Google’s Argument On Monopoly Power Is The Epitome Of Hypocrisy

On January 6, 2020, America witnessed the latest twist in the interminable copyright saga of Google v. Oracle. Over a decade in the making, the Supreme Court agreed in mid-November to resolve the lawsuit once and for all. But only recently did Google submit ^[1] its Brief for the Petitioner to the court. In the 71-page brief, Google marshaled its best arguments in an attempt to convince the Justices to rule in its favor. But in reality, the tech giant only succeeded in demonstrating its profound lack of self-awareness.

The case centers around 11,500 lines of code ^[2] and more than 37 APIs (software interfaces) that Google copied from Oracle’s Java program to use in its Android phones — but only after licensing negotiations between the two companies broke down. After Oracle discovered the unauthorized replication from this party that was once interested in licensing Java, it sued the search engine company for an astonishing $8.8 billion ^[3]. In its defense, Google maintains that its actions constituted fair use — an exception to copyright — and that no company should have plenary power over the declarative code, even within its own proprietary program.

Specifically, Google’s SCOTUS brief stated ^[4], “[A]n attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.”

Essentially, the search engine giant contends that, if Oracle were to succeed in securing its code against copyright infringement, Oracle would essentially become a monopoly within the software industry. Echoing that sentiment, Google’s legal chief argued ^[5] that a victory for Oracle “would for the first time grant copyright owners a monopoly power to stymie the creation of new implementations and applications.”

This argument, however, is the epitome of the pot calling the kettle black.

There’s an impressive degree of irony in a company like Google arguing against the use of “monopoly power.” After all, Google itself is the quintessential monopoly within the tech industry. A business that owns more than 92 percent ^[6] of the market share for internet searches, Google maintains a veritable vice grip over its sector of the economy. So much so, in fact, that the Department of Justice is actively investigating ^[7] Google for alleged monopolistic activities while 50 U.S. states ^[8] have launched an antitrust probe against the company.

One would think that if Google were to criticize monopolies, it would at least start by looking in the mirror. After all, the tech giant has certainly squashed its fair share of competition on its way to the top. Years back, Yelp accused ^[9] Google of theft, alleging that the search engine company would do “whatever it takes to preserve that monopoly.” And just recently, Sonos filed ^[10] a lawsuit against Google, stating that it had stolen its smart speaker technology and undercut the price. For the company to feign ignorance when it comes to its own monopolistic tendencies is certainly ridiculous.

But more than that, their argument itself falls apart upon closer examination. They allege that, if Google were to lose in the lawsuit, the ruling would entrench Oracle’s monopoly interests. But in reality, the situation is exactly the opposite. A favorable decision for Google — and the broadening of the fair use copyright exemption that results—would cement the search engine giant as precisely the monopoly they are arguing against.

By expanding fair use to encompass APIs and declarative code, the Supreme Court would be effectively guaranteeing that Google has free reign to stifle any potential competition. Already a company that pushes the boundaries of intellectual property, Google would be further incentivized to replicate the proprietary code within its competitors’ software. That way, Google could assimilate the unique design elements of competing products, cutting off any likely threats at the knees. This may be good for Google’s bottom line, but it would be horrific for the future pace of innovation and small business growth.

Rather than diminishing the risk of a monopoly, as Google argued, a ruling in favor of the tech giant would only exacerbate it. That’s what makes Google’s monopoly argument so strange: they either fail to see the logical conclusion of their own claims, or they are hoping that the Supreme Court will do the same. Either way, Google’s contentions are the essence of hypocrisy, and hopefully, SCOTUS will manage to see that moving forward.

This article first appeared at the Daily Caller. ^[11]