businesses but it is hard to see how what the industry looks like after that kind of change. Although i would expect we would see the Big Companies get bigger. Adam to reemphasize those points, i mean, we have had andst copyright protection robust patent protection for the past several decades. And what this has facilitated is all of the myriad Business Models, the different approaches to distribution of products and services that we have, it is why are innovation economy is so strong and vibrant. It is not because ip serves as a lockdown. Intellectual property is property. What is property but a platform from where people can make choices about how they choose to structure their businesses and enterprises, creating a desire to get in value chains the way that apple has. Or creating opensource Business Models like red hat and ibm have. In fact, ibm is on record saying that patents are necessary. Because of the forced disclosure that patents require, you are forced to disclose your code and the way that your software functions. So intellectual property lockdown is the way you were characterizing it. Thats how we experience it socially because of the lawsuit. You hear about the infringement lawsuit. , as the it facilitates studies have shown, and at the department of commerce has shown, there is trillions of dollars exchanging hands between business persons and innovators and startups. Something google doesnt try to talk about much. They received a patent. Their original version of their search algorithm, back in 1998, they used that to obtain Venture Capital financing. We see it on shark tank every week. What is the first question they ask . Do you have a patent on this . When they say no, you just went on National Television and gave away your idea. So why should we invest in you . Your response is perfect. Tim thank you. I think so also, you know, when you look at a business like ibm. , red hat, they have come down on googles side by saying basically that you could protect these interfaces by trade secret, which is really interesting, right . Because how could you create an interface that is supposed to be used by people who dont work for your company, your customers, your developers, and folks and protect it by trade secret . Adam yeah. Tim im astonished. Adam which by the way, google made so many changes to search algorithms since they invented it, that is how they protect their algorithms, through trade secret. They protect it vehemently. That is the key to a lot of their income as an advertising company. Is there another question up here . No, it is not working. Ok, speak loudly because it is being recorded. [indiscernible] google has by oracle. Adam lets repeat the question. Tim exactly. So the question was if google had copied the 11,000 lines of code before it was bought by oracle, would there have been a case, and at answer is yes. Actuallynk that is factually the way this happened. The transition to oracle happened after the copying occurred. So, yes. Adam anybody else in the audience . To circle back to the topic in your amicus brief about how google is creating this artificial distinction between apis and software subject to the copyright act. We have not seen the court but we have seen it decide cases involving new types of technology. Those decisions rest on those various distinctions between types of technologies. There was a recent decision saying location data is different than other types. Therefore the doctrine applies differently. Do you think that i know it is hard to read the tea leaves in these different scenarios. But do you think it will come down to whether or not the judges at the end of the argument, writing their opinions, and apply it to the interpretation of that, how instrumental do you think that distinction will be . Tim well, i think that is the fundamental question in the case. Is there this artificial distinction between api software and other software. Again, kind of going back to my there are versions of types of software systems, Third Generation programs, fourth generation programs and on and on and on. They all build on each other and to say a certain class or a certain part of software a , certain part of that software is unprotectable and other parts are when congress has so clearly said software is protectable. It seems to me like that would be a very difficult you know, kind of distinction to draw. Think in thisi if you look at the creativity that goes into creating those user interfaces, in many cases, it is more creative than the code that were saying is the stuff that everybody agrees is copyrightable. In fact, there is this kind of max if you look at the actual briefing you will see google relates to this kind of max example where it is give us the maximum value of between two values. Thats what youre going to return. And this is one of the functions that they say well, the math part of that, which is compared to numbers and return the larger is not that creative. Right . The structure that the sequence and organization and structure of what we call the declaring code, the api part, is very sophisticated. And we all agree, yet we all agree that the code that is not as sophisticated and probably far few choices exist for is copyrightable, including google. And so, you know, to me, it is really a pretty simple, you know, decision here that you know, congress didnt make distinctions between these two different types of code. This is merely hindsight, good lawyering, or at least the best lawyering that we can do to you know, basically paper over the business decision that was obviously made here to violate Software License agreement. Adam wait for the mic. Thank you. Im not a technologist. But what are the practical Business Applications for google if they lose this case, in terms of their products . What happens if the status quo changes . Tim sure. The ultimate outcome of the case would be i suppose damages. I dont know whether i imagine there is a possibility, of an injunction in the case of intellectual property. Of course, that would be kind of yet another element of decision that would have to be done by the courts and the courts of appeals and things like that. But what i would expect to see is that google would relent and pay oracle a license fee. Adam right. Even if there is an injunction issue, the function of the injunction is to then have a license agreement reached between them, which is what happens 99 of the time. The injunction is not the end of the story. The story is the beginning process which should have begun 10 years ago. Now lets have our business discussion. Lets create the license agreement. I expect there will be damages for the past 10 years or so infringement. But then it will turn into something Going Forward, which is very common and typical. Tim the other thing that might buten, and i am remembering you cannot quote me on this, but that google has already fixed the problem. You know, Going Forward may not be an issue. In fact, they protest it cannot be done well. But there are examples of these kind of apis being rewritten and spring is one of the things that oracle itself created an alternative api to the java the code involved specifically in this case. So i think that, you know, there are certainly ways that google could and may have already adjusted its business Going Forward. Adam i would like to followup on a question asked earlier about the courts making distinctions. You talked about how if the court ruled in favor of google it would establish legal and commercial practices. Also, what do you think Going Forward if the courts start making these distinctions over what is copyrightable, what does this do in terms of the legal stability of the law . Lisi cases where people say this wills is different we see lots of cases where people are trying to say this time this is different . Tim i think that is the likely state of affairs Going Forward is that we will see things that we think are easily copyrightable come into question because you know, i dont know if you have seen there is a , near thelexandria patent office. It is a work of art, but it is also functional. Is that functional . Is that copyrightable or is it a work of art and is that copyrightable . So Software Code is both functional and also a work of art. And that is the thing that i think we should leave folks with. Adam yeah. Thank you all for coming to this. Thank you very much. [applause] adam this is on a special estate, not just because we have had the benefit of hearing from tim about the nature of this case and what is happening, but it is also the anniversary of the patent issued in 1990 to jacobs and his colleagues to the invention of the cdma technology. If you do not know that technology, that is the soon to be 5g technology that makes all of our smart phones smart. He is also one of the founders of qualcomm. Dateday is an auspicious of innovation and innovation history. Thank you again to tim. Thank you to the audience for the great questions. Appreciate it. [applause] tim thank you. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [indiscernible] [chatter] announcer politico held a discussion today on how campaigns plan to engage with nonvoters this election cycle. Watch it tonight at 8 00 p. M. Eastern on cspan. Later, President Trump holds a rally in phoenix, arizona, the first of three Western State rallies this week. Watch it at 9 00 p. M. Eastern on cspan, online at cspan. Org, or listen on the free radio app. Announcer cspan, your unfiltered view of government. 1979, and cable in brought to you today by your television provider. 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