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tv   Hudson Institute Discussion on Google v. Oracle  CSPAN  February 25, 2020 8:49am-10:01am EST

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>> the south carolina primary is saturday. join us to the candidates reaction for the results. live coverage saturday evening on on c-span, , on demand at c-span.org or listen live on the free c-span radio app. >> next, discussion on the
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possible copyright implications for software development ahead of the supreme court case google versus oracle. that's an institute hosted this event looking at the history of copyright protections and the importance of code being protected by copyright laws. it's an hour ten minutes. >> all right. i believe we will now begin. thank you all for coming to our event today on google versus oracle case. officially titled consequences of the case here i actually have my own subtitle, which is copyright in the future of the software industry. very significant case and absolutely delighted to have adam mossoff here to speak to us today about the relevant legal policy in commercial issues that
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are raised by this case. my name is adam mossoff and i am a senior fellow at the hudson institute and also now the chair of the newly constituted forum for intellectual property at the hudson institute. this is, in fact, our inaugural event and so we're delighted to have it on such an important issue and with such a great speaker. the forum will be hosting events sponsored and promoting data-driven fact-based research that explores and investigates the importance and key will the intellectual property place and not just driving the u.s. innovation economy for the past 230 years, but all innovation economy the world creating the foundation for flourishing societies. we hope very much to play an active role in ensuring that fact-based research and data-driven studies are in the hands of our policymakers as they consider the very important issues such as decisions that have to be made in important
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cases at the supreme court and legislation that has to be considered before congress and regulations that would be adopted by our agencies. so as i mention i'm very delighted and happy to our speaker here today, , tim wilso, director of patterns at the sas institute. would like to emphasize that we are both speaking in her individual capacity only and not on behalf of our respective institutions. normally i do not give large or long introduction of people. if you wish to discover all of his incredible accolades and achievements over his multi-decade career, embrace our mobile revolution, choose the browser of your choice, the search engine of your choice, whether being or google and you can find all that you wish about tim wilson. but thank you for being here today. >> my pleasure, thank you.
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>> i wanted to kick off our discussion before we start talk about the google versus oracle case. many people may not have heard the sas institute may be wondering what is this organization and why are you talking about this case from the perspective of your work at the sas institute? can you tell us about your company? >> sure. we are a large privately held software company in north carolina which is about an hour flight south of here, and we have been in the software business since before the really was a software business back in 1976. we were founded but actually have our roots going back into the '60s. the problem that sas was trying to solve was to determine patterns in data that you couldn't see with the human eye,
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or people couldn't perceive statistics, analytics, artificial intelligence, all of those things that are things that sas is kind of best at developing. and so we have about 14,000 employees around the world now. we are, like i said, a large software company. we call it a proprietary software company, so that is a company that we actually make money directly from our software and our customers are happy to participate with us, and it helps us develop our software going forward. also kind of interestingly, you know, apropos about this case is that we have an api, what's knn as an api today, that is the
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main way that our software is interacted with, by our users. and so they create programs, and that tells the computer kind of what to do. and it's very useful to have those apis be easy to understand and used by our users. and that has really been one of the major reasons that sas has been very successful at becoming, you know, a big software company and one of the reasons why this case is very important. >> and the case centers around api. for the non-tech geeks in the audience who may be watching this finalized in, api stands for -- >> application programming interface. so what it actually means, i think, in a in a technical sen,
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it kind of is a shorthand way to refer and access big blocks of computer code. any of the kind of programmers in the audience might know the various generations of software, you know, has been kind of first generation system, second generation system, third-generation system. api are kind of, you know, referred to as the fourth generation system where were not actually directly programming, you know, in a programming language like c but we're programming the system in big blocks of code. it's really an important and modern way to interact with the code. >> all right. i'm sure we'll dig into more of these details in your remarks.
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we will have a moderate back and forth between us to lay the foundation of what the case is about and policy issues, and then we'll open it up to questions from the audience in about 20 or 30 minutes. march 24 the supreme court will be hearing oral arguments in what is now styled google v. oracle. it began actually as oracle versus google back in 2011, when oracle first sued google for copyright infringement. the case is really centered around the rise of this device i help up. i used refer to this as my infringing device when i would talk at conferences, the samsung android device and now refer to it as my infringing device because oracle versus google case as well so it's multiple levels of infringement. can you give us relevant background here to the case and why i'm making these references with my smartphone? >> sure. back in the 1990s java was
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created by sun microsystems as a new, very popular software development, you know, programming system. son was later sold to oracle, and so that's how we got kind of this case styled as oracle being the main factor here. so the main strength of java, i think, is that you could write your code once and run it anywhere. and that was the main thing that java gave to us that we didn't have before in the marketplace. and it was really a useful feature. and at the same time what was happening, or at least a little later, we saw the rise of the smart phones, right? we saw the iphone come out in
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2007, i believe. and that really was for a company like google, something that they dominated obviously, the search on the pc platform and kind of the computer. but we had this new platform out there that the folks who were kind of really thinking about this issue said, well, this changes everything. and that was the smart phone. and so, you know, what we saw was this platform that java had created, or that sun had created that allows you to run on any platform. well, of course, that included smart phones and in smartphones than their own version of java. i think it was called java se and so that was a popular way to create apps on these smart
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phones. and so, you know, i guess around that time, google acquired a company called android, and many people don't remember that android wasn't actually google in the beginning, right? and so that was something that i think google thought, well, this is the way we're going to go into the smart phone business. .. as potentially another alternative to get into the smartphone business and i think, you know, kind of the evidence the case has shown
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that, you know, that the talk kind of broke down with sun over the fact that sun made their-- made their job a platform open and available for free to use, but you had to agree to kind of the open source model, which is if you use the code, you're going to have to then, you know, dedicate your code or also follow the open model, and google didn't want to do that. and so they didn't want to kind of give away their version of what they create using java. so talks broke down and, you know, everybody knew what that meant, right? was that they weren't going to use java except that's not what actually google did. they made the decision that it would be more expo dishes to
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copy some of what was in java and to, instead of designing their own, they just decided that they were going to take it. so that's kind of, you know, the background of the dispute. >> so they were actually in talks so that java was made available to companies and to developers? >> i think there were three different types of licenses that you could take from java, from sun. one of them was the open model, another was, you know, a fully proprietary model and you had to pay for that so i think, you know, there were business decisions that were being made on both sides, obviously, but you know, it was-- it was google that, you know, kind of made the business decision that they weren't going to license java under the
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model that was offered. >> and were there alternatives? could google have come up with some alternative if it wanted to? >> well, you know, that's kind of one of the cruxes of this case, right, was, well, you know, if google wanted to do this, could they have done it? and one of the arguments that google has, you know, kind of proffered is that, you know, it w was-- it was impossible or nearly so i am -- impossible for them to, once they have adopted, you know, the fact this they're going to use java to come up with their own version and that, i think is demonstrably false. >> in fact, yes, it came out in t the-- through discovery, but there was a very famous and important
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statement internally from a google engineer, tim windholm who said quote, what we've actually been asked to do, referring to larry page and sergei brent, founders and president and ceo of google at that time, what for android and chrome. we've been over these and we think they all suck and we think we need to jafva as we need. and licensing broke down and they took the code. how much code did they copy, did google copy? >> so it's undisputed by google that what they copied were 11,500 lines of oracle's copyrighted code. it's interesting, you know, you can say well, you know, that's-- that doesn't seem like much in
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the context of maybe millions of line of code that you might have in a smartphone, but you know, the issue is, it's not just the lines of code, it's how they're organized, it's all of the creative processes that go into coming up with a system of, you know, of code that actually works for the users, right? because, you know, i think one of the things that many folks misses is google wasn't just copying the code to get the code. what they were copying the code for was to get the programmers because if you learned how to work with the java programming language and you were a good developer and now all of a sudden you are, you know, kind
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of faced with a new programming language that you have to relearn, that is, you know, kind of a transaction cost that you have to decide, well, do i want to learn how to program in this android operating system that's different than the java that i actually have spent a lot of my time learning and figuring out? and so what google wanted to acquire was not necessarily the java code, but it was the java programmers and so that's kind of an interesting, you know, spin on what really google's intent was here. >> like copying a book because there's an established fan base for that book. >> yeah, it's like the copy-- we talked about this before, the copy of the white album,
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right? we didn't copy the white album to get the white album music. what we did was, we wanted the fan base. >> earlier we were talking about remixing the white album. the reason you picked the white album, it was the white album. you could have picked a garage band, but you wouldn't have the fame and immediate access to fans that you had by remixing the white album. >> at the time java was one of the most, you know, kind of popular programming languages in the world and so this was, you know, this was a choice that they made that was, you know -- was something that brought that group of programmers to the platform because remember what google was really competing with, i think, as a business, at least in their minds, was that the iphone was out there.
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and the app store and the iphone was out there, and we needed to create an app for for android and so that means that we had, you know, we have to create a platform that developers are going to be attracted to. >> i speaking personally, i actually had the very first motor rolla phone, the one with at mechanical slideout keyboard and they licensed android "star wars" from lucas films and i didn't realize i was carrying an infringing device in my pocket at that time. and so, it was oracle v google because oracle sued google for copyright infringement. so quickly what happened through the past 11 years of litigation, and it's google the oracle, and google is appealing to the u.s. supreme court. >> sure, so oracle sued google
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in 2010 based on patent and copyright infringement. the patents were out of the case pretty quickly and it went to a jury trial and the jury actually decided that, you know, that google infringed the copyrights. they split on the issue of fair use and so that decision was first appealed to the federal circuit court of appeals here in washington because of the fact that there were patents in the case. this is with are that decision went. the cafc said that the declaring code and this is kind of out of the case, the declaring code and the structure of defense and organization of the api packages are entitled to copyright protection and therefore, they reversed the district court and sent it back
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for a new trial on fair use. so then they went back, back to the district court and decided fair use. now, that of course went to the jury and the jury this time found that it was excused by fair use, right? so now we get a second appeal to the court of appeals for the second circuit and this time ar oracle was arguing that fair use was not an appropriate decision for the jury and casc again reversed and said that google's use of java api packages was not fair as a matter of law, right? and so they decided as a matter of law that the use was not fair, it was a commercial use. it was a competing use. it was not a fair use.
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>> and so now google has appealed to the supreme court and this is a significant case, right, because the two questions the supreme court granted review on is the copy rightability of api. >> and whether this copying of the api if it's copyrighted is fair use. when was the last time the supreme court heard a case on the copy right ability of a software program? >> i'm not aware. >> this will be the very first time the supreme court has ruled on the copyright ability of the software programs. the congress in 1980 amended it and said that code is copy rightable and this is the first time that the supreme court decides the bounds and it's been a long time since we've had a fair use ruling, probably since the '90s, i think with--
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>> copy right has been a really static kind of body of law. i think everybody and including, you know, if you look at some of the evident in the case, you know, from the district court, you know that google knew what they were doing, right? they knew that they needed a license for their use of java and that they intentionally didn't get one. >> yeah. >> so again, commercial benefit, right, for a competing product and would seem at least on its face not on the scope of what typically fair use and copying a small section of the article of use, for use in teaching a clans-- class, for instance, if i teach something that i think is relevant and haven't incorporated this permanently and it came out recently and might take a paragraph and put it in there. i'm not competing with it, but if i continue to use it i would
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have to get a license. all right, so anything remarkable that happened in the trial that the audience should be made aware of, understanding the facts and foundations of what's happening in the supreme court? >> yeah, there was actually lots of important evidence, i think, that was excluded by the judge in the trial. you know, the-- you know, kind of the big things were that they excluded evidence that android superce supercedes java in the market they occupied before so this kind of goes to the argument that google has made for interoperability and kind of goes to the point that this is not really interoperable. you think of something being interoperable as working together. that was not really the intent of google in this case and so,
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you know, there was a lot of evidence that, you know, that they were actually, what google intended to do was kind of be a complete replacement and in fact, that's what's been born out in the market is that we now have android and google se is no longer out there for smart phones. so it's one of those things that i think probably was an important thing that was excluded. also, you know, google argued that, you know, one of the markets that they didn't compete with, with java on were for, you know, this was just about smart phones, but they fully well knew that their next rollout was going to be to pc's and computers and so at the time-- i think it was the day after
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discovery closed that google made the announcement that they were going to make this all, android available as an operating system for computers and so that evidence never kind of -- never kind of met, you know, kind of the review by the jury and so i think there are a lot of things that, you know, even if the supreme court thinks that the fair use argument, you know, kind of is fair, let's put it that way, that we ought to be looking at the decisions that were made by the district court on exclusions of evidence that ought to go back and we ought to be, you know, 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
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seen in the case. >> so the institute-- the sas institute -- for the case? >> yeah, so we have put together an amicus brief and are getting prepared to file it in the next few days and, you know, obviously one of the things that we talk about is, you know, really this false dichotomy that google has set up in this case that says that there's some distinction, right, between the type of code that they call interfaces, these api's, that there's some, you know, kind of magical distinction between software interfaces and software in general, which we all, including google, agree is copy rightable.
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congress didn't write the statute that way. what congress said was software is copyrightable, full stop. code is code. you know, but it's all, you know, kind of somewhat functional because it operates a machine at the end of the day. you know, but it doesn't mean that it's not creative just because it operates on a machine. all software operates on a machine. there's no, you know, kind of logical position where you can say that one type of code ought to be treated an as not copy rightable and another type of code ought to be treated as copyrightable and do we really want, for as much respect i have for the judiciary, do we want them making fine distinctions, there are generations of different types of software that are out there, you know, that kind of build on
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one another that even under the current rubric that all of this is protected by copy right, you know, we still see massive advances and so all of tease kind of disguise following positions that we see from the folks that generally are open source folks, which is philosophically a different way to look at the world with respect to copy rightability. we've had a real good robust software industry here in the united states. it's much more robust than many other places around the world. in fact, all other places around the world. and we've done it under the copyright regime that we currently have. what google is looking to do here is to disturbing all of those years and all of that experience that we have, you
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know, created this really robust software industry. >> i mean, the u.s. took the lead throughout the entire world in first extending not just copyright protections, but patent protections as well to computer software programs in the 1980's and '90s and we are living the results of this now with incredibly strong, high-tech industry and silicon valley and incredible new devices and products and services brought to us. you know, we all can share our cat videos instantaneously by pocket computers that we call a phone. and my children will never know a phone used to be something you could just talk to someone in. >> and also we're making medical advances using our software that we wouldn't be able to detect cancer the way that we're detecting cancer using artificial intelligence that sas has created.
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and so all of these investments that we make in, you know, making sure that our software product is at the cutting edge, you know, requires capital and that requires, you know, in a proprietary business model that we have chosen to be in. it requires us to charge for the value of our software. you know. >> let me follow up on that quickly. this is, i think, a really important point that people, there tend to be a narrative that it's easy to code. oh, flappy bird, anyone can make that in a couple of hours and you can make millions. how easy is it to first right and then develop 11,000 lines of code that's used for interface for lots and lots of developers and programs? >> well, for that, let's look at java for a second and, you know, let's put ourselves back,
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back in the early 1990's, right? >> ancient times. >> do you remember microsoft windows '95 coming out and being that, you know, kind of really -- this is the time frame that we're talking about here and you know, the folks at sun were starting scratch. so how do you create a software programming language and infrastructure and system from scratch? you know, well, what you do is you write kind of-- you come up with the first functions that you're thinking about, well, this is what the system needs to do, right? it might be print, it might be, you know, figure out how to get data into the system, it might be how do we process data and you know, how do we print it at the end, right? or how do you we create files at the end, things that kind of are the crux of the, you know, how a computer operates.
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well, you have to figure out the language that you're going to use to convey that to the user so that they can develop in your programming language and so you have to, you know, kind of come up with those ideas and you have thousands and millions of different, you know, just things that you can consider as alternatives in that and it's a very painstaking and kind of creative process. even with the simplest part of that system. and then when you say, okay, well now we're not just one person writing the code, but we're going to be a team of 10. and we're going to figure out, okay. how are we going to put this altogether so that not only can we create something that's going to be a cohesive whole, but we also have to keep our minds focused on who the users are and how the users are going to perceive it and so it's a very creative process.
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it's, you know, it's extremely difficult to do and by the way, when you say, okay, now i'm not only going to do that today, i'm not going to start with this core, but now i need to make it extensable, and think about going into the future and creating this system that over decades now, you know, two or three or four decades, where we are going to have to make these selections and choices that make our users want to use our system. remember, java became very popular. right? that means it was a really great interface, right, the programming language that they created, the structures that they created, all of these interrelationships about, you know, thousands and thousands of different choices that these-- that these developers could make over the years, it's a very creative process and one
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that lends itself to copyright exactly, right? copyright protection is to protect the creative expression of the authors of the work and whether you have an author that sits down and writes a novel or whether you have a, you know, 10,000 authors that work for the same organization that create this programming, you know, structure, it's not only a lot of work, but it's a lot of creativity that goes into it. it's not maybe the same type of creativity that you see, you know, a novelist have, but there's so many similarities that, you know, that it's really remarkable how consistent it is with the way that that novelists work. >> and this is what i'm having trouble with. you don't have this kind of sharp divide between kind of the innovative industry and engineers and scientists and
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creators and artists. and we understand in our language, they talk about the elegant solution, you know, that innovation is created and creativity involved in innovation and the two often go hand in hand. >> you know, why is this -- why is this the way that an android phone looks? right? you think about kind of famously steve jobs saying when he-- when he came out with the iphone, right, i don't want any buttons on it. well, you know, that's really difficult. you know, i -- you know, if we were talking about a different company that came up with the smartphone, i kind of cringe to think about what our smartphones would look like, you know? >> you mean-- first it would be beige. >> listen. >> a box. >> dell is a fabulous-- and we love dell. it certainly would be beige, i
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imagine, but i really, you know, there would be -- and again, not talking about dell, but you know, you think about some of the engineering companies out there. there would be antennas, i'm sure, involved in our smartphones that would be visible that would catch on our pockets and things like that. well, it's the same thing when you're trying to create elegant code, you know, code that people remember, code that makes sense that solve the problem that, you know, they're trying to solve. but that doesn't mean that there's only one way to do it. there are a variety of ways and you make those choices and that's in and of itself what's creative. >> and what you're describing is not just creativity, but testing thousands if not thousands of work hours. >> oh, yeah, it's massive. >> what you're describing is occurring even before beta
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testing before you're sending out to consumers and what do they think and dos it actually work for their intended purposes. >> and then there's an iterative process. because the iphone didn't always look like this, i'm sure. it came out and had iterative processes and came out with a device that seems like it's pretty stable now, but it's always going to change and so you can think of the software interfaces as the same thing. you know, the sas software interchanges and evolves and gets more productive and gets more efficient, and all of those things are creative choices that we make. >> it's not so-- i mean, correct me if i'm wrong, then the argument seems to be being made by google that you created this -- not you directly, you, oracle, created
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this incredibly successful program and invested in effort and time and created this amazing product, but an intellectual process does is create they have and so successful you could lose your ip protection. if it's copyrightable we should have fair use and copies? >> i don't think that i can add anything to that. i think that's exactly what-- >> it seems to turn ip, intellectual products is to bring successful services to market in both the creative industries and high-tech industries on its head almost. >> and i think we have to be very concerned about, you know, not only with what this case does to copyright law, but also, you know, all of these copyright are, as i say, all of these legal regimes that companies have operated under for now four or five decades,
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relating to how we license our software to our users can be disturbed. and contract law is going to be impacted by this decision as well. because if there is no copyright, then what do our licenses prohibit? you know-- >> what can they prohibit? >> what can they prohibit? and so, that's a really interesting question, i think, that ought to be something that, you know, the supreme court looks at, you know, very, you know with jaded view here that we really are disturbing something that has been, you know, stable and not only the proprietary model, but if you look at the open source model, how did they distribute their code? they distributed under a software license agreement. if there's no copyright, how do
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you enforce the provisions of your software license agreement? how do you keep people from just kind of wholesale copying your work and going forward with their own? and the answer is, you can't. >> so i'd like to take a moment now to open it up to the audience for questions. there will be a microphone available so i see first in the back and then-- >> yes, my name is roger chochetti, i have a couple of questions and i think you've done an effective job in presenting your position. two things i'd hope you'd go back on. first of all, what happened to the patent infringement issue, which you say was dismissed early on and was never resurrected. and secondly, if the case is as clear-cut as you're describing,
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how could a jury have found twice that this was fair use? i mean, it almost sounds like you're saying i stole the book and once i got if, i talked the jury into saying that i could do whatever i want with it because it's fair use. so, what -- maybe what i'm really asking, what are the argument 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 indisputably copyrighted. there's a long history of fair use. how does this fit into fair use, i guess is the question. and lastly, how are other technology companies coming down on this issue? you know, what other amicus and why are they taking the positions they're taking? thank you. >> three questions. i apologize. great questions, i want to make sure we leave time for
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questions for everyone. so feel free just to quickly answer the ones. >> sure, so the patents were dismissed. i don't know why they were out of the case. they're completely separate from the copyright claims and so these are independent claims on fair use, the jury actually, the first time, deadlocked on fair use and so it wasn't a decision by the jury. the second time they did find fair use. i think that that was generally, you know, because that they did not get all of the evidence that i think was, you know, kind of excluded in the case presented to them and i think that the federal circuit was right that the commercial use and the commercial nature of the use and the replacement not, you know, kind of the--
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they call it interoperatorability. and google calls it interoperatorability and it's replacement, i think from a legal position that cuts so far against a fair use decision that, you know that it probably wasn't the right decision by the jury. so, but, you know, i don't want to kind of get into disturbing jury verdicts, you know. >> but he mentioned well, the jury agreed there was fair use and that very successful narrative has been created around it, but oracle is really trying to copyright is the interface, computer interface, which is longstanding copyrighted and you can't do that. and i think as tim has explained that really, it was the 11,000 lines of code that google copied that was at issue. but you know, you mentioned a book and fair use and kind of
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raised-- reminded me of the google books litigation where fair use prevailed in that case and are there any parallels here between in case and the google books, do you see? >> well, i think that it's similar, right? if you had you know, told me back before the google books case, right, that it would have been okay to just go through the library, the public library and get a bunch of books and scan them in and you know, and you know, kind of do what google had done, i wouldn't have thought that that would have been a close question of, you know, fair use. i mean, i think that, you know, it was a kind of a twisted decision at the end that ended up-- ended up there, but the philosophy, i think, is the same behind it, which is we're just going to do it and, you
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know, and that's a business decision that's been made and you know, i think when you're -- you know, that's the job and the role of the courts, right, is to say, you know, when those kind of business decisions are made and it's kind of anti-the current copyright regime that we have, it's for the courts to correct those problems. >> all right. in the front here. >> and i just want to emphasize again, ensure that your proposition ends with a question mark. [laughter] >> you mentioned there were three types of licenses and one of them was proprietary so they could have actually paid, i presume, to have their proprietary system. the decision not to do that, you're saying was a business decision. how expensive would that have
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been? it just seems kind of crazy because google has some money. >> yeah, and thank you for that. i don't know, i have no idea what the economics of that were -- was at the time, but i imagine it was probably an expensive license. >> but by the way, the same point was made in the google books litigation. the publishers and authors said, you could have come to us, we would have licensed you. we were happy to have people read for of our work through proper licensing practices and google just made the business decision, no, we'll copy the works and impose upon you the cost of suing to enforce your rights. it's a practice that's been recently identified in the ip space as efficient infringement. where a copy makes a business decision it's cheaper and easier for them in the
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short-term to i am fringe an ip right and impose on the ip owner the cost and difficulties of suing them to obtain remuneration. so, in the far back. >> assume for a moment that software had been patentable not copyrightable, how would that have changed the competitive landscape in the software industry? would it have been better? >> well, software is both patentable and copyrightable and i think the way that i at least look at it is, you know, the patent protects the inventions, right? and the copyright protects the creative expression of the authors when they created the code. so that's -- and when they
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created the sequence and the organization of their code. and so really, the regime that we have now is both patent and copyright and it's, you know, it's not just software that, you know, has multiple ways of protecting something, you know, some piece of intellectual property, but it is interesting, again, that kind of given all of these protection schemes that we have here in the united states, we still have the most robust software industry in the world. so something's working is kind of my point and we should be careful before we disturb it. >> yes, my name is joel, retired government. two things come to mind, look and feel with samsung and apple, this went on for years and only the lawyers benefitted.
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and then j-store, the guy committed suicide, was his name swartz or something like that, and they reversed the decision and it was on articles-- and this is a much more precise argument and you had the correct sense of this. when i was a contracting officer i dealt with sas. there was one of the software maintenance upfront, everybody else paid in arrears. [laughter] >> well, thank you. and you know, i think -- thank you for being a customer, i appreciate that. you know, sas is a great company that, you know, has done a lot for -- the uses that our customers make of our software are just phenomenal and we really love our customers and you know, i think in order to continue to become, you know, kind of one of those
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customers or companies that is on the cutting edge, this is what we need. we need an ability to determine what our business model is. it's really for us to determine that, i think once we figure out that the legal framework, how the legal framework that we're left with allows us to make those decisions and choices, but, you know, what we're seeing, i think, in in case is a-- an organization that is not a tech company, you know? google is not really a tech company. what they are is an advertising company and so they give away their tech, right? they give away their software that they develop. they give that away for free, except, of course, for their search engine, right, that they completely control and lock down. so their valuable stuff they
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keep, but they also make their money on advertising. there are a bunch of other companies. i think the gentleman here asked about, well, why are other technical, tech companies kind of like microsoft and amazon supporting -- and i don't know if amazon has come out and supported google's position, but microsoft and ibm and red hat have come out and supported google's position. why is that? well, you know, they don't make their money on their tech either. they're changing cloud business services, right? so you see how they're making their money is charging for compute cycles in their big cloud services facilities and they, you know, and kind of speaking about microsoft, i mean, they make their money not distributing their software anymore, it's all in the cloud
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and so, they're kind of charging, you know, you might all be paying microsoft $99 a year for access to their, you know, kind of suite of software, well, that's a very different model than actually, you know, kind of charging for the softwear. you're charging for the access to the software and they're getting compensated based on the cycles. so software has kind of become the content for these big cloud service provided, if they can get it free or for a reduced price, isn't that great? wouldn't netflix like to have disney for free? >> hi, thank you so much. in regards to, let's say-- let's assume that this case weighs on the side of oracle, how would the tech field
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change, per se, you're saying if it goes on the side of google, for example, all of these large corporations are able to do this for free and on the reverse side, how could-- if they infringe on copyright and limiting the field altogether. making it only a couple of organizations and since we're going into the metaphysical and technology in the future, how is that going to prevent like upcoming actors or young entrepreneurs from pursuing this? >> that's a great question. i think that what we're really doing on oracle's side of this equation is kind of preserving the status quo that we've always seen in industry and you haven't seen any lack of innovation in the software industry, as a result of the current, kind of intellectual property rubric that we have in
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software so the change is really on the side of google. if you really want to disrupt an industry, you know, stave that software any type of software is uncopyrightable, i think that that would be a change that would really disrupt, you know, not only big businesses, but it's hard to see how, you know, what the industry looks like after that kind of change, although, you know, i would expect that we would see the big companies get bigger. >> i mean, just also reemphasize since the great points that tim just made, we've had robust copy right code, and robust patent protection for the past several decades. and what this has facilitated
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is all of the myriad business models and approaches to distribution of products and services that we have and it's why our innovation economy is so strong and vibrant, it's not because ip service is a lockdown. intellectual property is property, and what is property, but a platform which which people can then make choices now they choose to structure their businesses and enterprises, creating them, al value chains that the way that apple has or creating open source models the way that red hat and ibm has. and ibm is on record saying that patents are fundamentally important for open source because of the forced disclosure that patents require and so you're forced to disclose your code. and the way that your software functions. and so, intellectual property doesn't-- locked down is the way that you're characterizing it.
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a common way that people think of it and that's how we look at it socially, the infringement lawsuit. what department of commerce has said, trillions of dollars, exchanging hands between businesses and innovators and startups, something that google doesn't often try to talk about much is that they received a patent on their original brand and the original version of their search algorithm back in 1998. they use that for venture capital. and we see that on shark tank every week. what is the first question from the capitalist, do you have a patent on this. >> no. >> you just went on national the television and gave away your entire idea. >> and your response is perfect. >> well, i think also, you know, when you look at a
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business like ibm red hat. they've come down on google's side by saying basically that you could protect these interfaces by trade secret. which is really interesting, right? because how could you create an interface that's 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? secret? >> yes. >> i'm astonished. >> by the way, that's how -- gl has made changes for the algorithm since it first represented it and that's how they protect their search algorithm right now. and they protect it very vehemently and that's the key
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to a lot of their income as an advertising company. is there another question over here? >> okay. speak very loudly because it's being recorded. (inaudible) >> google those 11,000 lines of code from-- before it was bought by oracle, the case-- >> repeat the question to make sure. >> exactly. so the question was, if google had copied the 11,000 lines of code before it was bought by oracle, would there have been a case? and the answer is yes. you know, and i think that's actually factually the way that this happened was the transition to oracle happened
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after the copying occurred. so, yes. is there anyone else? >> excellent. >> to circle back to the topic in your amicus brief now google has this between api and software subject to the copyright act. we've seen cases involving new types of technology. a lot of those cases for better or worse, that the system does rest on the various distinctions between types of technologies. i guess carpeter versus united states is the more recent example of things. and other types of data, therefore the doctrine applies differently. do you think that-- and i know it's hard to read the tea leaves in these
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scenarios, do you think that a lot of it at the end of the day will come down to whether or not the judges at the end of-- or argue before in their opinions, think of api as as plain old software, and how using 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, kind of going back to my, you know, there are versions of, you know, types of software 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 that software is unprotectable and other parts are, when congress has so clearly said software's
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protectable, it seems to me like that would be a very difficult, you know, kind of distinction to draw and you know, 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're saying is the stuff that everybody agrees is copyrightable. in fact, there's this-- the kind of the max, if you go and look at the actual briefing, you'll see google relates to this kind of max example where it's, you know, give us the maximum value of-- between two values, that's what you're going to return and this is one of the functions that they say. well, the math part of that
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which is compared to numbers and return the larger, is not that creative, right? the structure that it, the sequence and organization and structure of what we call the it 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. and so, you know, to me, it's really a, a pretty simple, you know, decision here that -- that, you know, congress didn't make distinctions between these two different types of code. this is merely hindsight, good lawyering or at least the best
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lawyering that we can do to basically paper over the business decision that was obviously made here to violate software license agreements. >> yeah, right. wait for the mic. great, thank you. >> so not a technologist, but what are the practical business implications for google if they were to lose this case in terms of the current usability of their products? what happens if the status quo changes? >> sure. the ultimate outcome of the case would be, i suppose, damages. i don't know whether -- i imagine there's a possibility, right, of an injunction in the case of intellectual property. now, of course, that would be, you know, 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
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is that google would, you know, relent and pay oracle a license fee. >> right. i mean, even if there is an injunction issue. the function of the injunction between two corporate actors is to then have a license agreement reached between them, which is what happens 99% of the time. injunction is not the end of the story. 99% of the time, injunction is the beginning of the process done 10 years ago when the person says, okay, now let's have our business discussion and let's create the license agreement and i expect there will be damages from the past, you know, 10 years or so of infringement and they'll enter into a license going forward which is very common and-- >> the other thing that might happen, and i'm kind of remembering, but i'm not-- you can't quote me on this, but na google has already fixed the
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problem. so, you know, going forward might not be an issue. and in fact, you know, they protest that it can't be done. well, there are examples of, you know, kind of these api's being rewritten and spring is one of the things that oracle itself created an alternative api to the java, the code involved specifically in in case. so i think that, you know, there are certainly ways that google could, you know, and may have already adjusted its business going forward. >> and i'd like to follow up on the question i was asked earlier about kind of the courts making distinctions because you've talked about how if the court rules in favor of google, it would unsettle established legal practices.
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if the courts start making distinctions, what counts as copyrightable and what you don't in the statute. what does it do in terms of the stability of the law going forward? will we see lots of cases people are trying to say, well, this time, this is different? >> yeah, i think that that's the likely state of affairs going forward is that we will see things that we think are easily copyrightable. you know, coming into question because i don't know if there's any near the patent office and the clock is a work of art, but it's also functional and so, you know, is that functional and so is that copyrightable or is it a work of art and is that copyrightable? and so, software code is both functional and it's also a work of art and that's the thing
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that i think we should leave folks with. >> yeah, so, well, thank you all for coming to this. and thank you very much to tim. this is -- [applause] >> it's an auspicious day not just because we had the ability to hear from tim about the nature of the case and what's happening, but for those who do not know, the issue of the patent in early 1990 of jacob and his colleagues on cdma technology. anyone who doesn't know what that is, 2g, 3g, 4g, soon to be 5g that makes the smartphones smart and also awn of qualcomm, it's an inauspicious day. and thank you to tim and talking about the birth of the smartphone industry. thank you to the audience for the great questions. appreciate it. >> thank you.
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[applause] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] . [inaudible conversations] . . >> the south carolina primary, join us to hear the results. live coverage saturday evening on c-span, on demand at c-span.org or listen live on the free c-span radio app. >> the senate's about to gavel in. it's a busy day for senators. earlier this morning, they attended a briefing with government officials on the federal response to the coronavirus.
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coming up in 90 minutes, they'll take three votes on judicial and executive nominations and after that they'll break for the weekly and procedural votes on two abortion related measures. now live senate coverage here on c-span2. the president pro tempore: the senate will come to order. the chaplain, dr. black, will lead the senate in prayer. the chaplain: let us pray. o lord our god, how excellent is your name in all the earth. from dawn to sunset, your mercies sustain us.

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