The Oracle v. Google litigation currently before the Supreme Court over Google’s copying of 11,500 lines of Oracle’s computer code has prompted the publication of many articles, as well as amicus briefs from interested parties, but I want to step back and make a broader observation.
Law doesn’t exist in a vacuum. It is a reflection of the principles by which societies — at least democratic ones — have decided to order their lives. Law is an outgrowth of politics and sociology — the cultivation of norms for life in an interdependent universe, both reflecting and shaping our values. So while Google and Oracle may, given the constraints of litigation, argue on a technical level about the scope of copyright in a very technical setting, this case is ultimately not about technicalities — it is about defining a rule set for the society that we want to be.
There are compelling and competing values presented in this case. Google’s position is premised on the notion that society’s long-term interests are best served by minimizing creators’ legal rights under copyright in favor of allowing competing uses of original works — and thereby competition, albeit at the expense of the creator. But — at the risk of being repetitive, this is not a technical argument limited to the scope of protection of computer interfaces.
This reflects Google’s broad views and those of the parties supporting Google’s position, and is manifested in Google’s positions on public policy and litigation around the world. From their litigation position in defense of mass copying in Google Books, to their opposition to the publisher’s right and an enhanced platform duty of care in the EU Copyright Directive, to their efforts to secure global adoption of fair use and exemptions from liability in line with the Digital Millennium Copyright Act.
At heart, they defend a theory of efficient infringement — that the complexity of seeking and obtaining permission in order to innovate poses too high a price, and that where the public would gain from a particular innovation, intellectual property should not be a barrier to its creation and distribution.
Avoiding liability for the use of works created by authors isn’t just good for their bottom line — it’s a central tenet of their evangelism about the value of permissionless innovation. This case is just one manifestation of this much broader principle.
Are they right? Do we advance the goals and interests of society by removing the ability of individual creators (and inventors) to prevent the use of their works in the creation of new works, products and services? Does progress demand that we forgo consent? I would argue that this is manifestly the wrong path — that innovation based on the erosion of agency and free will is not the kind of innovation that will empower and enrich modern societies. Indeed, it is part and parcel of our enfeeblement.
Google’s worldview and its support for expansion of fair use through more and more attenuated notions of transformativeness limit the role of licensing under market conditions. Furthermore, the traditional notion of fair use as an escape valve or form of redistributive justice limiting the power of those in a dominant position needs to be completely reimagined in the current environment.
Fair use is generally portrayed as a lever against monopolies, exercised by those without market power against those who do. But as noted by Ben Sobel in his 2017 article “Artificial Intelligence’s Fair Use Crisis,” “Today’s digital economy upends this narrative. … This pivot in market dynamics should prompt a corresponding shift in attitudes towards fair use. The doctrine no longer redistributes wealth from incumbents to the public; it shifts wealth in the other direction, from the public to powerful companies.”
I hope that the court, and court watchers, will keep this broader context in mind as they necessarily consider the technical aspects of this case, and not lose sight of the fact that we are presented with a clash of ideologies that goes far beyond the technical issues related to computer interfaces.