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We Are so Appreciative for the Show of Support!

Latest Oracle Press Releases - Thu, 02/20/2020 - 03:00
Blog We Are so Appreciative for the Show of Support!

Ken Glueck, Executive Vice President, Oracle—Feb 20, 2020

NOTE: Before we turn to the more than 30 amicus briefs filed in support of Oracle at the Supreme Court, we are obligated to highlight the conduct of Google’s head of Global Affairs and Chief Legal Officer, Kent Walker. Over the past few months, Walker led a coercion campaign against companies and organizations that were likely to file on Oracle’s behalf to persuade them to stay silent.  We are aware of more than half a dozen contacts by Mr. Walker (or his representatives) to likely amici, but we probably only heard of a small piece of his efforts.

In our previous posts we detailed the facts in Google v. Oracle: Google copied verbatim 11,000 lines of Java code and then broke Java’s interoperability. We explained that Google knew fully that the Java code was subject to copyright but decided to copy it anyway and “make enemies along the way.”  We discussed IBM’s Jailbreak initiative, which was aborted because everyone understood—including Google and IBM—that Sun’s code was subject to a copyright license. 

We explained how there was never any confusion in the industry about how copyright was applied to software and no contemporaneous discussion whatsoever distinguishing between some code that’s copyrightable and other code that isn’t. All of this parsing of code was invented after the fact by Google. We discussed the impossibility of the Supreme Court drawing lines between some code and not other code (on a case-by-case basis), without undermining copyright protection for all computer programs, which is exactly Google’s intent. Lastly, we explained that Google’s business model is predicated on monetizing the content of others so its economic interests are correlated to weak intellectual property protection. And that is exactly why most members of the technology community declined to file briefs on Google’s behalf. 

More than 30 businesses, organizations, and individuals filed amicus briefs with the Supreme Court. The numerous amicus briefs filed on our behalf largely reflect actual owners of copyrights that have a direct stake in the outcome of this matter, and I wanted to highlight a few of them here. Most importantly, the totality of the briefs make an overwhelming case for the court to reject Google’s attempt to retroactively carve itself out of the law.

To start, the United States Solicitor General filed a brief in support of Oracle on behalf of the United States Government. The Solicitor General’s office will also participate in oral arguments before the Supreme Court, making clear that longstanding U.S. intellectual property policy is fundamentally at odds with Google’s position. It’s really hard to overstate how strong the Solicitor General’s brief is on Oracle’s behalf.  For example, the SG states “Contrary to [Google]’s contention, the Copyright Office has never endorsed the kind of copying in which [Google] engaged." … "[Google] declined to take [the open source] or any other license, despite 'lengthy licensing negotiations' with [Oracle].  Instead, [Google] simply appropriated the material it wanted." And, “[T]he fair use doctrine does not permit a new market entrant to copy valuable parts of an established work simply to attract fans to its own competing commercial product. To the contrary, copying ‘to get attention or to avoid the drudgery in working up something fresh’ actively disserves copyright’s goals.”

“[Google’s] approach [to copyrightability] is especially misguided because the particular post-creation changed circumstance on which it relies—i.e., developers’ acquired familiarity with the calls used to invoke various methods in the Java Standard Library—is a direct result of the Library’s marketplace success.” The SG continued, “Google designed its Android platform in a manner that made it incompatible with the Java platform. Pet. App. 46a n.11. Petitioner thus is not seeking to ensure that its new products are compatible with a ‘legacy product’ (Pet. Br. 26). Petitioner instead created a competing platform and copied thousands of lines of code from the Java Standard Library in order to attract software developers familiar with respondent’s work.”

And the SG stated, “The court of appeals correctly held that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was not fair use.” Lastly, “the record contained  ‘overwhelming’  evidence that petitioner’s copying harmed the market for the Java platform.”

A brief by several songwriters and the Songwriters Guild explains that much like Oracle’s Java software, a large portion of music streams on YouTube are misappropriated for the good of Google and Google alone—“Through YouTube, Google profits directly from verbatim copies of Amici’s own works. These copies are unauthorized, unlicensed, and severely under-monetized.”

A brief filed by Recording Industry Association of America, National Music Publishers Association, and the American Association of Independent Music makes clear that its “members depend on an appropriately balanced fair use doctrine that furthers the purposes of copyright law, including the rights to control the reproduction and distribution of copyrighted works, to create derivative works, and to license the creation of derivative works.”

Briefs were filed expressing similar concerns from a broad spectrum of the creative community, including journalists, book publishers, photographers, authors, and the motion picture industry. Google’s attempts to retroactively justify a clear act of infringement with novel theories of software copyright and fair use have alarmed nearly every segment of the artistic and creative community.

Another amicus brief from the News Media Alliance (over 2,000 news media organizations), explains how Google Search, Google News and other online platforms appropriate vast quantities of its members’ journalistic output, and reproduces it to displace the original creative content. They point out that, as journalists, they often sit on both sides of the “fair use” defense, but warn that they “cannot stand silent when entire digital industries are built, and technology companies seek to achieve and maintain dominance, by the overly aggressive assertion of fair use as Google does in this case.”

And USTelecom, the national trade association representing the nation’s broadband industry, including technology providers, innovators, suppliers, and manufacturers. USTelecom notes that its members are poised to invest $350 billion in their software-driven networks over the next several years, laying the foundation for 5G. Software interfaces are also important for network providers to “enable interoperability among technologies, networks, and devices,” and “while telecommunications providers must share access to their software interfaces, they also must retain their exclusive property rights in their implementation of these interfaces if they are to ensure network security and resiliency, protect their customers’ privacy, innovate and compete.”

We were pleased that some of the most prominent names in technology—who were contemporaneous witnesses to Google’s theft—have filed amicus briefs in support Oracle’s position, including Scott McNealy, the longtime CEO of Sun Microsystems, and Joe Tucci, the longtime CEO of EMC Corporation. Mr. Tucci states, “as the numbers and ever-increasing success show, the system is working. Accepting Google’s invitation to upend that system by eliminating copyright protection for creative and original computer software code would not make the system better—it would instead have sweeping and harmful effects throughout the software industry.”

Several of our amici note in their briefs that the Constitution includes copyright protection in Article I, Section 8. As Consumers’ Research explains in their brief, “to the Founders, copyrights were not just a way to encourage innovation, but also to protect people’s inherent rights in the fruits of their labor. Any conception of copyright that ignores the latter is both incomplete and inconsistent with the original understanding of the Copyright Clause.”

One of the key points Oracle makes in our brief to the Court is the clear Congressional intent and action to provide full copyright protection to software, and the longstanding refusal by Congress to create any distinctions between different types of software code (such as “interfaces”).

Several of our amici reinforce this fact, none less authoritative than the former Senate and House Judiciary Chairmen. Former Senators Orrin Hatch and Dennis DeConcini, and former Congressman Bob Goodlatte make it clear that Google’s invitation to the Court to carve out some ill-defined category of “interfaces” from the Copyright Act’s full protection of all software code is contrary to the intent of Congress and plain language of the statute. According to the former Chairmen, “[B]oth the text and history of the Copyright Act show that Congress accorded computer programs full copyright protection, with no carve-out for some undefined subset of software.”

Furthermore, the former Members state, it would be beyond the purview of the Court to respond to Google and its amici’s policy arguments in favor of creating new standards of copyrightability and fair use for different, loosely defined categories of software. “This Court should not undermine [Congress’s] legislative judgment … by creating the loopholes to copyrightability and fair use that Google requests.”

The Members further point out, “to the extent that Google has a different, less-protective vision for the federal copyright regime, it is ‘free to seek action from Congress.’ (quoting the Solicitor General). Thus far, Congress has not seen fit to take such action, notwithstanding its recent comprehensive review of the federal copyright laws, which directly examined the scope of copyright protection and technological innovation. This Court should not diminish copyright protections for computer programs where Congress, as is its constitutional prerogative, has chosen to refrain from doing so for four decades.”

The Members’ points are given further emphasis by the extremely important brief from Professor Arthur Miller, who was a Presidential appointee to the National Commission on New Technological Uses of Copyrighted Works (“CONTU”), where he served on the Software Subcommittee. Professor Miller forcefully rebuts Google’s contention that the Java code it copied should be denied protection either because it was so popular or because it was in some category of un-protectable software it refers to as “interfaces.”

Congress had good reason not to enact a popularity exception to copyright. As an initial matter, such an exception would lure the courts into a hopeless exercise in line-drawing: Just how popular must a work become before the creator is penalized with loss of protection?… Nor does calling the copied material an “interface” aid in the line-drawing exercise. Though that term “may seem precise * * * it really has no specific meaning in programming. Certainly, it has no meaning that has any relevance to copyright principles.” (citing his seminal Harvard Law Review article on software copyright). “Any limitation on the protection of ‘interfaces’ thus would be a limitation on the protection of much of the valuable expression in programs, and would invite plagiarists to label as an ‘interface’ whatever they have chosen to copy without permission.” Ibid. More importantly, a popularity exception would eviscerate the goal of the Copyright Act, which is to promote advancements. “The purpose of copyright is to create incentives for creative effort.” Sony v. Universal City Studios. But advance too far and create widely desired work, petitioner warns, and risk losing copyright protection altogether; anyone will be able to copy the previously protected material by claiming that doing so was “necessary.” That logic is head-scratching. “[P]romoting the unauthorized copying of interfaces penalizes the creative effort of the original designer, something that runs directly counter to the core purposes of copyright law because it may freeze or substantially impede human innovation and technological growth.” (citing Miller Harvard Law Review article).

This history of strong copyright protection is further explained in the brief by the Committee for Justice: “The framers of the U.S. Constitution designed that document to protect the right to property. It was understood that strong property rights were fundamental to freedom and prosperity. The Constitution’s Copyright Clause is a critical part of this project. The clause empowers Congress to enact laws to protect intellectual property, which was understood to be worthy of protection in the same sense and to the same degree that tangible property is. Congress has taken up the task by enacting a series of Copyright Acts that have steadily expanded the protection afforded intellectual property. This, in turn, has led to a robust and thriving market for intellectual property.”

Likewise, the American Conservative Union Foundation, Internet Accountability Project, and American Legislative Exchange Council all recount the long history of copyright protections, going back to the Constitution, and the importance of maintaining a system of strong intellectual property rights. They also weigh-in against Google’s fair use defense. 

Similarly the Hudson Institute makes the point that if the Supreme Court were to adopt Google’s breathtakingly expansive view of fair use, it would “provide a roadmap to foreign actors like China to circumvent U.S. and international copyright protection for computer code and other works. Such a roadmap, if adopted by this Court, will remove the brighter lines and greater clarity provided by the decision below, and would eliminate a significant tool for private and governmental enforcement of IP rights.”

In separate briefs, two large software companies, Synopsys and SAS Institute, explain how the use of software code and “interfaces” actually work in the real world. Synopsis explains that the purpose of its brief is “to challenge the notion, offered by Google and its amici, that the copying of someone else’s code is a mainstay of the computer programming world. It is simply not true that ‘everybody does it,’ and that software piracy allows for lawful innovative entrepreneurship, as Google suggests.

SAS takes head-on the absurdity of Google’s professed interest in “interoperability” as the pretense for its unlicensed use of Oracle’s code. “Google copied the software interfaces not because it wanted Android applications to interoperate with Java, but so it could attract Java programmers for Android to replace Java. ‘Unrebutted evidence’ showed ‘that Google specifically designed Android to be incompatible with the Java platform and not allow for interoperability with Java programs.’ (citing Fed. Circuit decision). No case has found fair use where the defendant copied to produce an incompatible product.”

SAS also provides a powerful rebuttal to Google’s request for the Court to create new judicial carve-out from the Copyright Act for software “interfaces.” “There are unlimited ways to write interfaces, and nothing justifies removing them from what the Copyright Act expressly protects. To the contrary, the user-friendly expressive choices Sun made became critical to Java’s success. The thousands of lines of Java declaring code and the organization Google copied are intricate, creative expression. … The creativity is undeniable. ‘Google’s own ‘Java guru’ conceded that there can be ‘creativity and artistry even in a single method declaration.’” (citing Fed. Circuit decision) SAS goes on to provide detailed examples of the creative expression in declaring code.

I’ll conclude with the powerful brief of the former Register of Copyrights, Ralph Oman.  Mr. Oman forcefully rebuts the “sky is falling” rhetoric of Google and its amici regarding copyrights and software.

Copyright protection has spurred greater creativity, competition, and technological advancement, fueling an unprecedented period of intellectual growth and one of America’s greatest economic sectors today—software development. While Congress is of course free to revisit the application of copyright to software if it believes changes to the current regime are warranted, there is no basis for this Court to assume that policymaking role here. Instead, this Court should give effect to Congress’s intent, as embodied in the 1976 Act and its subsequent amendments, that traditional copyright principles apply to software just as these principles apply to other works. Applying those principles to the record in this case, the Federal Circuit properly concluded that Google’s conceded copying of the APIs infringed Oracle’s copyrights. While the technology at issue may be novel, the result that such free riding is not allowed is as old as copyright law itself.

We are grateful for this diverse, influential group of more than 30 amici, which we are certain will provide important, valuable insight to the Court in its deliberations.

We know that many of them have spoken up despite Google’s campaign of intimidation, which makes us even more appreciative.

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Broad Coalition Files Supreme Court Briefs Supporting Oracle

Latest Oracle Press Releases - Wed, 02/19/2020 - 09:07
Press Release Broad Coalition Files Supreme Court Briefs Supporting Oracle Amici urge Court to reject Google’s attempt to weaken copyright protection in the United States

Redwood Shores, Calif.—Feb 19, 2020

A wide array of individuals and organizations from across technology, arts and culture, government, advocacy, and academia filed amicus briefs this week supporting Oracle in the Supreme Court. This diverse group is speaking out to defend copyright protection and to reject Google’s attempts to excuse its theft of more than 11,000 lines of Oracle’s original code.

Commenting on the briefs, Oracle General Counsel Dorian Daley said: “Google is attempting to rewrite the fundamental copyright protections that fuel innovation in this country. The amicus briefs make clear that to avoid significant consequences well beyond the software industry, Google’s self-serving arguments and attempts to rewrite long-settled law must be rejected.”

The fallacies in Google’s arguments, as well as additional context about the case are set forth in Executive Vice President Ken Glueck’s recent blog posts about the importance of copyright protection and the absence of support for Google’s position in the technology community.

Excerpts from the amicus briefs filed today upend Google’s claim that upholding the current ruling and existing law will crush innovation in the software industry. As the briefs demonstrate, that stance is not just inaccurate – the reverse is true.

Google wields a variety of weaponized copyright exceptions on top of rhetoric that is both deceptively public-spirited (letting Google win is “promoting innovation”) and ominous (impeding Google would “break the internet”). Google further seeks to justify these exceptions by trying to hide behind small players. It engages in astroturfing tactics to give the impression that it has more public support than it does.” (Songwriters Guild of America, pp. 16-17) (unless otherwise noted, all emphasis is added)

“[W]hat is good for Google is not synonymous with what is good for the public. […] In fact, a ruling for Google would be “promoting” software innovation only in that the purported “innovation” would be furthering Google’s private interest—i.e., using works without permission or a license fee.” (Songwriters Guild of America, p. 32)

No reasonable person would invest resources in creating an original work if another person could lawfully extract material portions of that work and incorporate them into a marketplace replacement.” (Internet Accountability Project, p. 4)

Oracle’s code was undoubtedly creative and copyright protected.

“Google has appointed itself the world’s ‘organize[r]’ of other people’s information…and in this case it copied verbatim substantial amounts of Oracle’s software to do so.” (Internet Accountability Project, p. 1)

“[M]ore than enough creative choices were made by [Oracle’s programmers] in creating the 7,000 lines of declaring code…to satisfy the copyright requirements.” (Interdisciplinary Research Team on Programmer Creativity, p. 19)

“[I]t is clear that there were thousands of different ways [that Oracle’s] APIs could have been written when they were created . . . [and] that they are protected from copying by the Copyright Act.” (Interdisciplinary Research Team on Programmer Creativity, pp. 19-20)

Google could have licensed Oracle’s software but chose to copy it instead.

The inconvenience of not copying does not excuse copying.” (American Conservative Union, p. 14)

“Google and its amici seek to establish a rule of general applicability in the software industry that will justify future unauthorized copying whenever it saves the copier time and money.” (American Conservative Union, p. 18)

“Google asserts [that its] choice to copy proves that Google had no choice other than to copy. Yet Google’s assertion that it “reused” the declarations “only because it had no other choice,” finds no support in the record. The obvious other choice was licensing.” (American Conservative Union, p. 12)

“Through YouTube, Google profits directly from verbatim copies of Amici’s own works. These copies are often unauthorized, unlicensed, and severely undermonetized.” (Songwriters Guild of America, p. 26)

The argument that Google’s use was protected by exceptions to the copyright laws falls flat.

“This brazen commercial use in competition with [Oracle] and the indisputable harm to the market doom [Google’s] fair use claim.” (Copyright Thought Leaders, p. 21)

“Google’s verbatim copying of Oracle’s code for use in the Android platform had a measurable negative impact on Oracle’s bottom line. Under existing law…such use of another’s work is categorically not ‘fair.’” (Internet Accountability Project, p. 3)

“[Google] has done nothing that qualifies as transformative. [Google] engaged in verbatim copying to use the copied code in commercial competition with others who either licensed the works or avoided infringement by applying their own creativity to write different code to perform those functions.” (Copyright Thought Leaders, p. 20)

Google and many of its amici seek to upend [the] well-ordered system of private property rights in software through either an unworkably complex, nearly metaphysical, interpretation of copyrightability of software, or a broad “fair use” exemption, both based on some conjured up “special status” as players in the software industry.” (American Conservative Union, p. 4)

This case threatens copyright protection across the board.

Copyright is, in fact, of existential importance to…creators, who would be utterly lacking in market power and the ability to earn their livings without it.” (Songwriters Guild of America, p. 3)

“It is not empty rhetoric to say that without the statutory and constitutional protections of copyright, professional creators could not earn their livings and simply would not produce new works, and the world would be poorer for it. The reason is simple but profound: copyright protection allows for a vibrant creative environment in which artists can predictably recover the gains of their creative labors.” (Songwriters Guild of America, p. 5)

Contact Info Deborah Hellinger
+1 212-508-7935
deborah.hellinger@oracle.com About Oracle

The Oracle Cloud offers a complete suite of integrated applications for Sales, Service, Marketing, Human Resources, Finance, Supply Chain and Manufacturing, plus Highly Automated and Secure Generation 2 Infrastructure featuring the Oracle Autonomous Database. For more information about Oracle (NYSE: ORCL), please visit us at www.oracle.com.


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SQL Bits 2020 is happening in London: join us March 31 to April 4

Latest Microsoft Data Platform News - Wed, 02/19/2020 - 09:00

It's that time of the year when the Microsoft Azure Data engineering team is getting ready to participate at SQL Bits 2020. Excitement for this year's show is everywhere, as SQL Bits provides us with a unique opportunity to learn, connect, and share with you, our SQL Server community.

SQL Bits is the largest gathering of SQL Server professionals in Europe and this year it is returning to London at the massive ExCel exhibition center. We are excited to meet our customers, partners, and community members. With almost 60 breakout sessions, 5 full-day pre-conferences, and a keynote that is packed with great demos and all the new exciting things in Azure data, there is something for everyone.

For those attending this year, we've put together a quick guide below on some of the Data and AI sessions you can look forward to. Can't wait until SQL Bits? Check out the conference sessions to get a taste of all the exciting stuff you don't want to miss at SQL Bits 2020.

SQL Bits is also running a promotion right now to share their love for data. Save 10 percent on your registration when you use the code: MSDATA10.

Register NowSQL Bits 2020 sessions not to miss

Keynote: Join Gayle Sheppard, CVP, Azure Data for a keynote presentation on the journey of SQL Server from edge to cloud, packed with exciting demos and customer stories.

SQL Server 2019: The modern data platform: Bob Ward has also authored a new book "SQL Server 2019 revealed." In this session, he will give you the highlights, including the most exciting new features in SQL Server 2019 like Data virtualization, Big Data Clusters, Accelerated Database recovery, and more.

Sandboxing SQL Server 2019 Big Data Clusters: Big Data Clusters combine the power of SQL Server, Apache Spark, and HDFS to gain intelligence over all your data. Join James Rowland Jones to learn about the most common use cases for Big Data Clusters.

Modern Database design: Connor Cunningham will talk about improving the performance and scale of the databases in real-world scenarios using technologies including columnstore, in-memory tables, Azure SQL Database Hyperscale, Always On Availability Groups, and readable secondaries.

Azure Data Services on Azure Arc: Come join Vin Yu to learn more about the newly launched hybrid service Azure Arc, which lets your run Azure Data Services anywhere. Vin will be deploying data services in hybrid and multi-cloud environments – including AWS, GCP and on-premises – and he will show you some of the management capabilities of Azure Arc such as elastic scale and automatic patching.

Azure Synapse Analytics: Ever since the announcement of Azure Synapse Analytics, we have seen tremendous community excitement around this new cloud data warehouse service. Join Michael Rys to learn how Azure Synapse brings together big data and data warehousing through new technology and a unified development experience.

Azure Data Studio features in 20 minutes: If you want a quick refresher on all the cool new features in Azure Data Studio, then don't miss the session from Vicky Harp, where she will touch on all the features in Azure Data Studio in a fast introduction to what is sure to be one of your favorite new data administration and data development tools.

10 DBA tasks for Azure SQL: If you are a Cloud DBA, or are in the journey of migrating your on-prem databases to cloud, then check out this session from Alain Dormehl and Rie Irish on the 10 most common DBA tasks for Azure SQL and how they differ from on prem DBA tasks.

Better, Best, Hyperscale: The last database you will ever need in the cloud: Join Alain Dormehl, Davide Mauri, and Denzil Ribeiro to learn how Hyperscale can enable you to innovate with nearly limitless storage in a future-proof, world class, fully managed database.

Microsoft Learn will also be present at SQLBits 2020, showcasing the complete offering of training and certifications available to the Data & AI professionals. Attendees will get the scoop on the newest certifications in Microsoft’s portfolio and will also have the chance to be part of the beta exam experience.

After the roaring success of SQL Bits 2019, we are excited ready for yet another packed SQL Bits 2020 In London. We can't wait to meet you there and celebrate!

The post SQL Bits 2020 is happening in London: join us March 31 to April 4 appeared first on SQL Server Blog.

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Oracle Cloud Applications Achieves FedRAMP Moderate Authorization

Latest Oracle Press Releases - Wed, 02/19/2020 - 06:00
Press Release Oracle Cloud Applications Achieves FedRAMP Moderate Authorization New authorization marks key milestone for the Federal Government, extending agency access to the suite of Oracle Cloud Applications covering ERP, HCM, and CX

Redwood Shores, Calif.—Feb 19, 2020

Oracle today announced that Oracle Cloud Applications has achieved FedRAMP Moderate Authorization. FedRAMP is a government-wide program that provides a standardized approach to security assessment, authorization, and continuous monitoring for cloud products and services. With this new authorization, U.S. Federal Government customers can benefit from Oracle’s complete and integrated suite of cloud applications for finance, human resources, supply chain, and customer experience.

To outpace accelerating change in technology, government agencies need to break down data silos, embrace the latest innovations, and improve digital experiences, collaboration, and service. Built on Oracle’s industry-leading cloud platform and infrastructure, Oracle Cloud Applications enables customers to benefit from best-in-class security, high-end scalability, and performance, in addition to strong integration capabilities.

“FedRAMP Authorization for Oracle Cloud Applications is a critical step in meeting the growing demands and compliance requirements of our public sector customers,” said Tamara Greenspan, group vice president, Oracle Public Sector. “By achieving this authorization, we are able to help the Federal Government tap into our complete and innovative cloud applications suite to not just keep pace, but stay ahead of the evolving business and technology landscape.”

Oracle has been a long-standing strategic technology partner of the U.S. Federal Government. In fact, a component of the U.S. Intelligence Community was the first customer to use Oracle’s flagship database software 35 years ago. Today, more than 500 government organizations take advantage of the superior performance of Oracle’s industry-leading technologies.

Contact Info Celina Bertallee
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Is tech supporting Google? It sure doesn’t appear so.

Latest Oracle Press Releases - Mon, 02/17/2020 - 06:00
Blog Is tech supporting Google? It sure doesn’t appear so.

Ken Glueck, Executive Vice President, Oracle—Feb 17, 2020

There is a lot of chatter that “tech” is supportive of Google’s position in Google v. Oracle. That was certainly the impression Google tried to spin when its Amici filed briefs with the Court last month. But a closer inspection of Google’s Amici makes clear that the technology community is not supporting Google’s position. Not even slightly.

As we stated in our prior blog post, the issues of copyrightability of Java software have been settled since the Federal Circuit Decision in 2014. It is Google that is urging the Supreme Court to draw some new magic line between some code that is copyrightable and other code that isn’t. Google tries to create a sense of urgency where none exists and controversy where there is actually agreement. And a close read of Google’s Amicus briefs reveals that Google appears to be virtually alone—at least among the technology community—in seeking to weaken copyright for software.

We also highlighted in our prior blog that Google has not provided a single real-world example of innovation that has suffered due to the pendency of this case. In the intervening six years since 2014—there is zero contemporaneous evidence where anyone has identified the Federal Circuit Decision as a barrier or impediment to innovation. Which is exactly why Google is receiving such scant support from tech.

When you look at the Amici filing on Google’s behalf what’s noteworthy is not who did file, but who didn’t. If you take a quick look at the top 100 technology companies, exactly two of them filed briefs on Google’s behalf. If you look at the leading Silicon Valley-based companies, exactly none of them filed briefs on Google’s behalf. And among the major technology trade associations, same answer. Not one.

This becomes much more significant when you understand just how hard Google tried to get the technology industry’s support… but it was not forthcoming.

The impression that tech is supporting Google comes primarily from the fact that Microsoft and IBM submitted Amicus briefs on Google’s behalf. We suppose one could argue that the Computer and Communications Industry Association (CCIA) also purportedly represents tech, but that’s not entirely correct (more on them later).

We should start by saying that Microsoft and IBM are entitled to their opinions and Microsoft and IBM are both great partners and strong competitors of Oracle. But the fact is both Microsoft and IBM have commercial interests in this litigation that require a little context and perspective.

We address Microsoft, IBM and CCIA, in turn.

Let’s start with Microsoft, the original sinner.

First, let’s go back to U.S. v. Microsoft. We would encourage everyone to take a look at the Findings of Fact in U.S. v. Microsoft, in particular Microsoft’s anticompetitive conduct against Sun’s Java. Long before Google broke Java’s interoperability, Microsoft did exactly the same thing. Java’s “write once, run anywhere” innovation was antithetical to maintaining Microsoft’s barrier of entry to its Windows monopoly. So, it made just enough changes and created just enough dependencies that applications written in Sun-compliant Java wouldn’t run on Windows. In other words, they broke Java’s interoperability. Sound familiar?

Second, Microsoft actually filed an Amicus brief on Oracle’s side of this matter in 2013 before the Federal Circuit. Likewise, Microsoft’s primary trade association, the Business Software Alliance also supported Oracle’s side before the Federal Circuit on both copyrightability and on fair use.

It is essential to read Microsoft’s new brief. How does it reconcile its previous position with its new position? It doesn’t. On the critical question of the copyrightability of “interfaces” (which Microsoft previously supported) Microsoft is now completely silent. Instead, its new brief focusses exclusively on fair use. So, does Microsoft support Google’s position of picking and choosing which lines of software code are copyrightable and which are not? The entirety of the public record is clear that Microsoft is actually on Oracle’s side of this critical component of the case.

Third, let’s not forget that Microsoft itself was once among Google’s strongest antagonists. Remember Microsoft’s 2013 “Scroogled” ad campaign against Google? As Ad Age put it, “the commercials are hard hitting, beating up Google for everything from invasive ads in Gmail to sharing data with app developers to placing paid results on its search page. Google, the ads claim, is "Scroogling" its users, or exploiting their private data to maximize advertising profits.”

Then came 2015 and the commercial agreement between Microsoft and Google to partner on, among other things, intellectual property. What changed Microsoft’s stance in this litigation was that commercial agreement. Microsoft’s position is as principled as that.

Now to IBM, before there was Codebreak (Houston Astros) there was Jailbreak.

Let’s start with the fact that IBM was silent both times Oracle v. Google was argued at the Federal Circuit. No Amicus Brief from IBM whatsoever on either copyrightability or fair use. It’s not as if IBM wasn’t paying attention or lacked the resources to participate. Moreover, IBM is an active member of the Business Software Alliance which, as we stated, filed a brief on both copyrightability and fair use in favor or Oracle’s position at the Federal Circuit. No objection from IBM.

Next, let’s not forget that IBM has been working to control Java since Java’s inception. In fact, as reported in the New York Times, IBM had negotiated a deal to buy Sun for $7 billion which would, among other things, “give I.B.M. more strength in competing against Oracle” and of course would have given them control of Java.

In the end, that transaction didn’t quite work out for IBM because Oracle acquired Sun, which Sun concluded would be a far better fit.

Third, IBM spent years trying to undermine Sun’s stewardship of Java in a scheme known in the industry as “Jailbreak.” Oracle knows well IBM’s efforts here because we were part of the community. The “Jailbreak” initiative as IBM named it was meant to pressure Sun and its leadership into changing the licensing regime for Java to something which would give IBM more control and the ability to “fork” Java for its own commercial purposes.

Ultimately IBM abandoned Jailbreak because it fully understood that creating a fork of Java would require a license from Sun. We were there at the time. Unlike Google, IBM never argued that some code was copyrightable but other code was not. Unlike Google, IBM never thought copying Java was permissible under fair use. IBM knew full well it needed a license and as a result it abandoned the Jailbreak effort.

So, after sitting silent before the Courts for a decade, with a clear understanding of what is permissible and what isn’t, why does IBM all of a sudden decide this case “threatens to undermine and adversely impact a core aspect of IBM’s… business” when it hadn’t at any point in the past?

Because IBM just completed its blockbuster $34 billion bet-the-company acquisition of Red Hat, and is simply running out of time. The stakes are now higher and IBM really wants its own, non-compatible version of Java for its own commercial purposes. After failing to acquire Sun or to Jailbreak Java, IBM is now turning to the Supreme Court in a Hail Mary attempt to get the Court to give it the control it couldn’t achieve in the market.

Again, IBM is entitled to its opinion. But IBM has a long history with Java, and we shouldn’t confuse IBM’s commercial and competitive interests with a new-found interest in the proper balancing of copyright protection for software.

Lastly, let’s address CCIA.

It is hardly a secret that CCIA is completely beholden to Google, financially and otherwise. Now, we don’t want to throw stones, but in a town where “pay to play” is commonplace, CCIA really sets a whole new standard for transactional advocacy. CCIA was founded on the principles of competition and interoperability and was one of the main protagonists in U.S. v. Microsoft, and before that AT&T and IBM. So how does CCIA go from fighting for interoperability to defending Google who admittedly broke interoperability with Java?

This author knows a little bit about the governance of CCIA because Oracle used to support CCIA and I sat on its Board of Directors during this formative about-face. The first step was Microsoft simply wrote CCIA’s CEO a check for $10 million (for his personal benefit, not the organization). Then Google stepped in and is now one of CCIA’s primary financial backers.

On the substance, CCIA’s argument essentially boils down to the point that the U.S. legal framework for IP should be more like Europe. If we care about innovation, we can’t imagine why anyone would trade the U.S. system, the global leader in technology, for Europe’s system, the global laggard? But CCIA is entitled to its views.

With that background, is it really credible to say that when 98 of the top 100 technology companies are absent; when Microsoft and IBM have substantial parochial agendas; and when nearly all of the major technology advocacy groups are silent, that “tech” is on Google’s side?

The answer is of course no. There is no outpouring of support for Google’s views.

And the reason is that despite the sky is falling rhetoric, this case is fact bound. Google stole and copied verbatim more than 11,000 lines of software code. It is now trying to define its’ copying out of the Copyright Act or alternatively claim fair use.

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