Google copyright claim mistakes the medium for the message

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Google has taken Marshall McLuhan’s adage “the medium is the message” a bit too far, judging by its Supreme Court brief in the pending dispute with Oracle over its copying of Java code into the Android platform.

Hoping to keep its grip on internet advertising as consumers moved to mobile devices, Google was eager to launch Android in 2007. The mobile operating system would be of little benefit to Google, however, if consumers didn’t embrace devices that ran it. And that would not happen unless developers created a wealth of Android applications.

To increase the odds that developers would build those applications, Google included 11,500 lines of Java “declaring code” in Android. Developers were already very familiar with the declaring code, which allows them to include in their applications pre-written mini-programs for common device functions, thus enabling them to write applications more easily. By replicating that ease of programming, Google sought to incentivize developers to code for the Android platform, and thus boost the speed at which application would become available.

However, Oracle owns the copyright in the Java declaring code, which means Google should have gotten Oracle’s permission before copying it. But Google refused a copyright license because it didn’t like Oracle’s terms, which would have required Google to ensure that Android remained compatible with other Java-based platforms. Fearing developers would be reluctant to program for Android if they had to build device functions from scratch or learn different code, Google took the Java code anyway.

Faced with an Oracle lawsuit, Google now claims that the declaring code should not be copyrightable. As Google sees it, that code is not only expressive, but also functional—allowing developers to call up pre-existing subroutines—and including Oracle’s popular code was necessary to enable developers to continue programming the same functions in Android.

But as the Copyright Alliance explained in its amicus brief to the Supreme Court, all computer code is ultimately functional, and Congress made it copyrightable nonetheless. Accepting Google’s attempt to artificially distinguish declaring code from other code based on functionality would be an exception that swallows the rule.

The popularity of the Java code only further undermines Google’s position, rather than support it. Copyright is meant to reward creation of new works, and the Java code’s broad acceptance demonstrates its value. Google had other options, including creating new declaring code. And if Google wanted to benefit from Oracle’s innovative way to program device functions, it should have licensed the right to do so.

Perhaps recognizing the weakness of its copyrightability argument, Google has also tried to excuse its copying as a fair use, claiming it “transformed” the declaring code from the desktop market to mobile applications.

That argument fails factually and as a matter of law. Java had already been used to program mobile devices, such as those from Blackberry and Nokia, as well as the Amazon Kindle. Regardless, merely changing the “medium” does not make the appropriation transformative when the “message” is the same. To be transformative, courts have held that the use must alter the purpose and meaning of the expression. Here, Google used the identical declaring code for the same purpose: allowing developers to shortcut the programming of common device functions.

Courts look at a variety of factors when analyzing fair use, including whether the use is commercial and its impact on potential markets for the copyright holder of the original work. By using the same declaring code to create a competing product, Google hindered Oracle’s opportunities in the mobile marketplace, and it shouldn’t be deemed fair.

Holding otherwise would harm not only creators of computer code, but copyright owners, and especially small creators. The Copyright Act specifically recognizes the exclusive right of copyright owners to create or license derivative works, such as turning a paper book into an e-book. Allowing a competitor to beat a copyright owner to a new market by claiming its copying transformed a work in a new context would make the derivative right meaningless, especially for smaller creators who may not be able to move as quickly as big corporations.

For copyright to retain its role as a driver of creativity, the Supreme Court should continue to distinguish between the message and the medium.

Keith Kupferschmid is CEO of the Copyright Alliance.

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