Transcripts For CSPAN2 Hudson Institute Discussion On Google

Our event today on the google versus oracle case, titled consequences of the case. I actually have my own subtitle which is copyright and the future of the industry, a significant case and i am delighted to have 2 wilson here to speak to us about the relevant legal policy on commercial issues and raised by this case. My name is adam maasoff, the chair of the International Forum for intellectual property at the hudson institute. This is our novel even, delighted to have it on such an important issue with such a great speaker. There will be events, sponsoring and promoting datadriven research that explores and investigates the importance of intellectual property and not just driving the Us Innovation economy for the past 230 years but all innovation economies creating a foundation for Flourishing Society and we hope to play a role that factbased research and datadriven in the hands of our policymakers as they consider the very important issues such as decisions that have to be made in important cases in court and legislation that has to be considered before congress and regulations that will be adopted by our agencies. Im delighted to have as our speaker tim wilson, would like to emphasize we are both speaking in our individual capacities only and not on behalf of our respected institutions. Normally i do not give large or long introductions to people. If you wish to discover mister wilsons incredible accolades throughout his career, in ways our revolution, choose the browser of your choice, the Search Engine of your choice, being or google or whatever you wish. Thank you for being here today. Before you talk about the google versus oracle case many of you have not heard of the facts and wondering what is this organization and why are you talking about this case from the perspective of your work . Can you tell us about your company . Sass is a large privately Held Software Company in cary, North Carolina which is south of here and we have been in the Software Business since before there was a Software Business in 1976, founded but have our roots going back into the 60s. The problem that sass was trying to solve is determine patterns in data that you couldnt see with the human eye or people couldnt perceive statistics, analytics, Artificial Intelligence, all of those things sass is best at developing and we have 14,000 employees around the world, we are like i said a large Software Company. We call it a proprietary Software Company. A company we actually make money directly from our software and our customers are happy to participate with us and helps us to develop Software Going forward. Also interestingly apropos about this case is we have an api today that is the main way that our software is interacted with with by our users and so they create programs and that tells the computer kind of what to do and it is very useful to have those apis be easy to understand and used by our users and that has been one of the major reasons sas has been successful at becoming a big Software Company and one of the reasons this case is very important. The case centers around an ip api. For the nontechies, api stands for . Application program interface. What it actually means, i think in a technical sense is it kind of is shorthand ways to refer to and access big blocks of computer code. Any of the programmers in the audience might know the various generations of software, first Generation System, secondGeneration System, thirdGeneration Systems, apis are referred to as the fourth Generation System where we are not directly programming in a programming language like c but we are programming the systems in big blocks of code. It is an important and modern way to interact with the code. We will dig into more details and moderate back and forth between us and the way the policy issues and open up to questions from the audience in 20 or 30 minutes. March 20 fourth the Supreme Court will be hearing oral arguments in google versus oracle. It began as oracle versus google in 2011. The case is centered around the rise of the device i held up that i used to refer to as my infringing device i would talk at patent conferences, now i referred to as my infringing device because oracle versus google case as well for multiple levels of infringement. Give me the relative background to the case and why i am making these references. Back in the 1990s, java was created by sun microsystems, a new, Popular Software Development Programming system, later sold to oracle. That is how we got this case styled as oracle being the main actor here. The main strength of java is you could write your code once and run it anywhere and that was the main thing java gave to us that we didnt have before in the marketplace and it was a useful feature. At the same time what was happening, at least a little later, we saw the rise of the smart phones. We saw the iphone come out in 2007 and that was really for a company like google, something they dominated, the search on the pc platform and kind of the computer but we had a new platform out there that the folks who were thinking about this issue said this changes everything and that was the smart phone and what we saw were was this platform that java had created or that son had created that allow you to run on any platform but that included smart phones and in smart phones they had their own version of java so that was kind of a popular way to create apps on the smart phones. And i guess around that time google acquired a Company Called android and many people dont remember android was actually google in the beginning and so that was something that google thought this is the way we are going to go into the smart phone business and of course when they got it may be they didnt know that it wasnt complete or wasnt as good as they thought it might be so that at the same time was hedging their bets and talking to son and saying we want a license son or license java as well as potentially another alternative to get into the smart phone business and the evidence of the case has shown that the talk broke down with son over the fact that son made their java platform open and available for free to use but you had to agree to the open source model which is if you use the code you then have to dedicate your code or follow the open model and google didnt want to do that so they didnt want to give away the version like they create using java so talks broke down and everybody knew what that meant that they werent going to use java but that is not what google did. They made the decision that is more expeditious to copy some of what was in java. Instead of designing their own they decided they were going to take it. This is the background of the dispute. They were in talks so that java was made available to companies and developers . There were three types of licenses that you could take from java, one of them was the open model, a fully proprietary model and you had to pay for that. There were Business Decisions that were being made on both sides obviously but it was google that made the business decision that they werent going to license java under the model that was offered. Were there alternatives . Could google have come up with an alternative if it wanted to . That is one of the crux is of this case. If google wanted to do this could they have done it and one of the arguments that google has proffered is it was impossible or nearly so impossible for them, once they adopted the fact that they are going to use java to come up with their own version and that is demonstrably false. It came out through discovery, there is a famous and important statement internally from a Google Engineer who said to the android lee ruben, quote, what we have been asked to do referring to larry page and sergey brandt, the founders is to investigate what technical alternative for android and chrome, we think they all suck. We need to negotiate a license for java in the terms that we need and asked him just described the licensing negotiations broke down and how much code did they copy . It is undisputed by google that what they copied were 11,500 lines of oracles copyrighted code. You can say that doesnt seem like much in the context of millions of lines of code that you might have in a smart phone but the issue it is not just the lines of code but how they are organized, all of the Creative Processes that go into coming up with a system of code that actually works for the users because i think one of the things that many folks miss is google wasnt just copying code to get the code. What they were copying the code for was to get the programmers because if you learned to work with the job of programming language and you were a good developer, and all of a sudden you are faced with a new programming language that you have to relearn, that is a transaction cost that you have to decide do i want to learn how to move into this android operating system that is different, learning and figuring out, what google wanted to acquire was not necessarily the job, the job of programmers. That is an interesting spin on what googles intend was . There is an established fan base. We talked about the copy of the white album, we did not copy it to get the white out the music we wanted the fan base. Remixing the album, the reason was because the white album, he could have picked something no one had heard of but then he wouldnt have had the same and immediate access to fans that he had. At the time, java was one of the most popular programming languages in the world. This is a choice they made that was something that brought that group of programmers to the platform. Remember, what google was really competing with as a business at least in their minds was the iphone was out there and the apps store and the iphone was out there and we needed to create an apps store for android and that means we have to create a platform that developers are going to be attracted to. Speaking personally i had the first motorola Android Phone with a slide out mechanical keyboard. Least from star wars and lucasfilm. I remember that device and did not realize i was carrying an infringing device in my pocket at the time. It was ogilvy google, sued for copyright infringement. Very quickly, what happens through the past 11 years of litigation that ended up with google versus oracle where google is appealing to the us Supreme Court . Oracle sued google in 2010 based on patent and copyright infringements, the patents were out of the case pretty quickly and it went to a jury trial and the jury actually decided google infringed the copyrights. They split on the issue of fair use. That decision was first appealed to the federal Circuit Court of appeals in washington because of the fact there were patents in the case. This is where the decision went. The cafc said the declaring code and this is out of the case, the declaring code and structure in sequence and organization of the api packages are entitled copyright protection and therefore they reversed the District Court and sent it back for a new trial on fair use. So then they went back to the District Court and decided fair use. That went to the jury in the jury this time found it was excused by fair use so now we get a second appeal to the court of appeals in the federal circuit this time oracle was arguing that the fair use was not an appropriate decision for the jury and they again reversed and said googles use of java api packages was not fair as a matter of law and so they decided as a matter of law that the use was not fair. It was a commercial use, a competing use, it was not a fair use. So now google has appealed to the Supreme Court. This is a significant case. The two questions the Supreme Court has granted review on his copyright ability of api and whether this copying counts as fair use. When was the last time the Supreme Court heard a case about the software . Im not aware. This will be the first time the Supreme Court has ruled on copyright ability of software programs. Congress waiting in 1980 and amended the copyright code, the code is copyrightable. This is the first time the Court Decides the bounds of that statute that congress enacted and fair use decision was similarly a very long time. Probably since the 90s. Copyright has been a static body of law. Everybody including if you look at some of the evidence in the case from the District Court, you know that google knew what they were doing. They knew they needed a license for their use of java and they intentionally didnt get one. Commercial benefit, create a competing product, at least on its face not the scope of what is typically considered fair use which is for use in a classroom, teaching my class and find something that is relevant and havent decided to incorporate this permanently into my teaching material that just came out recently and might take a paragraph. Im not competing with it and that will be the license. Anything remarkable that happened in the trial the audience should be aware of . Understanding the facts and foundations for what is happening at the Supreme Court . There was lots of important evidence excluded by the judge in the trial. Kind of the big things were they excluded evidence that android supersedes java in the markets java occupied before. This kind of goes to the arguments google has made of interoperability, and kind of goes to the point that this isnt really interoperable. You think of something being interoperable was working together. That was not the intent of google in this case. There was a lot of evidence that what google intended to to was kind of be a complete replacement. In fact, that has been borne out in the market, we now have android and google s e is no longer out there for smart chrome. It is one of those things that i think probably was an important thing that was excluded. Also google argued that one of the markets they didnt compete with java on were for this was just about smart phones but they fully will knew that their next rollout was going to be pcs and computers. I think it was the day after discovery closed that google made the announcement that they were going to make android available as an operating system for computers so that evidence never kind of met kind of the review by the jury. There are a lot of things that even if the Supreme Court thinks that the fair use argument kind of is fair, lets put it that way, that we ought to be looking at the decisions made by the District Court on exclusions of evidence that out 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. The Sas Institute filing an amicus brief in the case . Yes. We put together an amicus brief and are getting prepared to file it in the next few days and obviously one of the things we talk about is really this false dichotomy that google has set up in this case that says there is some distinction between the type of code they call interbasis, apis, that there is some kind of magical distinction between Software Interface and software in general which we all, including google, agree is copyrightable. Congress didnt write the statute that way. What Congress Said was software is copyrightable. Code is code. It is all somewhat functional because it operates the machine in the day but it doesnt mean that it is not creative just because it operates on a machine. All software operates on a machine. There is no kind of logical position you can say one type of code are to be treated is not copyrightable and another kind should be and do we really want for as much as respect as i have for the judiciary do we want judges making those fine distinctions . As i said before there are generations of different types of software out there that build on one another that even under the current rubric that all of this is protected by copyright we still see massive advances so all of these kind of the sky is falling positions that we see from folks that generally are open source folks which is philosophically a different way to look at the world with respect to copyright ability. What we see is we have had a really good Robust Software industry in the united states. It is more robust than any other place around the world. And we have done it under the copyright regime we currently have. What google is looking to do is disturb all of those years and all of that experience that we have created that is really Robust Software industry. The us took the lead throughout the world in first extending not just copyright protection but patent protection as well to Computer Software programs in the 80s and 90s and we are living the results of this with incredibly strong hightech industry in silicon valley, incredible new devices and products and services. We can all share our cat videos instantaneously from supercomputers we had in our pockets. A phil used to be something you could talk to someone in. We are also making medical advances using our software that we wouldnt be able to detect cancer the way we are detecting cancer using Artificial Intelligence that sas has created. All of these investments that we make in making sure our Software Product is at the cutting edge requires