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Why Creators Should Care About Google v. Oracle in the Supreme Court–@artistrights Watch

November 26, 2019 Comments off

There’s a case shaping up in the U.S. Supreme Court that I haven’t paid too much attention to–but suddenly realized it’s something we should all care about because it could set precedent for fair use cases for decades to come:  Google v. Oracle.

[MTP readers will remember the Oracle case because Judge William Alsop required the parties (provoked by Google shills) to file with the Court a list of the then-current “advocacy” groups Google paid that were also engaged in commentary about the case to affect public opinion.  We styled this filing the “Google Shill List” and it has been a useful resource that includes many of the same amici in the current SCOTUS appeal such as EFF, Jonathan Band, Public Knowledge, Engine Advocacy, CCIA, and so on to include the cozy and dedicated group of likeminded people dancing to Google’s tune.]

On the surface, the case is about the Java software code and certain Java libraries developed by Sun Microsystems, later acquired by Oracle.  But digging a little deeper it is also about Google’s obsession with “permissionless innovation”, Newspeak for “theft.”  And when I say “Google”, I don’t really mean Google as a company.  I mean the insiders.  This because of Google’s governance and dual class structure that gives Larry Page, Sergei Brin and Eric Schmidt control over the company and the ability to waste the shareholders money settling claims for their bad behavior and terrible management (such as $500 million for violating the Controlled Substances Act and billions in fines for competition law violations around the world)–and now this Oracle case.

So we will refer to “Google” but really we’re talking about the Google ruling class with 10:1 voting power: Larry, Sergei and Eric.

How did Google get sued by Oracle and not Sun?  According to Google’s SCOTUS brief (at 3):

Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.

Let’s not just blow past that statement.  (First of all, it’s not really true.)  That one sounds like Google would like to cut back the ability of a copyright owner to decide when and where to enforce their rights, including a subsequent purchaser of copyrights.  Because Sun, you see, were behaving like right thinking boys and girls, and then the evil ones came along to challenge Google the Sun God…or something like that.  Or said another way, 2+2=5.  And don’t you forget it.

You can see that Google would like to push that angle.

If, for example, a music publisher lacking the means to sue Google for infringing their catalog was later acquired by someone with the means to do.  That buyer then sues Google for those pre-acquisition infringements.  A ruling for Google in the current SCOTUS appeal could easily send a message that protects Google’s massive infringement through search, YouTube and God knows what else.

But at the heart of the Google infringement of Oracle’s copyrights is the “verbatim” copying of certain Java code into the Java-based Android systems.  As the amicus brief by the United States  tells us, one of the questions presented to SCOTUS is:

Whether the court of appeals correctly held that no reasonable jury could find that petitioner’s verbatim copying of respondent’s original computer code into a competing commercial product was fair use….

[Google] created much of the Android library from scratch. For 37 of the 168 packages included in the Android library, however, [Google] copied the Java declaring code verbatim, while writing its own implementing code.

As we have joked for years, Google thinks a fair use is when a YouTube user makes a verbatim copy of a television program or concert and posts it on YouTube in a different file format–you know, transformative.  Which is, of course, fair use.  Or was it a parody, I forget.

The brief by the United States disagrees, and so do I.

So let’s be clear:  This case is about Google getting away with verbatim copying that they then commercially exploit as only Google can.  And then scream fair use.

You have to wonder why SCOTUS took this case.  I suspect it has something to do with this absurd “transformative use” theme we have seen Google use again and again and again.

 

Where are the rest of the shills?

September 2, 2012 Comments off

As I noted on the Huffington Post, Judge William Alsup asked Google and Oracle to come clean about paid commentators about his case.  When reading Oracle’s and Google’s responses to Judge Alsup’s order, I noticed one group was missing from the responses, particularly the Google response.  The faceless hoard who are paid–directly or indirectly–to comment on the commentators.

You’ve heard about them–“rapid response teams“.  These are real people who react on social media to negative information about a product or a candidate or even an idea, usually when one of their number runs across a negative story or they are alerted by ever more sophisticated reputational monitoring software.  They may post comments on Facebook, news stories or blogs, Tweet, or even just “Like”.  And guess who is in a position to track this kind of information more effectively than anyone else?  After all, the best way to find illegal uses of your music is to set up a Google Alert for yourself so you can take advantage of the information Google already has about who is ripping you off.

These comments are often designed to influence readers of a particular blog and are sometimes a rather bald attempt to persuade or to lead the discussion in a specific direction.  There are some tech bloggers who have a reputation of posting a slew of anonymous comments designed to get the real discussion about their post going in a particular direction.  In fact, one of the Reddit founders was quoted as acknowledging that at least in the beginning, Reddit was seeded with a signficant number of “sock puppet” accounts so that real users felt like they weren’t the first ones commenting.

A more relevant example is the political or policy troll, someone who is actually working for the opposing camp who posts comments supporting their undisclosed employer (either anonymously or under an avatar or sock puppet account):

Hazelbaker served as the campaign spokeswoman for the 2006 New Jersey Senate campaign of Republican Thomas Kean Jr., who was easily defeated by Democrat Robert Menendez.

New Jersey grad student Juan Melli, founder of the blog Blue Jersey, noticed that between July and September one IP address had registered four different accounts, each one claiming to be a Democrat but posting multiple anti-Menendez comments using pseudonyms like usedtobeblue and cleanupnj. This IP address had also been used to send emails signed by Hazelbaker to other correspondents, according to the New York Times.

This gives you some idea of the lengths to which these people will go–and remember, Hazelbecker got caught.  According to the New York Times coverage of the incident:

[T]he liberal Democratic hosts of BlueJersey.com, the Web log where such comments were posted, smelled something fishy about the postings, and said they traced them to a computer inside the campaign headquarters of Mr. Menendez’s Republican opponent, Thomas H. Kean Jr.

They suspect the person behind the postings, which have appeared on the site regularly since July, is Mr. Kean’s campaign spokeswoman, Jill Hazelbaker. Ms. Hazelbaker called the accusations “nonsense,” and said neither she nor anyone else she knows of in the office had anything to do with the postings. “I’ve never e-mailed them nor posted on the Web site,” she said on Wednesday. “It’s a blog. You can’t believe what’s posted on blogs.” She declined to make Mr. Kean available to discuss the matter.

The Kean campaign’s technical adviser said that the Internet protocol, or I.P., address that linked the posts to the Kean headquarters was an old one, “from over a month ago.” But an e-mail message Ms. Hazelbaker sent to a reporter on Wednesday shares the same I.P. address.

And of course what makes this story the more interesting is that Ms. Hazelbecker is currently the Director of Corporate Communications and Public Affairs at Google.  And her public bio at Linked In doesn’t mention anything about Mr. Kean’s campaign in New Jersey.

Is employing these anonymous commenters, these “trolls”, an effective form of public relations and public messaging?  Apparently so, as the practice certainly is pervasive and persistent.  Note that the President of the United States seems to think so.  The practice also requires human intervention–machines are not yet able to do much once they find the offending story.  Those humans have names and frequently are paid, or already are employed by the company they are advocating for in comments (as Ms. Hazelbecker was employed by the Kean campaign).  The paid ones seem to fit squarely inside of Judge Alsup’s order.

So this leaves the question:  Did Google and Oracle properly reply to Judge Alsup’s order if they did not mention engaging these trolls?  And did they think they were fooling Judge Alsup?

Dan Farber’s reporting would lead me to think not so much:

Mastery of the courtroom wasn’t all that the 67-year-old Alsup brought to the trial. He also demonstrated mastery of the complicated subject matter, more than enough to keep the army of lawyers from both sides and the witnesses on their toes….In one episode, Oracle’s star lawyer, David Boies…was arguing that Google copied the nine lines of rangeCheck code to accelerate development to gain faster entry into the mobile phone market.

Alsup told Boies, “I have done, and still do, a significant amount of programming in other languages. I’ve written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There’s no way you could say that was speeding them along to the marketplace. You’re one of the best lawyers in America –how could you even make that kind of argument?”

Want to try that again, kids?

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