On Google’s White House and the Future of Technology Policy
That Obama’s White House has maintained close ties with Google over the years is hardly a secret. Our President is probably the biggest science and tech enthusiast to ever occupy the Oval Office—a distinction that has resulted in some more-or-less unprecedented forward strides in the realms of (for example) cybersecurity and biological research.
However: while Google is clearly a leader in technological innovation, many (including myself) have questioned the wisdom in the federal government cozying up to what is almost certainly one of the most morally ambiguous companies active in the world today.
That moral ambiguity has expressed itself in a variety of ways recently, including an ongoing lawsuit, covered extensively in 2014, in which Oracle alleged that Google had stolen portions of its proprietary Java code in order to build the Android operating system. Google sought to incorporate Oracle’s Java APIs into Android in order to make app developers’ lives a little easier.
In a series of court decisions and reversals, Oracle’s claim was at first dismissed on the grounds that APIs are not eligible for copyright protection. Later, an appellate court reversed that decision, opening the door for Google to pay Oracle for damages. Here’s a brief rundown of what happened:
- The original decision: The court sides with Google because APIs are determined to function like instruction manuals—not intellectual property in their own right.
- The new decision: An appellate court overturned the decision, siding with Oracle instead, and awarded them damages (initially in the billions) for the property that Google “stole.”
- The aftermath: Google has appealed the decision, and the DOJ has encouraged the Supreme Court not to hear the case, effectively agreeing with Oracle that APIs should be protected intellectual property.
For the sake of clarity, I’ll point out that APIs exist in order to allow one app to communicate with another. They’re typically given away free of charge, and Google has been adamant that the court’s decision to grant them copyright protection will set a “damaging precedent” for the larger world of computer science.
So where does the White House fit into this picture?
Let’s start with the fact that the Department of Justice has recommended that the United States Supreme Court should reject Google’s appeal in the Oracle lawsuit. This is still just a recommendation, but one that could prevent the case from ever reaching the docket.
Meanwhile, over the last few years, Consumer Watchdog has been raising concerns about Google’s increasingly close ties to the US government. You may remember that Google was the subject of a Federal Trade Commission antitrust investigation—a setback that was settled quietly in 2012. Consumer Watchdog points out that Google maintained a close relationship with regulators throughout the process, due to the considerable amount of lobbying power the company has in Washington. Of America’s tech giants, it’s not a stretch to say that Google has the greatest access to the political process.
According to Reuters, the Obama administration is still ambivalent about the merits of the DOJ’s recommendation. The question is not whether software should be permitted to be copyrighted, but the extent to which that protection extends to APIs. According to the DOJ brief: “A copyright for a book that explains how to perform a new surgical method would bar others from copying the book, but not from practicing the method that the book describes.” This is an accurate parallel with how APIs work, and it’s what informed the original decision that favored Google.
For my part, I think the DOJ is choosing a strange time to get tough on Google. Even if you don’t agree with Google’s business model, their political savviness, or their general level of creepiness, they’re probably right to argue that APIs shouldn’t be awarded copyright protection. In point of fact, software patents of any kind are a troublesome trend.
In the ongoing debate, those who argue against software patents do so by pointing out that they prevent universal standards from emerging, thereby limiting cross-platform compatibility. Even something as banal as the “pinch to zoom” feature on your iPhone is subject to copyright protection, and prevents rivals from borrowing the technique for a full 20 years. They must ask permission to use it, or are subjected to licensing costs or threats of legal action.
Indeed, if more software developers embraced open standards, our digital lives would look considerably different than they do now, where every company seems to want to construct a walled garden, locking users in to a single, aggressively incompatible platform. It’s a toxic culture, and it’s not going to get any better for the foreseeable future.
But these are the growing pains we’ve come to expect from almost perpetual technological progress. Generally, government involvement in science and technology seems to fall into three broad categories:
- The Good: I, for one, was pleased when, back in 2014, the FTC oversaw a settlement involving LeanSpa, a company that was found to be using fake news websites to sell dubious weight loss products. It was a landmark case that helped solidify the government’s mandate to intervene when communications technologies are abused.
- The Bad: And yet, other news is not quite so positive, as when the Supreme Court sided against Aereo, a startup which offered remote DVR service. The product was quite similar to any of the dozens of high definition television antennas that you can buy in any electronics store in America. Nevertheless, the not-so-technically-savvy Supreme Court has essentially sentenced Aereo to death.
- The Complicated: Presidents and senators have been calling for more environmentally-friendly automotive standards for years, but the private sector has been slow to respond. In fact, one gets the impression that what progress has been made so far (such as Ford’s EcoBoost technology, or Toyota’s disappointing hybrids) is about targeting the “green consumer” rather than civic duty. Hopefully, new government standards will push these companies to do even more.
The lesson here is that technology policy is a delicate thing, and we’re going to get it wrong sometimes. In fact, I’d go so far as to say that the breakneck pace of technological progress is going to determine the size and scope of the federal government more than anything else has at any point in our history. For proof, one only has to look at the recent black eye left by hackers who secured federal employees’ data from government servers: a development that is going to help set the tone for technology policy for a long time to come.
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