Pay No Attention to That Man Behind Curtain

This past January, Google filed its brief on the merits of its case with the U.S. Supreme Court and sought the support of outside groups to bolster its position. These amicus curiae (friend of the court) briefs create the impression that this case is of great import and controversy, and a ruling in Oracle’s favor will impede innovation.

Upon closer inspection, what these briefs reveal is a significantly different picture, one where Google is the outlier, with very little meaningful support outside the purview of its financial fingerprints.

As we discussed in a previous post, this case is not about innovation, it is about theft. Google copied verbatim more than 11,000 lines of software code, and now attempts post hoc to change the rules in order to excuse its conduct. Any objective view of technological innovation during the pendency of this matter leads to the conclusion that strong copyright promotes innovation. The Federal Circuit decided in 2014 that Oracle’s Java copyrights were valid and enforceable and the period since 2014 has seen some of the greatest advances in technology.

As those of us that have watched Google over the past few decades know, Google’s view boils down to the self-absorbed position that the work it is doing is of such consequence that the rules shouldn’t apply to them. The problem for Google is that very few outside of its self-generated atmosphere agree.

Let’s be clear, it is not commonplace or foundational in the software industry to steal other developer’s software code. Rather, what is commonplace is a confluence of interests where code is licensed to facilitate its widespread deployment, with the owner choosing the terms. The more restrictive the terms, the less likely it is to be widely deployed. Copyright licenses are the foundation of open source software as well, with more than two dozen different licenses governing open source technology, some more permissive, some less permissive. Many innovators—including, most notably, Google—use commercial licenses, with a broad range of terms.

Java embraced choice, with three different licensing alternatives, including a freely deployed open source license, and a commercial license designed to maintain interoperability. And it turns out that nobody except Google found it necessary to steal despite Java’s enormous popularity. It is not in dispute in this matter that Google destroyed Java interoperability so it is unbelievable that many of its amici take the position that Google needs to prevail in order to protect interoperability.

The other theme we see is this idea of a “convenience exception” to copyright. This concept sets up the bizarre sliding scale that the more popular software is the less copyright protection it deserves because copyright is somehow inconvenient. We do not dispute the premise that theft is convenient, but that also turns intellectual property protection on its head. And Google’s argument really boils down to the position that it verbatim copied over 11,000 lines of Java software because it would be more convenient for developers.

As we have stated, Google is an advertising company, think Don Draper, not da Vinci. Its advertising machine feeds off the data and content of others, so copyright is truly anathema to its business model. It has spent the last couple of decades curating an environment to undermine copyright and to advance its advertising interests. And while Google is entitled to its views, its views are primarily that of an advertising company not an innovator.

Google’s self-promoting world view continues to be largely unsuccessful in the policy arena because most policy makers see Google for what it is. In dozens of Congressional hearings since the Copyright Act was expressly amended to include software, we cannot find a single instance where Google’s position in this litigation—parsing some software code which is copyrightable from other code that isn’t—was seriously debated.

Our own amici, including the recently retired Chairmen of the bicameral Judiciary Committees, state that no proposals to limit copyright protections for software were ever given consideration in Congress. In fact, we are not even sure that in the decade this litigation has been pending Google has even made this argument before Congress. The reason Google fails to make headway is because its position on copyright is anathema to the consensus, and its support is largely manufactured. So, Google now asks the Supreme Court to legislate in order to overcome its failed advocacy and to change the law to provide post hoc justification for its infringement.

Google has mastered the art of curating an atmosphere to support its views, spending well over $100 million over the past decade to create its echo-chamber. While Google’s approach is generally well understood, this case is the first time its artificial ecosystem was brought to bear at the Supreme Court, so we thought a little sunshine would help along the way.

We will admit to surprise when we saw the headline that 26 briefs were filed on Google’s behalf. Google attempted to create a narrative that tech supports Google’s position, and we already made the point that tech is clearly not supporting Google’s views.

From the titles of its briefs, one might also get the impression that there is a broad community of interests supporting Google. Upon closer inspection, it appears that Google’s overall support is far weaker than it appears, and the purported controversy is far less pronounced.

In summary, out of 26 briefs, we found:

• 7 briefs representing 13 entities that received “substantial contributions” from Google;

• 8 briefs filed by entities or individuals that have financial ties to Google through grants, dues, cy pres settlement proceeds or employment of individual amici;

• 2 briefs filed by companies with a clear commercial interest in Google prevailing;

• 1 brief filed by several former U.S. government employees all of whom worked for a small government agency run by a former Google executive, despite the U.S. government itself filing a brief in favor of Oracle;

• 4 separate briefs representing a total of 7 individuals;

• A few other briefs where Google financial ties are likely;

• 1 brief submitted by a serial copyright infringer repeatedly sanctioned by the Courts;

What masqueraded as a mass show of support for Google, may not be much more than an exercise in transactional interests.

Let’s dig into Google’s 26 briefs.

In a prior post, we discussed the interests of Microsoft and IBM. We pointed out that Microsoft and IBM are commercial competitors with a clear commercial interest in the outcome of this case. We highlighted Microsoft’s efforts to undermine Java, and IBM’s efforts to acquire Java. We made the point that Microsoft previously filed on Oracle’s behalf on the question of copyrightability. And we pointed out that despite IBM’s vast legal resources, it has been completely silent on this case for a decade until now. Importantly, we made clear that Microsoft and IBM do not speak for tech as evidenced by the deafening silence from Silicon Valley and the fact that not a single brief from the other 98 of the Top 100 tech companies was filed.

That leaves us with 24 other Google amici.

Like many companies, Google publishes a “list of politically-engaged trade associations, independent third-party organizations and other tax-exempt groups that receive the most substantial contributions (emphasis added)” from Google.

So, which of its amici received “the most substantial contributions” from Google?

Brief of Center for Democracy and Technology, et al

According to Google’s transparency page, Google provides “substantial contributions” to all four of the organizations that submitted this brief, including the Institute for Intellectual Property & Social Justice, and the National Consumers League.[1] CDT, in particular, has a “special relationship” with Google; in addition to direct funding, there has been a revolving door between Google and CDT’s employees and “Advisory Council.”[2] Since 2008, CDT has been one of many “public interest” organizations that host “Google Policy Fellows,” undergraduate, graduate and law students paid by Google and deployed in external advocacy groups to work on policy issues important to the company.[3]

Brief of Computer & Communications Industry Association and Internet Association

According to its transparency page, Google provides “substantial contributions” to both the Computer & Communications Industry Association and Internet Association.[4]

Brief of Electronic Frontier Foundation

In 2011, Google gave Electronic Frontier Foundation (EFF) $1 million as part of the cy pres settlement related to privacy complaints about its Google Buzz app.[5] EFF continues to receive “substantial contributions” from Google,[6] and like CDT, EFF enjoys a “special relationship” with Google involving the EFF Board and Google-tied individuals — a revolving door with employees. EFF has also utilized Google-funded fellows as employees since 2008.[7]

Brief of The American Library Association, et al

The American Library Association receives “substantial contributions” from Google.[8]

Brief of R Street Institute, et al

All three groups that signed this brief, R Street Institute, Public Knowledge, and Niskanen Center, receive “substantial contributions” from Google.[9] The Niskanen Center disclosed on its website that it received $100,000 from Google in January 2020, the same month the brief was filed.[10]

Brief of Engine Advocacy

Engine Advocacy was created by Google employees working out of the company’s Mountain View, California, headquarters.[11] The group continues to receive “substantial contributions” from Google.[12]

Brief of American Antitrust Institute

According to Google’s transparency page, the American Antitrust Institute receives “substantial contributions” from Google.[13]

So, we have 7 briefs coming from 13 organizations that receive “substantial contributions” from Google.

That brings us to 17 amici remaining.

Brief of Small, Medium, and Open Source Technology Organizations

Google has financial relationships with many of the organizations that signed this brief. Google paid Mozilla an undisclosed sum—thought to be in the hundreds of millions—to make Google the default search engine in Mozilla’s Firefox browser.[14] Google Ventures was part of a $160 million funding round of Cloudera in 2014.[15] Google provides direct financial support to Creative Commons, the Software Freedom Conservancy, and the Wikimedia Foundation.[16] Open Source Initiative President Molly de Blanc works at the Gnome Foundation, which counts Google as a supporter.[17]

Brief of Python Software Foundation, et al

Both the Python Software Foundation and Tidelift, another signatory to this brief, list Google among their financial sponsors.[18]

Brief of Eighty-Three Computer Scientists

Ten of the amici who signed this brief—Doug Lea, John Ousterhout, Martin Odersky, Andries van Dam, Aviel D. Rubin, David Clark, Jan Vitek, Dan Wallach, David Patterson, Harold “Hal” Abelson—received direct financial support from Google in the form of academic research awards.[19] Another 19 are employed by Google or by organizations that have a financial relationship with Google.

Brief of Seventy-Two Intellectual Property Scholars

Five of the scholars who signed this brief—Anupam Chander, Jorge L. Contreras, Michael A. Carrier, Paul J. Heald, and Peter DiCola—acknowledge financial support from Google in their academic work.[20] Two other signatories, Pamela Samuelson and Jennifer M. Urban, work for academic institutes that have received hundreds of thousands of dollars in financial support from Google through cy pres settlements.[21]

Brief of Software Innovators, Startups, and Investors

Belying its name, this brief is submitted on behalf of two individuals, Esther Dyson and Tim O’Reilly and two entities, Azavea and Foundry Group.

In 2008, amicus Esther Dyson wrote, “I have a complex relationship with Google. I have fed at its trough many times.”[22]

Foundry Group co-founder Brad Feld invested in several companies acquired by Google, and Tim O’Reilly was an early investor in Blogger, which was sold to Google.[23]

Brief of Developers Alliance

Google is a member of the Developers Alliance, which charges dues to its corporate members.[24]

Brief of Professors Peter S. Menell, et al

Professor Menell is the co-founder of the Berkeley Center for Law & Technology, which received $700,000 in 2012 from Google as part of a cy pres settlement in a lawsuit over privacy complaints related to its Google Buzz app. Google is also a corporate benefactor of the Berkeley Center for Law & Technology.[25] Another author of this brief, Shyamkrishna Balganesh, is the co-director of the University of Pennsylvania Center for Technology Innovation & Competition, which receives funding from Google.[26]

Brief of Copyright Scholars

Importantly, these seventeen scholars “express no opinion” on whether the code at issue in this case is copyrightable and limit their input to fair use.

Three signatories to this brief, Patricia Aufderheide, Aram Sinnreich, and Madhavi Sunder, have co-authored papers with individuals who received direct financial support from Google.[27] A fourth signer, Peter Jaszi, is the founder of the Digital Future Coalition, which includes many Google beneficiaries among its members.[28]

And then there were 9 briefs without a known or public financial connection to Google.

Brief of Software and System Developers and Engineers for United States Government Agencies

When the Supreme Court of the United States seeks the views of the Solicitor General with a Call for the Views of the Solicitor General (CVSG), it kicks off an extensive interagency process within the United States Government (USG). Agencies conduct meetings with parties and ultimately make recommendations to the Solicitor General, which are then consolidated and presented as a brief to the Court.

In this matter, twice the Supreme Court issued a CVSG and twice the USG conducted an extensive process and twice, once in 2015 (Obama Administration) and again in 2019 (Trump Administration) the Solicitor General sided with Oracle. This process included all government agencies, but particularly the Copyright Office, the Patent and Trademark Office, the United States Trade Representative, the Federal Trade Commission, the Department of Justice, as well as all government agencies that procure technology. In each case, the views of each of these Departments and Agencies were not controversial and in favor of Oracle.

This brief’s title is highly misleading because it is filed by former representatives of a single government entity, the United States Digital Service (USDS). There is not a single Agency Chief Information Officer or Chief Technology Officer on the brief. And, most importantly, the United States Digital Service is run by long-time Google executive, Matt Cutts, who left Google in 2017.

This group of temporary government employees clearly not representing the U.S. Government makes the remarkable statement that affirming Oracle’s view would “create calamity.”

Brief of the Software Freedom Law Center

Oracle too has supported the Software Freedom Law Center for legal work supporting open source and while we have respect for the work they do, we cannot imagine a scenario where Google is not providing funding.

With eight briefs left we have four briefs representing a total of seven people, and while we fully respect their views, they are essentially seven interested individuals.

Brief of Civ Pro, IP & Legal History Professors

It is title titled “Civ Pro, IP and History professors” because there are only three (3) of them on the brief and only one focused on IP. Another of the professors recently wrote a paper on “How Duncan Kennedy Caught the Hierarchy Zeitgeist but Missed the Point.”

Brief Empirical Legal Researchers

This brief purports to represent two (2) empirical legal researchers.

Brief amici curiae of Michael Risch

Mr. Risch writes on behalf of himself.

Brief amici curiae of Professor Glynn Lunney

Professor Lunney writes on behalf of himself.

We saved the best for last.

Brief amici curiae of Rimini Street, Inc.

The Rimini brief is particularly stunning in that nowhere in the statement of interest of the amici does Rimini bother to mention that it has been repeatedly found in violation of Oracle’s copyrights by court after court.

Rimini engaged in a massive theft of Oracle’s IP and tried to cover it up by destroying evidence and engaging in other litigation misconduct to cover up their illegal acts. The Federal District Court made this clear: “Rimini’s business model was built entirely on its infringement of Oracle’s copyrighted software and its improper access and downloading of data from Oracle’s website and computer systems.” Despite efforts by their executives to obfuscate their conduct, Rimini’s illegal activities were repeatedly identified by both judge and jury and are the subject of an ongoing federal criminal investigation. Courts have identified Rimini as a dishonest, serial infringer and have ordered a permanent injuction against Rimini to cease its unlawful conduct, and to pay Oracle nearly $100 million in damages.

We are not sure Rimini is exactly the character witness Google wants on its side.

So, out of 26 briefs, we are left with 2 which purport to represent a meaningful category of interests without any apparent financial or business connection to Google:

Brief amici curiae of the Retail Litigation Center

Brief amici curia of the Auto Care Association and Static Control Components, Inc.

So we are not accused of throwing stones ourselves, Oracle was incredibly appreciative from the show of support we received from 32 amicus briefs filed on our behalf. As we openly and transparently disclose, Oracle tries to support organizations that share our views. As a result, 6 of the amici who filed on our behalf have received some financial support from Oracle. However, under no circumstances would we consider that support “substantial” or material, and in no circumstance do we exercise any financial or decision-making control over any of the amici who filed on this matter. And finally, in no circumstance did we request the submitting entity file a brief on our behalf.