In a surprise, the Supreme Court ruled for Google and Google v. Oracle. This was a welcome development for basically everyone who doesn’t want to extract rents for interoperable software. Justice Breyer framed his opinion around the history of the Android phone operating system, especially the idea that many programmers invested substantial time into learning what would be an open world to make a series of calls, Breyer then provides a lucid description of how APIs work. The heart of the case is that Oracle then bought Sun, the creator of Java, and then sued Google. At first the case was about software patents (which in 2010 were sort of a thing, and are not as much in a post-2015 world), which were dismissed which then became a copyright trial where the juries found for Google. The majority opinion seriously considers, in the context of computer software, which substantial means, in a historical context, the value of Oracle’s acquisition, and the real market of interoperability for software. At issue in the case are rival conceptions of the world, one that considers a broad commons of creative industry development and the other that sees the romantic creative that is to be rewarded above all else.

Fences.

Enclosure

The most important reason why Google needed to win is called enclosure, which refers to the process where a common good is segmented with fences or other structures so that a landlord might extract rents. Instead of folks using the commons as they need, enclosure allows owners to separate labor and material. The owner of the now fenced lands maintained by the grazing activities of the shepherds. You may have heard of the academic term “neoliberalism” enclosure is a key aspect of that way of thinking, especially when combined with a single minded focus on prudence (maximizing cash) is the only value of exchange. The enclosure produces a kind of labor free means of value production which then deforms those values. Diedre McCloskey has argued, in defense of capitalism and against neoliberalism, that private property relationships are beneficial in a world with robust humane values. My intention is not necessairly to argue this point but to say that the idea of retroactively declariign ownership and disrupting existing webs of intellectual and market relationships is nearly impossible to defend, especially in the context of Sun developing value for their product by participating in the commons only for a new feudal Lord to waltz in and build a fence.

In their most advanced form, these neoliberal enterprises operate along post-Fordist organizational principals. Fordism supposed that a regime of mechanized work by a single firm under time based pay could produce superior gains to the supervised work of Taylorism. Under Tayorism, a single worker would be observed by a single manager, who could coach them to produce more than they would working on a piece rate. Fordism supposes these means of organization can be expanded to the construct of a factory where less management is needed. Coase established in his research on the firm that vertical integration could produce a larger, better company (because contracts are hard to interpret and enforce), thus giving birth to multi-dimensional conglomerates. Post-Fordism is the next step where the firm finds ways to not own other firms but to exist in the web of contracts alone. You don’t own the factory, you rent it maybe. Instead of employing people you hire “contractors” who are 1099 employees. As the model drifts further, the number of employees decreases and firms come to depend on intellectual property rights to require that others pay them rents in order to do their businesses. In the most parasitic models, even administrative labor is outsourced to call centers, and threats replace actual litigation. Young people love jokes and memes about reaching “my final form” meaning an evolved character in a cartoon that is powerful and true to motive, for capitalism this means a firm that exists only as a series of threats to have rents paid for abstract rights to access immaterial markets.

Justice Breyer then engages the traditional four part fair use test in a world where the history of the market and the formation of the commons are taken seriously. Nature of the work: all that is not un-protectable, which becomes very narrow in this case, general concepts for organization are not copyrightable. No one would accept a copyright claim on the organization of a book into chapters, likewise general organizational models for data are not protected. Purpose and character: the copies were made to allow interoperability and to produce a positive feedback loop among software products. Amount: this returns to the question of nature which parses what can be protected in the first place. Breyer inverts the question, it is not what they copied but that which they did not copy which speaks to the question of volume. Could Google have used less? Perhaps, but for the most part the copy is aligned with what is emerging as fair use. They copied what they needed to unlock “creative energies.” Notice that Breyer is already framing the creation of new software as creative in itself, not derivative. Market effect: this is where Breyer is at his historical best dealing both with the testimony of Sun’s CEO and the ways that smartphone market was simply beyond Sun, the facts speak to a world where this use of an element of Java made it valuable, a copy that retroactively values an original.

Breyer concludes his fair use analysis with a broad conception of the market:

The uncertain nature of Sun’s ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor — market effects — also weighs in favor of fair use.

The impact to be considered as economic is broad and public. Oracle’s interest in buying properties to then destroy markets should not be protected. Imagine every little API or reference, credited or not in a library that would suddenly become access points for vast wealth… Technology as you know it would cease to exist.

Best, Brightest

The Imagination of a Billionaire

Justice Thomas dissent (joined by Alito) begins with an incredibly telling point:

Oracle spent years developing a programming library that successfully attracted software developers, thus enhancing the value of Oracle’s products.

If you have read the blog to this point you know that Oracle didn’t develop Java, Sun did, and that they purchased it, then asserted one theory of liability which failed, then inventing a new approach to software copyright. Once Justice Thomas read from the perspective of Oracle’s intentions and Oracle’s market, rather than through the history of Java, his opinion would be clear and opposite. The horizon is the imagination of Oracle, the damages and benefits only through the powerful purchasing actor, balancing tests all utterly irrelevant.

The supposition that Oracle purchased Sun so they might license it to form new smartphone ecosystems is counter factual at best. No one in 2010 would have seen the Apple-Android duopoly being disrupted, take for example the Microsoft Kin, a phone that was promised to finally disrupt this market. At the time, the Kin was a joke. Everyone knew it, every student in my advertising class that summer surely did, apparently the CEO of Oracle did not, for Justice Thomas, only the limited imagination of a billionaire is to be considered, not the actual market conditions or what was covered in trade publications at that time.

The snow plow that proceeds from the decision to elide Oracle with Sun to even seeing all media as films, repeatedly invoking cinema, as if Google accessing an API was the equivalent of adapting a screen play, written by Oracle, was what was truly at issue. Justice Breyer headed off these arguments at the pass by arguing that the descriptive functions of the code were a mode of organization, which itself can not be protected. The word “organization” does not even appear in the dissent. The underlying specifics of how we might evaluate all the kinds of media that exist are lost in the dissent, the only thing that matters is the counterfactual world of 2005 that Oracle would dream into existence.

Where the Market is Now?

I’ll say the unpopular thing: android is a dying ecosystem. Contrary to predictions from a decade ago, Apple is very much alive, and on a global level there is a clear duopoly of Samsung and Apple who are lock at roughly a third of the market each. Much of the remaining market is going to fragment as the Harmony operating system rolls out. The world of apps is dead. Again, flashback to 2011 when every university administrator wanted classes and derbies, hackathons, and whatever to have their students make the “next big app.” Android tablets have never really been competitive and that market space is now really about Microsoft laptops trying to go heads up with Apple.

What matters in this case is that six justices agreed to a vision of fair use that actually takes contemporary technology into account and balances the interests at play. This really is an optimistic note.

Associate Professor of Social Media, Oregon State: These are my opinions, not theirs. Read my book: Selling Social Media (Bloomsbury Academic), 2018.

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