tv Hudson Institute Discussion on Google v. Oracle CSPAN February 18, 2020 4:55am-6:06am EST
wjbh tv in boston hosted a debate between senator ed markey and two of his challengers in the massachusetts democratic primary. joe kennedy and shannon les c-span, watch live on or listen live on the free c-span radio app. next, a discussion on the possible copyright implications for software development ahead of the supreme court case google v oracle. the hudson institute hosted this andt, looking at copyrights the importance of code being protected by copyright laws. it is an hour 10 minutes. >> all right, i believe we will now
adam: all right. i believe that we will now begin. so thank you all for coming to our event today on the google v. oracle case. officially titled consequences of the case. i actually have my own subtitle, which is copyright and the future of the industry. very it is a very significant case. absolutely delighted to have the director of patents to speak to us about the legal policy and commercial issues raised by this case. my name is adam mossoff. i'm a senior fellow at the hudson institute. and i'm the chair of the newly constituted forum for intellectual property at the hudson institute. this is our inaugural event and we're delighted to have it on such an important issue and such a great speaker. we will be hosting events and promoting data-driven fact base research that explores and investigates the important and key roles that intellectual property plays and not just
driving the u.s. economy for the past 230 years but all innovation economies throughout the world creating the foundation for flourishing societies. and we hope to play an active role in insuring that fact-based research and data-driven studies are in the hands of our policymakers as they consider the very important issues such as the decision that has to be made in the supreme court and legislation that has to be considered before congress and regulations that has to be adopted by our agencies. as i mentioned i'm very , delighted to have as our speaker today tim wilson director at patents at the south institute. i would like to emphasize that we are both speaking on our individual capacities and not on behalf of our respected institutions. normally, i do not give large or long introductions of people. if you wish to discover all of
mr. wilson's 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 bing or google, and you find all that you wish about tim wilson. but thank you, tim for being here today. tim: my pleasure. thank you. adam: so i wanted to kick off our discussion before we start talking about the google v. oracle case, many people may not have heard about the sas institute and 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 so could you please tell us a little bit about your company? tim: sure. sas is a largely held software company in carried, north -- in cary, north carolina which
, is about an hour from here. and we have been in the software business since before there was a software business back in 1976 we were founded but actually have our roots going back into the 1960's. and the problem that sas was trying to solve was to determine patterns in data that you couldn't see with the human eye or people couldn't perceive, statistics, analytic, artificial intelligence all those things that sas is best at developing. and so we have about 14,000 employees around the world now. we are, you know, like i said, a large -- 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 -- 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 a a.p.i. which is the 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 a.p. let's be easy to understand and used by our users. and that has really been one of the major reasons that sas has been successful at becoming a big software company and one of
the reasons this case is very important. adam: and the case centers around an a.p.i. for the nontech geeks in the audience or who may be watching by live stream it stands for -- >> application program interface. so what it actually means, i think -- in a technical sense is it kind of a shorthand ways to refer to and access big blocks of computer code. any of the kind of programmers in the audience, might know the various generations of software has been kind of first generation system. second generation systems, third generation systems. a.p.i. is kind of really the -- the -- referred to as the fourth generation system, where we're
not actually directly programming, you know, in -- in, you know, a -- a programming language like c. but we're programming the system in big blocks of code. and so it's -- it's really an important and modern way to interact with the code. adam: all right. i'm sure we'll dig into some more details in your remarks. we're going to have a moderated back and forth between us to lay the foundation and what the case is about and policy issues and we'll open it up for questions for the audience in about 20 or 30 minutes. the supreme court will be hearing oral arguments march 31 in oracle vs. google. when oracle first sued them for copyright infringement.
the case is centered around this little device. i used to refer to this as my infringe device when i would talk at patent conferences because it's the samsung and android device. now, i can refer it to as my infringing device. can you give us some of the relevant background here and why i'm making these references? tim: sure. awesome. back in the 1990, java was created by micro systems as a new very popular software development, you know, programming system. and sung was later sold to oracle. and so that's how we got kind of this case, you know, in style as oracle being the main actor 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 -- 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 2007, i believe, and that really was for a company like google or something that they had dominated obviously, the search on the p.c. platform. and you know, kind of the -- 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 smartphone. and so you know, what we saw were -- was this platform that
java had created or that sung had created that allowed you to run on any platform. and that includes the smart phones in smart phones they had their own version of java. i think it was called java s.e. that was a popular way to create apps on -- on this smartphones. around so, you know, -- i guess around that time, google acquired a company called android. and many people don't remember that that was in the beginning. this was something we are going to go into the smartphone business. and of course, when they got it,
maybe they didn't know that it wasn't complete or wasn't as good as they thought it might be. and so they were at the same time also kind of hedging their bets and talking to sung and saying well, we want app license, son. or we want to license java as well particularly another alternative to get into the smartphone business, and i think, you know, kind of the evidence of the case has shown that, you know, that -- that -- the talk kind of broke down with sun. over the fact that, you know, sung made their job a platform -- made their java 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 follow the open model.
and google didn't want to do that. and so they didn't want to kind of give away their -- their version of what they create using java. and so talks broke down. and you know, everybody knew what that meant, right? they weren't going to use java except that's not what actually google did. they made the decision that it would be more expeditious to copy some of what was in java. and to instead of designing their own they just decided that they were beginning to take it. so, that's kind of the -- you know, the background of the dispute. are they were actually in talks. was the made available two developers? >> i think there were three different types of licenses that you could take.
>> one of them was the open model. another was a fully proprietary model, and you had to pay for that. so i think there were business decisions that were being made on both sides obviously. but you know, it was google that kind of knead business decision that they weren't going to license java under the model that was offered. adam: and were there alternatives? could google come up an alternative if they wanted to? tim: well, that's kind of the crux of this case, right? if google wanted to do it why didn't they do it? one of the things that it proffered was that it was impossible or nearly so impossible for them to -- once they have adopted, you know, the
fact that they're going to use java to come up with their own version. and that, i think is demonstrably false. >> it came out through discovery but there was a very famous and important statement internally from a google engineer, tim lindholm. who said at google that time. "what we've been doing, he was referring to the founders" and c.e.o. is to investigate what alternatives exist. we've been all there and we concluded that they all suck. tim just described the licensing
negotiations broke down. how many -- how much code did that copy? tim: so it's undisputed by google, that what they copied were 11,500 lines of oracles copyrighted code. it's interesting. because you can say well, that doesn't seem like much in the context of maybe millions of lines of code that you might have in a smartphone. but you know the issue is not just the lines of code. it's how they're organized. it's all about the creative processes that go into coming up with a system of -- you know, of code. that that actually works for the u.s. e. and think one of the things that -- many folks miss is, google
wasn't just copying the code to get to code. what they were copying the cold and to get programmers. because if you learned how to work with the java programming language and you were a, you know, good developer, and now, all of a sudden, you are days fasted with a new programming language that you to relearn, that is a transaction cause do a want to learn how to do in this program and the android operating system that's different than the java that i actually have spent a lot of my time learning and figuring it out. what google wanted to acquire was not necessarily the java code but it was the java
programmers. adam: so that's kind of an interesting spin on what google's intent was here? there were copying a book because there's a established fan base for that book. tim: yeah, it's like the copy of the white album, right? we didn't copy the white album to get the white album music. what you were trying to establish is the fan base. >> we were talking about danger remixing the white album and the reason why he picked the white album. he could have fixed a garage fan but then he wouldn't have had the fame and the immediate access too. thank you for fans that you have by mixing it. >> at the time java was one of
the most, you know, popular programming languages in the world. and so this was -- you know, this was a choice that they made that was, you know, something that brought the group of programmers to the platform. remember what google was really competing with, i think, as a business at least in their minds was the iphone was out there. and the app store and the iphone was out there. and we needed to create one for android. and so that means that we have to create a platform that developers are going to be attracted to. >> i actually had the very first motorola android phone the one with the slideout mechanical keyboard. they like the android on the lucas films.
i remember distinctly that device. i did not understand that i was carrying and infringing device. oracle sued there for copyright infringement. what happened through the past 11 years of litigation that this ended up as google? it is appealing to the u.s. supreme court. >> you know, they -- based on copyright infringement. it went to a jury trial and the jury actually decided that, you know, that -- 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 where 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 sequence and organization of the a.p.i. packages are entitled to copyright protection and therefore, they reverse the district court and send it back for a new trial on fair use. so then they went back -- back to the district court and decided fair use. now, 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 to the federal circuit. this time oracle was arguing that, you know, that fair use
was not an appropriate decision for the jury. and they reversed and said that google's stance 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. it was a competing use. it was not a fair use. adam: and so google has appealed to the supreme court. and this is a really significant case, right? because the two question nas the supreme court has granted review on is the copyright ability of a.p.i. and whether this copying of the a.p.i. if it is copyrighted it counts as fair use. adam: when was the last time the supreme court heard the copyrightability of a software program? >> i am not aware. adam: this is the first time
they will rule on the copyright ability. this will be the first time knew the -- supreme court decides the bounds of that statue. and the fair use decision has been a long time since the last time we had a fair use -- tim: i mean, copyright has been a really static body of law. i think everybody and including, you know, if you look at some of the evidence in the case, you know, from the district court. you know that -- that google knew what they were doing, right? they knew that they needed a license for their use of java. and that they intently didn't get one. >> yeah. so -- and commercial benefit, right for create a competing product that it would seem at
least within his stake which is copying a small fraction of an article when teaching my class. if i immediately find something that i think is relevant and -- and vicinity decided to incorporate this permanently into my teaching materials. it just came out recently. i might take a paragraph and put it there. i'm not competing but if i continue to use it, i would have to get a license. >> anything remarkable happen in the trial that the audience should be made aware of? it's kind of understanding the facts and foundations for what's going to be happening at the supreme court? >> yes, there was lots of evidence that was excluded by the judge in the trial. you know, the -- the -- kind of the big things were that they excluded evidence that android supersedes java in the markets
that java occupied before, right? and so this kind of goes to the arguments that google has made of interoperatability, and it kind of goes to the point that, this is not really interoperable. you think of something being interoperable and that was not the intent of google. there was a moment where they were actually what google intended to do was kind of being a complete replacement. in fact, that's what's been born in the market. we now have google throughout for smart phones. 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, that one offer the markets that they didn't compete with java on were for, you know, this was just about smartphones. but they fully well knew that their next rollout was going to be to p.c.'s and computers. and so at the time -- i think it was the day after discovery closed that google made the announcement that they were going to make this android available as an operating system for -- for computers. tim: so that evidence never kind of met -- you know, kind of the
review by the jury. and so i think there are a lot of things -- that -- that -- you know, even if the supreme court thinks that the fair use argument, you know, kind of is -- is fair, let's put it this way. that we ought to be looking that decisions that were made by the district court on exclusions of evidence that ought to go back. and we ought to be in a sense going back and retrying for a third time. the fair use issue. and -- and i think get a fair read of all of the evidence that we've seen in the case. >> the s.a.s. institute is -- is that free from the case? tim: yeah, so we have put together an amicus brief and are getting prepared to file it in the next -- next few days. and obviously, one of the things that we talk about is 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 f.p.i.'s, that there's some magical distinction between software interfaces and software in general, which we all including google agree it's copyrightable. congress didn't write the statue that way. what congress said is that software is copyrightable. full stop. code is code. you know, it's all, kind of somewhat functional because it operates a machine hat the end of the day.
but it doesn't mean that it's not creative just because it operated on a machine. all software operates on a machine. there's no kind of logical position where you can say that one type of code ought to be treated as not copy writeable. and another type of code should be written as copyrightable. for as much respect as we have for the judiciary do we want judges making those fine distinctions. as i said before, there are, you know, generations of different types of software that -- that are out there, you know, that -- that kind of build on one another that even under the current rube rick that all of this is protected by copyright, you know, we still see massive advances. so far the positions that we see from the folks that generally are open source folks which is philosophically a different way to look at the world. we've had a really good robust software industry here in the united states. it's much more robust than any
other places in the world. and we've done it under the regime that we have. what google is looking to do is destroy all of that experience that we have created this really robust software industry. >> yeah. i mean, the u.s. took the lead throughout the entire world. and extending copyright extension but patent software. it was in the 1980's and 1990's. and we are living the results of this now. incredibly strong heim tech industry in silicon valley and incredible new devices and products and services brought to you -- we all can share our cat videos from the super computers
that we have on our pocket that we call phone. my children would never knee a cell phone was a something that could you talk to someone else. >> you know, we're making medical advances that we wouldn't be able to detect cancer the way they're detecting cancer using artificial intense generals that sas has created. all of these investments that you make in making sure that our software product is at the cutting edge. you know, requires capital on 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 the software. adam: let me follow up quickly. people -- that tends to be a narrative that hits easy to code. anyone can make that just takes
a couple of hours and you can make millions. >> how is it for you to develop the first right and develop 11,000 line of code. he's now interface program for lots and lots of programs. >> for that, let's look at java for a second. you know, no, let's put ourselves back -- back in the early 1990's. right? you know, do you remember microsoft windows 95 coming out and being that, you know, really -- this is the time frame that we're talk about here. and you know, there are folks were starting from scratch. how do you create a software programming with language and system from scratch. you know, what you do is you write kind of -- you come up
with the first functions that you think -- you're thinking about, well, this is what the system needs to do, right? it might be print. independent might be you know, figure out how to get the data out of the system. >> how do we process data, and you know -- >> how do we present it at the end? or how do we create files at the end? those things that are the crux of -- how a computer operates. well, you to figure the language that you're going to use, you know, to convey that to the users so they can develop a so you havelanguage to kind of come up with those ideas. and you have thousands and millions of different, you, no things that you can consider as alternatives in that. and it's a very pain staking and kind of creative process. even with the simplest part of that system, and then when you
say, 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 ok. how are we going to put this together so that not only can we create something that's going to be a cohesive hole but we also have to keep our minds hosted on who the users are. and so it's a very creative process. it's, you know, it's -- extremely difficult to do. when you say ok, now i'm not only going to do that today. i'm not going to start with it. now i need make it extensible. i'm going to have to think about going into the future and creating, you know, this -- this system that over decades now, you know, two or three or four decades. where we're going to have to
make choices that will make our coffee. java became very popular, right? that means it was a really great interface. the programming language that they creates -- the structures that they created. all of this interrelationships about, you know, 1,157,000. you're watching choices that these developers could make over the years. it's a very, very creative process. and one that lends herself to protection. it is the creative impression of the board. or whether you an -- you know, 10,000 authors that work for the statement organization that creates this programming structure. >> but it's a lot of creative they goes into it. it's maybe not the first type of creativity. you see i'm a novel hist. >> you have.
>> there are so many similarities that you know, that it's really remarkable how consistent it is with the way that -- that novelist work. >> yeah. you don't have this kind of sharp device -- they are -- creators and artists. the elegant solutions. innovation was creative and creativity involved. but they go hand and in. >> why is this -- why is in the way that an android phone looks like. we think about steve jobs -- i don't want any buttons on. well, you know, that's really i difficult.
you know, i -- i -- if we were talking about a different company that came up with the smartphone. i kind of cringe to think what our smartphones would look like. you know? >> first of all, it would be beige. >> i'm not -- it's a fabulous box. and we love that. but it certainly would be dangerous i imagine. >> but -- you know, there would be -- and again, not talk about del. but you know, think about it. you think of some of the engineering campaigns throughout. there would be it on our there and catch in our pockets. it's the same thing that you're trying to create elegant code. you know? the code that people remember. code, that makes sense to solve the problem. you know, their trying to solve. but that doesn't mean that that
there's only one way to do it. there are a variety of ways and you make choices and that's in and of itself what's creative. what you're describing is not just creativity but -- you know, thousands if not tens of thousands of workers hours. >> before you're sending out to consumers. actually work for their processes. >> there's quite of processes because the iphone didn't always look like -- whatever this is. i'm not sure. it -- it, you know, came out and had processes and came up with a device that seems like it's
pretty stable now. but you know, it's always going to change. >> and so you can think of the software. he knows the incredible sas. and you know, gets more -- you know, productive and get more efficient. and to all of those are creative choices that we made. adam: correct me if i'm wrong. the arguments seems to take a walk. >> you or oracle. you invested all this effort and created this amazing product. get them in the market. bet so successful. you neither has been copyrightable. >> we should have a fair use and copy. i don't think that i can add anything to that. i think that's exactly what --
>> that's your property to bring products to central market both in the creative city and the high-tech industrial. and i think we have to be very concerned about not only this case but what it does to copyright law. but also, you know, all of these copyright -- all of these legal regimes that operated under for now, four or five decades. how does it argue? users can't be destroyed. >> it's contract law that is going to be impacted by this decision as well. because you know, host of the morning right of the copyright. then what do our licenses prohibit. >> you know, what kind they prohibit.
and so that's a really interesting question, i think that ought to be something that -- the supreme court looks at very -- you know, very. there are very few that we has been stable and not only the proprietary model. but the you look at the open source model, how did they distribute their code. >> if's no copyright, how do you enforce the provide of your software licenses agreement. >> how do you keep people with that work copying your work. and going forward with their own. and the answer is. you can't. >> i'll let you take the moment to open it up to the audience. there will be a microphone. i see first in the back. and then in the front too. >> yes, my name is roger coccetti.
and i have a couple of questions. you've done a great job of presenting. but two things i hope -- i hope you could go back on. first of all, if copyright infringement issues which was dismissed every time. and second place if the case is as clear cut as you're thinking, how could a jury have found that this was fair use? >> it also saying this is for us. and once i got it, i talked the jury because it's fair use. >> one of the arguments on the other side that would persuade two juries that would say this is not infringement this is fair use even though assuming
everything accurately it was indisputably copyrighted. fair use is not -- i mean, there's a long use of history of fair use. so how does this fit into fair use i guess is the real question? and then lastly, why are -- how are other technology companies coming down on this issue, you know, why are they taking the position that they're taken? >> three questions, i apologize. great questions. i want to make sure we leave time for questions for everyone. so feel free to quickly understand the ones you understand. >> sure. so the patents were dismissed. i don't know why they were. they're completely separate from the copyright claims claimed. and the jury actually for the first time deadlocked on fair use. and so it wasn't a decision by the jury. they 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. you know, kind of -- excluded in the case. and i think the federal court was right that the commercial nature of the use and the replacement not -- you know, not kind of the -- they call it interoperate. -- it probably was not the right decision by the jury so, but i do not want to get into disturbing jury verdicts. >> the jury agreed there was fair use.
very successful narrative has been created. what oracle is trying to copyright is the functionality of the interface, which is long-standing, you cannot do that. i think as tim has explained, it was the one -- the 11,000 lines of code that was the issue. you know, i mentioned the book. and even that was an issue that -- are there parallels between this case and google books that 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 ok to just go through the library public library and get a bunch of books and scan them in.
and kind of do what google had done, i would not have thought that would've been a close question of fair use. was a kind of a twisted decision at the end that ended up there. the philosophy i think is the same behind it which is we are going to do it. that's a business decision that has been made. when that is the job and the role of the courts, to say when those business decisions are thee and it's kind of anti- current copyright regime that we have it is for the courts to correct those problems. adam: all right in the front here. and i just want to emphasize
again. insure that your proposition ends with a question mark. [laughter] >> you mentioned there were three type of licenses and one of them was proprietary. so they could have actually paid i presume to fit their decision. the decision not to do that was the business decision. how expensive would that have been? money.has some >> thank you for that. i don't know. i have no idea what the economics of that were, at the time. by imagine it was probably an expensive license. >> by the way the same points was made in the google books. he does a publisher and author and said. we are happy to have leave more of our work great business
practices. >> we'll copy the right that -- it's a practice that has been recently identified in the i.p.'s decision. in the short-term do just infringe and i.p. and impose around the i.p. owner the cost and difficulties of suing them to obtain enumeration. in the far back. >> assume for the moment that software that is -- had been patentable not copy writeable. how would that have changed the competitive landscape of the software industry? would it have been better? >> well, software is both
patentable and copyrightable. and i think -- copyrightable and the way i look at it is patents protect the inventions and the copyright protects the creative expression of the authors when they created the code. and when they created the sequence and the organization of their code. so really the regime that we have now is both patent and copyright and is not just waysare that has multiple of protecting something you know, some piece of intellectual property but it is interesting, again, that kind of given all of these different protection schemes that we have here in the
united states, we still have the most robust software industry in the world. so something is working is kind of my point and we should be careful before we disturb it. >> two things come to mind. samsung and apple, went on for years. only the lawyers benefited. and schwartz committed suicide and then the government reversed its decision. the look and feel. that was very vague. this is much more precise argument. you had the correct sense of this. when i was a contractor, they always wanted the software maintenance upfront.
everybody else stayed in arrears. >> well, thank you. thank you for being a customer. i appreciate that. you know, sas is great company that has done a lot for the uses that our customers make of our software, just phenomenal. we really love our customers and you know, i think in order to continue to become, you know, kind of one of those 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 is really for us to determine that, i think. once we figure out that the legal framework is -- how the legal framework that we're left with allows us to make those
decisions and choices. you know, what we're seeing i think in this case is an organization that is not a tech company. google is not really a tech company. what they are is an advertising company. so they give away their tech, right? they give away their software that they develop. they give that away for free except for their search engine that they completely control and lock down. so their valuable stuff they keep but they also make their money on advertising. there are a bunch of other companies i think the gentleman here asked about why are other tech companies like microsoft
and amazon supporting and i don't know if amazon has come out and supported google's position, but microsoft and i.b.m. and red hat have come out and supported google's position. well, why is that? well, you know, they don't make their money on their tech either. they are changing into cloud services businesses. right? and so you see how they are making their money is charging for compute cycles in their big cloud services facilities.
and they -- kind of speaking about microsoft, they make their money not distributing their software anymore. it is all in the cloud. so they are kind of charging, you might all be paying microsoft $99 a year for access to their suite of software. well, that is a very different model than actually charging for the software. you're charging for the access to the software. they are getting compensated. software has become the content for these big cloud service providers and if they can get the content for free or for a reduced price, boy, isn't that great? wouldn't netflix like to have disney for free? >> thank you so much. in regards to let's assume this case -- oracle. how will the tech field change? if it goes on the side of google for example, all these large corporations will be able -- on the inverse side, how is this weighing on oracle it more stringent copyright preventing these corporations from copywriting all of their lines and limiting the field altogether. making it only a couple organizations. since were going into the metaphysical and technology in the future, how's that going to prevent upcoming actors or young entrepreneurs from pursuing this?
>> that is a great question. i think that what we're arrange doing on oracle's side of this equation is preserving the status quo that we have always seen in industry and you haven't seen any lack of innovation in the software of the current intellectual property rubric that we have in software and so the change is really on the side of google. if you really want to disrupt an industry, you know, say that software, any type of software is uncopyrightable, i think that would be a change that would really disrupt, you know, not only big businesses but it is hard to see how -- what the industry looks like after that
kind of change although you know, i would expect that we would see the big companies gets bigger. >> also, we have had robust copyright protection. and robust patent protection for the past several decades. it is facilitated in all of the various models. the products and services that we have. it is why our innovation economy is so strong and vibrant. it is not because i.p. serves as a lockdown.
intellectual property is property. a platform where people can make choices about how they choose to structure their businesses and enterprises. the way that red hat and i.b.m. have. i.b.m. is on record saying that patents are necessary. you're forced to disclose your code and the way that your software functions. intellectual property doesn't -- lock down is the way you were characterizing it. that's how we experience it
socially because of the lawsuit. the infringement lawsuit. the department of commerce and many other studies have shown trillions of dollars exchanging hands between business persons and innovators and start-ups. something google doesn't try to talk about much. they received a patent. their original version of their search algorithm, they used that to obtain venture capital financing. we see this on "shark tank" every week. you gave away your entire idea. why should we invest in you? your response is perfect. >> thank you. i think so also, you know, when you look at a business like i.b.m., red hat, they have 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 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? >> yeah. >> i'm astonished. >> google made so many changes to search algorithms. it is a trade secret. they protect it vehemently. that is the key to a lot of their income as an advertising company. is there another question up here? not working. ok. speak very loudly because it is being recorded. >> google has -- by oracle.
>> repeat the question. >> 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. and i think that is actually factually the way this happened. the -- to oracle happened after the copying occurred. so, yes. >> to circle back to the topic in your brief about how google is creating this artificial distinction -- between a.p.i.'s
and software subject to the copyright act. we have seen it decide cases involving new types of technology. the decision rests on those various distinctions between types of technologies. location data is different than other types. therefore the doctrine applies differently. do you think that -- i know it is hard to revisit these scenarios. do you think it will come down to whether or not the judges at the end of the argument, writing their opinions, and apply it to the interpretation of that, how instrumental do you think that distinction will be?
>> well, i think that is the fundamental question in the case. is there this artificial distinction between a.p.i. software and other software. again, kind of going back to my -- there are versions of types of software systems, third generation programs, fourth generation programs and on and on and on and 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 is 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 is more creative than the code that we're saying is the stuff that everybody agrees is copyrightable.
in fact, there is this -- the kind of max if you go and look at the actual briefing, you'll see google relates to this kind of max example where it is 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, which is compared to numbers and return the larger is not that creative. right? the structure that -- the sequence and organization and structure of what we call the declaring code, the a.p.i. 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 is really a pretty simple, you know, decision here that you know, congress didn't make distinctions between these two different types of code. this is merely hind sight good lawyering or at least the best lawyering that we can do to you know, basically paper over the business decision that was obviously made here to violate software license agreement. >> wait for the mic. >> i'm not a technologist. 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 is a possibility, an injunction in the case of intellectual property 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 pay oracle a license fee. >> even if there is an injunction issue. the function of the injunction is to then have a license agreement reached between them which is what happens 99% of the time. injunction not the end of the
i expect there will be damages for the past 10 years or so of infringement, but then they will enter into a license going forward, which is very common. >> the other thing that might happen and i'm kind of remembering but you can't quote me on this. but that google has already fixed the problem. going forward might not be an issue. in fact, you know, they protest that it cannot be done. there are examples of, you know, kind of these a.p.i.'s being rewritten and spring is one of the things that oracle itself created an alternative a.p.i. to the java -- the code involved specifically in this case. so i think that, you know, there are certainly ways that google
can and may have already adjusted its business going forward. >> i would like to follow up on a question i was asked earlier about the court making distinctions. you talked about how if the court ruled in favor of google it would unsettle established legal practices. also, what do you think going forward as a legal matter, if the court starts making these distinctions, what counts as writeable. what does this do in terms of the stability of the law going forward? will we see lots of cases where people are trying to say this time this is different? >> i think that is the likely state of affairs going forward is that we will see things that we think are easily copyrightable come into question because you know, i don't know if you have seen there is a
caulk in the westin in the patentnear office and the clock is a work of art, but it is also functional. is that functional? is that copyrightable or is it a work of art and is that copyrightable? so software code is both functional and also a work of art and that is the thing that i think we should leave folks with. >> yeah. so thank you all for coming to this. thank you very much. [applause] not just because we have the benefit of hearing from tim about the nature of this case and what is really happening, also, for those of you who may not know, the anniversary of the patent issued in 1990 to jacobs and his colleagues to the invention of the cdma technology.
that is the soon to be 5g technology that makes all of our smart phones smart. he is also one of the founders of qualcomm. today is an auspicious date of innovation history. thank you again to tim. it makes sense that he started talking about the birth of the smartphone industry. thank you to the audience for the great questions. appreciate it. [applause] >> thank you.
shannon liss roared in -- shannon liss-riordan. >> c-span, your unfiltered view of government. created by cable in 1979 and brought to you today by your television provider. >> next, a discussion with craig smith author of "confessions of , a presidential speechwriter." mr. smith spoke about his work writing for president ford and george h w bush and evaluated the speaking style of president trump and the democratic presidential candidates. the discussion was hosted by the dole institute of politics at the university of kansas. it is 50 minutes.