Skip to main content

tv   Hudson Institute Discussion on Google v. Oracle  CSPAN  February 18, 2020 11:03am-12:13pm EST

11:03 am
c-span2. tonight starting at 8:00 pm journalists recall coverage of the 1972 presidential campaign documented in timothy crouse's book the boys on the bus. world magazine editor examines journalism followed by jerome hudson's book on the media title 50 things they don't want you to know. enjoy booktv this weekend every weekend on c-span2. >> a look at copyright laws for computer software, the discussion comes ahead of a supreme court decision in the case of google versus oracle, whether they can copy a programming language and whether google infringed on that copyright. >> thank you all for coming to
11:04 am
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 data-driven research that explores and investigates the
11:05 am
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 fact-based research and data-driven 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. i'm 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.
11:06 am
if you wish to discover mister wilson's 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
11:07 am
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 couldn't see with the human eye or people couldn't 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
11:08 am
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
11:09 am
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, second-generation system, third-generation systems, apis are referred to as the fourth generation system where we are
11:10 am
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
11:11 am
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.
11:12 am
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 didn't 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
11:13 am
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 don't 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 didn't know that it wasn't complete or
11:14 am
wasn't 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 didn't want to do that so they
11:15 am
didn't want to give away the version like they create using java so talks broke down and everybody knew what that meant that they weren't 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
11:16 am
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 weren't 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
11:17 am
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
11:18 am
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 oracle's copyrighted code. you can say that doesn't 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
11:19 am
users because i think one of the things that many folks miss is google wasn't 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
11:20 am
necessarily the job, the job of programmers. that is an interesting spin on what google's 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 wouldn't have had the same and immediate access to fans that he had. >> at the time, java was one of
11:21 am
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.
11:22 am
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
11:23 am
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
11:24 am
arguing that the fair use was not an appropriate decision for the jury and they again reversed and said google's 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? >> i'm not aware. >> this will be the first time the supreme court has ruled on
11:25 am
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 didn't get one. >> commercial benefit, create a
11:26 am
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 haven't decided to incorporate this permanently into my teaching material that just came out recently and might take a paragraph. i'm 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
11:27 am
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 isn't 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.
11:28 am
also google argued that one of the markets they didn't 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
11:29 am
thinks that the fair use argument kind of is fair, let's 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 we've 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
11:30 am
set up in this case that says there is some distinction between the type of code they call inter-basis, 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 didn't 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 doesn't 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
11:31 am
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
11:32 am
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 high-tech industry in silicon valley, incredible new devices and products and
11:33 am
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 wouldn't 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 capital and that requires in a proprietary business model we have chosen to be in, it requires us to charge for the value of software. >> following up on that real quickly, this is an important point. there tends to be a narrative that it is a flappy bird.
11:34 am
it takes a couple hours and you can make millions. how easy is it to develop 11,000 lines of code used as the interface program for lots of developers and programs? >> let's look at java for a second and let's put ourselves back in the early 1990s. do you remember microsoft windows 95 coming out? this is the timeframe we are talking about, they were starting from scratch and how do you create software programming language and infrastructure and system from scratch? what you do is you come up with
11:35 am
the first function this that you are thinking about this is what the system needs to do, it might be print, figure out how to get data into the system, it might be how do we process data, how do we print it at the end. how do we create files at the end, things that are the crux of how a computer operates. you have to figure out the language you are going to use to convey that to the user so they can develop in their programming language and you have to come up with those ideas and you have thousands, millions of things you can consider as alternatives in that. it is a painstaking process in the system and when you say now
11:36 am
we are not just one person writing the code but we will be a team of ten and how do we put this to get a, how do we make this a cohesive whole and how the users are and how the users are going to perceive it and it is a creative process that is extremely difficult to do and when you say okay, i'm not only going to do that today, i am not going to start with this core but i need to make it extensible. i have to think about going into the future and creating a system that over decades, two or three or four decades that we make these selections and choices that make users want to
11:37 am
use our system. in java became very popular meaning it was a really great interface. the programming language, the structures they created. all these interrelationships, thousands of different choices these developers could make over the years. and one that lends itself, copyright protection for the authors of the work and whether or not you have an offer that took down and write a novel or whether you have 10,000 authors that work for the same organization the create this programming structure it is not only a lot of work but a lot of creativity that goes into it. it is not the same creativity
11:38 am
you see a novelist have but there are so many similarities that it is remarkable how consistent it is with the way that novelist works. >> you don't have this sharp divide between the innovation industry, engineers and scientists and creators and artists. we understand this implicitly in our language, talking about the elegant solution that innovation created creativity involved and they go hand-in-hand. >> why is it the way an android phone looks, think about kind of famously steve jobs saying when he came out with the iphone i don't want any buttons on it. >> that is really difficult.
11:39 am
if we are talking about a different company that came up with the smart phone i cringe to think about what our smart phones would look like. >> first it would be beige. >> dell is fabulous and we love dell. it certainly would be beige but not talking about dell you think of the engineering companies out there, there would be antennas involved in our smart phones that would be visible that would catch on our pockets and things like that. >> it is the same thing when you are trying to create a ligand code, code that people
11:40 am
remember, code that makes sense to solve the problem they are trying to solve but that doesn't mean there is only one way to do it. there are a variety of ways to make those choices and that is in and of itself what is creative. >> not just creativity but thousands, tens of thousands of work hours. >> what you're describing is occurring before beta testing and asking what they think for their intended purposes. >> there is an integrative creative process, the iphone didn't always didn't look like whatever this is. there were in a rate of processes and a device that seems like it is pretty stable now but is always going to change and so you think of the software interface as the same
11:41 am
thing, the sas interface involves and gets more productive and efficient and all of those things are creative choices that we make. >> correct me if i am wrong, oracle created this, you invested this time and effort, what intellectual property does to create product and get them in the market and if so successful you lose your it production, it shouldn't be copyrightable or you should have fair using copy. >> i don't think i can add anything to that. >> the whole point of intellectual property to bring successful products and services to market in the creative industry and other industries.
11:42 am
>> we have to be very concerned about not only what this case does to copyright law but all of these regimes companies have operated under for four or five decades relating to how we license software to users can be disturbed so it is contract law, it is impacted by the decision as well. >> what can they? >> what can they prohibit? that is a really interesting question that ought to be
11:43 am
something the supreme court looks at with jaded view here that we are really disturbing something that has been stable and not only the proprietary model but if you look at the open source model how do they distribute their code, they are distributed under a software license agreement. if there is no copyright, how do you enforce the provisions of your software license agreement? how do you keep people from wholesale copying your work and going forward with their own? and the answer is you can't. >> let's take a moment to open it up to the audience for questions. there will be a microphone available. first in the back.
11:44 am
>> my name is roger and i have a couple questions. you have done an effective job presenting your position but two things i hope you go back on. first, what happened to the patent infringement issue which was dismissed early on and never resurrected? secondly, if the case is as clear-cut as you are describing, how could the jury have found twice that this was fair use? it almost sounds like you are saying i stole the book and once i got it i talked the jury into saying i could do whatever i want because of fair use? what i'm really asking is what are the arguments on the other side that would persuade two juries to say this is not infringement, this is fair use even though assuming you said everything accurately it was
11:45 am
indisputably copyrighted? fair use, there's a long history of fair use. how does this fit into fair use is the real question? lastly, how are other technology companies coming down on this issue and why are they taking the positions they are taking? >> i apologize, great questions, i want to leave time for questions for everyone. feel free to answer the ones you understand. >> the patents were dismissed. i don't know why they were, out of the case. they are completely separate from the copyright claims and these are independent claims on fair use. the jury, actually, the first time, deadlocked on fair use. it wasn't a decision by the jury. the second time, they did find fair use.
11:46 am
i think that was generally because they did not get all of the evidence that was excluded in the case presented to them. i think the federal circuit was right that the commercial use, the commercial nature of the use and the replacement, not kind of, they call it interoperability, google calls interoperability but it is really the replacement, from a legal position that cuts so far against fair use decision that it probably wasn't the right decision by the jury. but i don't want to get into disturbing jury verdicts. >> it was mentioned, the jury agreed there was fair use.
11:47 am
very successful narrative has been created. what oracle is trying to copyright is functionality of interface which is long-standing copyright doctrine, you cannot do that. asked him explains, the 11,000 lines of code are at issue. you mentioned the book, fair use, reminded me of the google books litigation where fair use prevailed in that case. the parallel fear between this case and google books. >> i think it is similar. if you had told me back before the google books case that it would have been okay to go through the public library and get a bunch of books and scan
11:48 am
them in and do what google has done i wouldn't have thought that would be a close question of fair use. it was a twisted decision at the end that ended up there. the philosophy i think is the same behind it which is we are just going to do it. that is a business decision that has been made. that is the job and the role of the court, to say when those business decisions are made and it is kind of anti-the current copyright regime that we have is for the courts to correct those problems. >> in the front here.
11:49 am
i just want to ensure your proposition ends with the question. >> you mentioned there are three licenses and one of them was proprietary so they could have paid to have their proprietary system. the decision not to do that was a business decision. how expensive would that have been? it seems crazy because google has the money. >> thank you for that. i have no idea what the economics of that war was at the time but i imagine it was an expensive license. >> in the google books litigation, publisher and author saying it would have come to us, the we were happy to have people read more of our
11:50 am
work with proper licensing practices and google made the decision, no, we will copy the works and impose upon you the cost to make sure you are right. it is a process that was recently identified in the spaces where a company makes a business decision that is cheaper and easier to infringe and impose upon the ip owner the cost and difficulties of suing them to obtain remuneration. in the far back. >> software had been patentable, copyrightable. how would that have changed the competitive industry. what it have been better.
11:51 am
>> it is patentable and copyrightable and the way that i at least, the patent protects the inventions and the copyright protects the creative expression with the authors when they create the code and when they created the sequence and organization of their code so really the regime that we have now is both patent and copyright, not just software with multiple ways of protecting some piece of intellectual property but it is interesting again but given these different protection
11:52 am
schemes we have the most robust software industry in the world so something is working and we should be careful before we disturb it. >> two things come to mind with samsung and apple, that went on for years and only the lawyers benefited and the guy committed suicide. was his name schwartz or something like that and they reversed the decision on articles and science journals. that was very vague. this with a more precise argument and you had the correct sense of this was as a contracting officer i don't with sas, one of the software maintenance up front, everyone else stayed in the rears.
11:53 am
>> thank you for being a customer. sas is a great company that has done a lot, the uses customers make of software is phenomenal, we love our customers but i think in order to become kind of one of the companies that is on the cutting edge, this is what we need. we need and ability to determine what our business model is. it is for us to determine that i think. once we figure out the legal framework, how the legal framework we are left with allows us to make decisions and choices, what we see in this case is an organization that is
11:54 am
not a big tech company. google is not really a tech company, they are in advertising company. they give away their tech, their software that they develop, they give that away for free except for their search engine that they completely control and locked out. their valuable stuff they keep but they make their money on advertising. there are a bunch of other companies, the gentleman asked about other tech companies like microsoft and amazon supporting. i don't know if amazon has come out and supported google's position but microsoft and ibm and red hat supported google's position. they don't make their money on
11:55 am
tech either. you see how they are making their money charging for computer cycles in the big cloud services facilities. speaking of microsoft they make their money not distributing their software anymore. it is all in the cloud and they are causing -- all paying microsoft $99 a year for access to their sweet of software. that is very different model, charging for the access of the software and they are compensated based on cycles so software has become the content for these cloud service providers and if they find
11:56 am
content for free, for reduced price, wouldn't netflix like to have disney for free. >> thank you so much. in regards, this is on the side of oracle. how will the tech fields change? if it goes inside of google for example, all these large corporations use it for free but the inverse side, stringent copyright preventing these corporations from copyrighting all their lines and limiting things altogether. since we are going into the metaphysical and technology in the future how will that prevent upcoming actors are young entrepreneurs from pursuing this?
11:57 am
>> that is a great question. i think what we are really doing on oracle's side of this equation is preserving the status quo, what we have always seen in industry, but we haven't seen any lack of innovation in the software industry as a result of the current kind of intellectual property rubric that we having software. so the change is really on the side of google. if you really want to disrupt an industry, any type of software that is not copyrightable, that would be a change that would really disrupt not only big businesses but it is hard to see what the
11:58 am
industry looks like after that kind of change but i would expect that we would see the big companies get bigger. >> to reemphasize the point, we have had robust copyright protection and patent protection. what this has facilitated is all the myriad business model and approaches to distribution of products and services that we have is why our innovation economy is so strong and vibrant, not because it serves as a lockdown but property is property and what is property but a platform in which people make choices about how they structure their businesses and enterprises creating disregard gated value chains or creating
11:59 am
open-source business models the way that red hat and ibm have. it is officially on record saying patents are fundamentally important for open spaces because of their forced disclosure. so you are forced to disclose your code and the way your software functions. intellectual property, locked out is the way you were characterizing it. that is very common way that we experience it socially for infringement lawsuit. and the permit of commerce and many other studies have chosen exchanging hands between businessperson and innovators, startups obtaining venture capital funding and google hasn't talked about much that they patent their original patent, the original version of their search operator in 1988, they used that to obtain
12:00 pm
venture capital financing. what is the first question asked of the presenter by the venture capitalist? do you have a patent on it? when they say no, on national television you give away your entire idea, why should we invest? .. secret, which is really interesting, because how could you create an interface that is supposed to be used by people who don't work for your company, your customers, your developers and folks, and protect it by trade secret?
12:01 pm
>> i'm astonished. >> which by the way google has bit silly changes to search algorithms. that said they protect their search algorithms right now. they protect it very vehemently, i key to a lot of the income and advertising company. is there another question over here? [inaudible] >> it's not working. speak very loudly because it is being recorded. [inaudible] >> so -- >> repeat the question. >> so the question was, if
12:02 pm
google had copied the 11,000 lines of code before it was bought by oracle, with there have been a case? the answer is yes. i think that's actually factually the way that this happened was the transition to oracle happened after the copying occurred, so yes. >> anyone else? to circle back to the topic in your amicus brief about how google is creating this artificial -- between api and software that is subject to the copyright act. we haven't seen this court decided a copyright case but we
12:03 pm
had seen its site cases involving new types of technologies. a lot of those cases, the decision does rest on those different types of technologies. do you think that, i do know it's hard to revisit the scenarios but do you think a lot of it at the end of the day will come down to whether or not the judge at the end or writing their pens just think of api as plato software and will apply interpretation to that, how instrumental do you think that distinction will be? >> i think that's the fundamental question in the case. it's is there this artificial distinction between api software and other software? again, going back to there are versions of types of software
12:04 pm
systems, third-generation programs, fourth-generation programs and on and on and on. they all build on each other, and to say a certain class of software, , a certain part of tt software is unpredictable and other parts are when congress has so clearly said software is protectable. it seems to me like that would be a very difficult kind of distinction to draw. i think in this case if you look at the creativity that goes into creating those user interfaces, in many cases it's more creative than the code that we are saying is the stuff that everybody agrees is copyrightable. in fact, the kind of macs, if
12:05 pm
you go and look at the actual briefing, you will see google relates to this kind of max example where it gives us the maximum value between two values. that's what you were going to return, and this is one of the functions that they say, well, the math part of that, right, which is compared to numbers in return to larger is not that creative, right? the structure, the sequence in organization and structure of the what we call the declaring code, the api part, is very sophisticated. and we all agree, yet we all agree that the code that is not as sophisticated and probably far few choices exist for is copyrightable, including google.
12:06 pm
to me it's really a pretty simple decision here that congress didn't make distinctions between these two different types of code. this is merely hindsight, good lawyering, or at least the best lowering that we can do to basically paper over the business decision that was obviously made here to violate software license agreements. >> wait for the mic. >> i'm not a technologist but i wonder what other practical business implications for google if they were to lose this case and turns electric current usability current usability of the products and what happens to the status quo changes? >> sure. the ultimate outcome of the case
12:07 pm
would be, i suppose, damages. i don't know whether -- and imagine there's a possibility of an injunction in the case of intellectual property. of course that would be kind of yet another element of decision that would have to be done by the courts and the courts of appeals and things like that. but what i would expect to see is that google would relent and pay oracle a licensee. >> right. even if there is an injunction issue, the function of the injunction especially between two corporate actors is then have license agreement reached between them, which is what happens in 99% of the time. injunction is not the end of the story. 99% of the time it's the beginning of the process which it had begun ten years ago when the one says okay let's now have a business discussion, now let's
12:08 pm
create the license agreement. i expect there will be damages for the past ten years or so,, infringement, but they will enter into a license going forward. which is very common and typical. >> the other thing that might happen, and i'm kind of remembering but you can quote me on this, that google has already fixed the problem. going forward might not be issued. in fact, they protest that can't be done well. there are examples of kind of these apis being rewritten and spring is one of the things that oracle itself created an alternative api to the java, the code in all specifically in this case. i think that there are certainly ways that google could and may
12:09 pm
have already adjusted its business going forward. >> i would like to follow up a question asked earlier about the court making distinctions. we talked about how if the court ruled in favor of google it would unsettle established legal and commercial practices. also kind of what you think going forward just as a legal matter the court starts making these types of distinctions under the copyright act as to what counts is copyrightable and doesn't that you don't see in the statute? what does this do in terms of the legal stability of the law? we see lots of cases where people are trying to say this time this is different. >> i think that's the likely state of affairs going forward is that we will see things that we think are easily copyrightable come into question because i don't know if you have seen, that the clock in
12:10 pm
alexandria right near the patent office and the clock is a work of art but it's also functional. is that functional? and so is that copyrightable? or is it a work of art and is at copyrightable? so software code is both functional and it's also a work of art. that's the thing that a think we should leave folks with. >> so well, thank you all for coming to this. thank you very much. [applause] not just because we had the benefit of hearing from him about the nature of this case which is really happening but also for those who may not know if the anniversary of the patent issued in 1992 irwin jacobs and his colleagues on his invention of the cdma technology. that is the 2g, 3g, 4g, soon-to-be 5g digital transmission technology that
12:11 pm
makes all of our smart phones and smart. he is also one of the founders of qualcomm. so today is an auspicious date of innovation, innovation history. but thank you again to tim, and thank you. thank you to the audience for the great questions. appreciate it. [applause] [inaudible conversations] [inaudible conversations]
12:12 pm
[inaudible conversations] [inaudible conversations] [inaudible conversations] >> today senator bernie sanders speaks to supporters at a get out the early vote rally on the university of nevada campus in las vegas. early voting for the nevada
12:13 pm
caucus inns today with the caucus on saturday, february 22. watch live at 5:30 p.m. eastern on c-span2, online or listen live on the free c-span radio app. >> during this election season the candidates beyond the talking points are only revealed over time but since you can't be everywhere, there is c-span. our campaign 2020 programming differs from all other political coverage for one simple reason. it's c-span. we brought you are unfiltered view of government everyday since 1979, this you will bring you an unfiltered view of the people seeking to steer that government this november. in other words, your future. so this election season go deep, direct and unfiltered. see the biggest picture for yourself and make up your own mind. with c-span


info Stream Only

Uploaded by TV Archive on