National museum of the American History and of the American Indian and of africanAmerican History and culture. In march, the Supreme Court is expected to hear google vs. Oracle dealing with possible copyright implications for Software Development the Hudson Institute hosted a discussion on the upcoming Case Highlights the importance of code being protected by copyright laws. All right. I believe that we will now begin. So thank you all for coming to our event today on the google v. Oracle case. 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. Tim my pleasure. Thank you. Adam so i wanted to kick off our discussion before we Start Talking about the gooling 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 fastiness institute so could you please tell us a little bit about your company . Tim sure. Fast is a largely held software north in carried, 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 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. 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 a. P. I. Which is the main way that our software is interacted with by our users. Programs eate and that tells the computer kind of what to do, and its very useful to have those a. Pimplets be easy to understand and used by our users. And that has really been one of the major reasons that fast has becoming a ful at Big Software Company and one of the reasons this case is very important. Adam 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 isnk in a technical sense to nd of a shorthand ways 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 really the the referred to as the fourth generation system, where were not actually directly programming, you know, in in, you know, a a programming language like c. But were programming the system in big blocks of code. And so its 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. The Supreme Court will be 31 ing oral arguments march in oracle vs. Google. When oracle first sued them for copyright infringement. I used to refer to this as my infringe 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. Can you give us some of the relevant background here and why im making these references . Sure. Awesome. Ck in the 1990, java was created by micro systems as a new very popular Software Development, you know, programming system. D sung 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 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 aps on on this smart phones. Around so, you know, i guess around that time, google acquired a Company Called android. And many people dont remember the beginning. This was something we are going to go into the smartphone business. And of course, when they got it, maybe they didnt know that it wasnt complete or wasnt as good as they thought it might be. And so they were at the same time also kind of hedging their beats and talking to sung and saying well, we want appear license, son. Or we want to license java as well particularly another alternative to get into the smartphone business, and i think, you know, kind of the evidence of the case has shown that, you know, that that the talk kind of broke down with sun. Over the fact that, you know, sung made their job a platform 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 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 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. Are they were actually in talks. Was the made available two developers . 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. You know, it was google that kind of knead business decision that they werent going to license java under the model that was offered. And were there alternatives . Could google come up an alternative if they wanted to . Well, thats kind of the construction of this case, right crux of this case, right . Wanted to do it why didnt they do it . One of the things that it profored was that it was impossible or nearly so impossible for them to once they have adopted, you know, the fact that theyre going to use java to come up with their own version. And that, i think is dough monsably false. Demonsstraably false. It came out through discovery but there was a very famous and important statement internally tim a google engineer, lynde home. Ho said at google that time. What weve been doing, he was referring to the founders and c. E. O. It is to investigate what alternatives exist. Weve been all there and we concluded that they all suck. Tim just described the licensing negotiations broke down. How many how much code did that copy . So its undispute by google, that what they copied were 11 thrks 500 lines of oracles cop illrighted 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 u. S. E. And think one of the things that many folks misis, google wasnt just copying the code to get to code. Hat they were copying the cold and to get 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 days fasted with a new programming , nguage that you to relearn that is a transaction cause do a want to learn how to do in this program and the android operating system thats different than the java that i actually have spent a lot of mihm my time learning and figuring it out. What googed 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 . There were copying a book because theres a established an base for that book. Tim yeah, its like the copy of the white album, right . We didnt copy the white album to get the white album music. What you were trying to establish is the fan base. Danger max and the reason why he picked the right elbows. Her could have fixed a garage fan but then he wouldnt have had the fame and the immediate access too. Thank you for fans that you have by mixing it. 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 something ou know, 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. And the app store and the iphone was out there. And we needed to create one for an droit. And android. And so that means that we have to create a platform that developers are going to be attracted to. I actually had the very first motorola Android Phone the one with the slideout mechanical keyboard. They like the android on the lucas films. [laughter] i remember distinctly that device. I did not understand that i was carry ang infridging devens. Oracle sued there for copyright infringement. What happened through the past 11 years of litigation that this ended up as google. It is appealing to the u. S. Program court. Based on hey copyright infringement. It went to a jury trial and the jury actually define decided that, you know, that thoor google infringed the copyrights. They split on the issue of fair use. And so that decision was first appealed to the federal Circuit Court of appeals here in washington because of the fact that there were patents in the case. This is where that decision went. The cafc said that the declaring code and this is kind of out of the case the declaring code and the structure of sequence and organization of the a. P. I. Packages are entitled to copyright protection and therefore, they reverse the District Court and send it back for a new trial on fair use. So then they went back back to the District Court and decided fair use. Now, of course, went to the jury and the jury this time found that it was excused by fair use. Right . Appeal e get a second to the court of appeals to the federal circuit. This time oracle was arguing that, you know, that fair use was not an appropriate decision for the jury. And they reversed and said that googles stands was not fair as a matter of law. And so they decided as a matter of thraw the use was not fair. It was a commercial use. It was a competing use. It was not a fair use. Adam and so google has appealed to the Supreme Court. And this is a really significant case, right . Because the two question nas the Supreme Court has granted review is the copyright ability of a. P. I. And whether this copying of the a. P. I. If it is copyrighted it counts as fair use. When was the last time the Supreme Court heard the copyrightbility of a Software Program . I am not aware. Adam this is the first time they will rule on the copyright ability. This will be the first time knew the Supreme Court decides the of that statue. And the fair use decision has been a long time since the last time we had a fair use 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 that they intendly didnt get one. Yeah. So and commercial benefit, right for create a competing product that it would seem at east 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 terlts. 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 happen in the trial that the audience should be made aware of . Its kind of understanding the facts and foundations for whats going to be happening at the Supreme Court . Yes, there was lots of evidence that was excluded by he judge in the trial. You know, the the kind of he big things were that they excluded evidence that android super seeds java in the markets that java occupied before, right . And so this kind of goes to the arguments that google has made of interoperatebility and it kind of goes to the point that, interoprable. Ally you think of something being i nteroperable and that was not the intent of google. There was a moment where they were actually what google intended to do was kind of being a complete replacement. In fact, thats whats been born in the market. Have google throughout for smart phones. Its one of those things that i think probably was an important thing that was excluded. Also, you know, google argumented that, you know, that one offer the 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 computers. And 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 available as an operating system for for computers. So that evidence never kind f met you know, kind of the review by the jury. And so i think there are a lot of things that that you now, even if the Supreme Court thinks that the fair use argument, you know, kind of is is fair, lets put it this way. That we ought to be looking that decisions that were 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 and i think get a fair read of all of the evidence that weve seen in the case. Adam the s. A. S. Institute is is that free from the case . Yeah, so we have put together an amicus brief and are getting prepared to file it in the next 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 ype of code that they call interfaces. These f. 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 cop illrightable. Full stop. Code is code. You know, its all, kind of somewhat functional because it operates a machine hat the end of the day. But it doesnt mean that its not creative just because it operated on a machine. All software operates on a machine. Theres no kind of logical