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Oct 17, 2020

Supreme Court Justices Slam Google in Copyright Case That Could Break Up Their Tech Monopoly

By Shane Trejo

A key lawsuit that is currently playing out in the courts, Google v. Oracle, has the potential to break Google’s unethical corporate monopoly over the tech industry without major federal action.

Google has been accused of stealing over 11,000 lines of another firm’s code in order to develop its popular and lucrative Android operating system. Before Android, Google was not even in the top 100 American companies pertaining to revenue in 2010. After Android, Google is just outside of the top 10 American companies in terms of revenue today.

Google is accused of exploiting Java SE software that was programmed by Sun Microsystems in order to make their obscene profits. Sun agreed to grant a three-year license to Google for a total of $100 million, but Google did not want to pay the price to use their software. They allegedly decided to just steal it instead, arguing that it was not copyrightable. This is largely the basis of the lawsuit.

The case has made its way all the way up to the Supreme Court, and the various justices do not seem to be impressed with Google’s legal arguments as to why their alleged theft of the code was justified and proper.

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“I’m concerned that, under your argument, all computer code is at risk of losing protection,” Justice Alito said.

“Others have managed to innovate their way around it,” Justice Gorsuch said, adding that Apple and Microsoft have “been able to come up with phones that work just fine without engaging in this kind of copying [of Java].”

“You’re not allowed to copy a song just because it’s the only way to express that song. Why is that principle not at play here?” Justice Kavanaugh asked.

“Cracking the safe may be the only way to get the money that you want, but that doesn’t mean you can do it. I mean, if it’s the only way, the way for you to get it is to get a license,” Chief Justice Roberts said.

Former legislative leaders who worked on copyright law for decades have rejected Google’s flimsy arguments as well.

“Google argues that the computer coding it copied is not entitled to the protections of the Copyright Act. However, in my capacity as the chairman of the House Judiciary Committee, chairman of the Subcommittee on Intellectual Property, Competition and the Internet, and co-chairman of the Congressional Internet Caucus, I spearheaded the first comprehensive review of copyright law since the 1970s and oversaw numerous updates. On day one, it became evident that the Copyright Act clearly extends copyright protection to all “original works of authorship,” said former House Judiciary Chairman Bob Goodlatte.

“I was serving in the Senate when Congress adopted CONTU’s recommendations by passing the Computer Software Copyright Act of 1980. At the time, Congress did not carve out any subset of software from copyright protection. Indeed, CONTU actively considered whether some subset of computer programs should be carved out as uncopyrightable, and decided the answer was no,” former Senate Judiciary Chairman Orrin Hatch said.

Additionally, the Department of Justice under the Obama administration as well as the Trump administration have submitted friend-of-the-court briefs against Google. It is looking like the tech giant may end up losing this consequential lawsuit, which may cut Google down to size without substantial federal action.