Theft, Bloomberg, David Westin discussed on Balance of Power

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Bloomberg business slash balance of power continues once again here's your host of David Westin thanks so much Charlie pellets from the interactive brokers studio this is balance of power on Bloomberg radio when is fair use under copyright law really outright theft that's what leads one of the questions the Supreme Court is taking up in a case where Google used eleven thousand five hundred lines of code in an oracle application programming interface or API to help it build its android software to take us to the case in the larger prince was a steak we welcome now John thorn partner at the law firm of Kellogg Hansen Todd Fargo in Frederick and outside general counsel to the internet accountability project so thank you for being with us because I'm a lawyer but I sure not cover lower I've already I know over simplify the case because I think actually was predecessor companies it was some and then it was injury before was bought by Google but what is at stake at this in this case David you described it perfectly the what steak is is it okay in the new technological environment of software to take a short cut by copying other peoples software code if that's okay then then companies like oracle that build their own products will be disadvantaged compared to other companies like Google the just take what other people have built take it down for me is there any question but that oracle or its predecessor committee sent had proper copyright protection on the code that was involved is there any doubt that they could they they was copy righted properly I'm one of the questions the case is whether software code can be copyrighted but that's a settled issue so that that really should not be much of a dispute the the interesting question is whether Google's copying some of oracle's code for convenience is fair is it a fair use because in some cases a little bit of copying that doesn't harm the original is is allowed to do it makes for progress and Google says that you can make a lot of progress if it copies substantial portion to help displaced with oracle built well it does that Levin has a five hundred number if it in fact is accurate is that relevant then because that doesn't sound like a little bit ago well it's a lot of code but the the the key thing and this is based on a on the very first decision authorizing fair use in the U. S. just a story of the Supreme Court sitting as a district judge very first fair use decision the key thing is and how many pages are lines you've copied but what's the effect of the copying of the original work if you if you displace sales for the original that's not fair and that's what happened here now this was made available as I understand it to people through a so called API people get access to it why was it made available to people was made available under license so with for some uses with sun and and which became oracle allowed allowed the code to be used and and that was a way to get it out there and get people familiar with it for other kinds of uses you had to pay money for it and and Google was negotiating a license is that we didn't want to pay money apple by contrast and Microsoft by contrast didn't want take a license either but they they built their own code so apple wrote its own programs Microsoft road it's on program Google having read its own written its own program was unable to license it to to Google so three three companies independently developed a single several obstacles or cut off I'll take with oracle scuttled wild instead of calling it copying the color reviews honest reviews or hold it and as I understand it there were some mobile phone manufacturers like Nokia things who actually paid license fees and Eric Schmidt up have a Google actually negotiated a license you substantial one right but then walked away from it that's correct so the Supreme Court has taken this case and it's going to be a tough one I think this record because the record doesn't usually deal with technical coding issues so much the Solicitor General urged the court not to take it to court took it over the objections was wrote that's not typical and and this was relentless and filed the merits brief saying that what Google has done is is not fair again the the really old precedent is if you copy enough of an original work to the displaced sales of the original that's not fair Google has a new argument which is they wanna promote competition they want to promote competition against oracle by taking what oracle did they don't cite any anti trust cases but there isn't any trust case in the neighborhood but justice Scalia he's called Franco which is about lines of telephone service rather than lines of software code and in in in a really trust case justice Scalia said you don't promote competition by just taking the original and and turning it over to rivals in that case it was at a discount here Google wants it for free it's not a competition remedy just to share something that somebody bill because you discourage people building in the first place you discourage people like apple and Microsoft that want to build competing products if you could take something you won't build your own and the goal of of copyright laws to motivate people to make independent investments and create new works does this get the court into sort of a form of industrial policy sort of picking winners and losers or deciding how much innovation we want to suppress one urge protection of property the law we want I don't think so I think it's I think it's a matter of following settled principles under old copyright decisions like justice stories or analogous antitrust cases like justice Scalia's where do it gives substantial verbatim copying is not allowed if you're displacing the sales of the original it's so it's kind of an easy principle to follow what it calls the constitutional mandate of let's promote innovation promote people writing their own stuff rather than stealing from one another it's Google loses this in the Supreme Court I assume they're going to have to license them going backwards in time who calculates the license fee I don't know if it's a judge or jury question so I don't know the answer but I assume it'll be a substantial license fee given the popularity of of what they built by by stealing oracle's code an extraordinary extraordinary case really glad to have you with us because you understand the stuff in a way that I certainly don't as John thorn of Kellogg Hansen.

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