ALEC, the Supreme Court and Intellectual Property

The Supreme Court is currently considering a case, Google v. Oracle America, that could have a dramatic effect on copyright law in general and specifically on the copyright protection for software. So important is this case for intellectual property (IP) that ALEC filed an amicus brief, that is, a friend of the court brief in the case. That brief can be found here.

Nearly 10 years ago, Oracle filed a lawsuit against Google claiming that Google took part of the software code, called Application Programming Interfaces, or APIs, to use in Google’s Android operating system. An API is a part of software that follows a communication protocol between different parts of a computer program. In other words, an API is what makes software interoperable with other programs and hardware — think of the plastic side of Velcro with all the little hooks to be able to latch on to material.

Google admitted that it did use the code but argued that APIs are separate from the larger software program and merely functional so is not protected by copyright.

Google also asserted in its defense it used the copy protected code within the bounds of “fair use.” Fair use is a legal doctrine that allows for the limited use of copyrighted materials under certain circumstances. Fair use is intended to balance the absolute property right protection of copyright against the public interest in the wider distribution and use of creative works. This is to say that fair use is a defense to the claim of copyright infringement, it is not an exception to copyright.

Oracle disagreed, claiming that the  part of the software was protected by copyright without an exception.

Over the years, two district courts agreed with Google, but on an appeal a federal circuit court reversed both of those decisions finding that the software in dispute was copyrightable, and that Google’s use of it failed to meet any fair use standard. Google then petitioned the U.S. Supreme Court to take up the case and to decide if APIs are protected by copyright, and whether fair use might be at play.

Intellectual property, such as copyright, and the innovation that underpins it, is a vital U.S. economic driver and is directly and indirectly responsible for millions of American jobs that pay higher than average wages. America’s founders understood this economic future and reasoned that inventors create property in its tangible and intangible forms and that the government has a duty to protect both.

For well more than a decade, ALEC has provided state legislators with information about every facet of IP, from the importance of incorporating strong IP provisions when negotiating trade frameworks to fighting counterfeits. While IP protections are the responsibility of the federal government, the benefits of strong IP protections are felt in states and among the constituencies of ALEC state legislators. The employers, innovators, and consumers in each state legislative district benefit from the trillions of dollars in IP created over the past few decades.

Because of the benefits enjoyed by state legislators’ constituencies, ALEC has highlighted the difficulties of protecting trade secrets including from leaks by careless federal government agencies and offered state legislators a nuanced approach on how to deal with patent trolls.

ALEC has submitted comments to foreign governments criticizing policies that were inconsistent with protecting intellectual property within their own nations and globally and through a resolution proposed by its state legislative members has called for increased funding to the U.S. State Department to strengthen America’s International IP Attaché program.

ALEC state legislative members also understand the link between strong IP protections and a nation’s economic performance, just as our nation’s founders did. OECD has reported that countries with strong IP regimes experience more robust economic growth.  And because Federalism is a guiding ALEC principle, ALEC has worked hard to ensure that members understand the high regard America’s Founders (many of whom held patents) had for IP.

While state legislators rarely have jurisdiction over IP issues, their constituents include innovators, creators, programmers, and others who enjoy protections under IP law. Any weakening of IP protections will have significant impacts in their districts, potentially harming both the economies in those districts and their constituents.

This case obviously is of great importance to the software industry and to tech in general, but it is also critical for IP more broadly. Fair use requires a case-by-case analysis of the facts and law, and regardless should only be used in very limited circumstances. Expansion of this copyright defense only weakens the protection of property, a cornerstone of the free market.

The Constitution and copyright law seek to achieve a balance: protect property rights while incentivizing innovation. ALEC legislators have urged the Supreme Court to do the same.