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A former member of Congress warns that if the U.S. Supreme Court decides in favor of Google in a current case, virtually all computer code is at risk of losing copyright protection.

Michael J. Pappas, a representative from New Jersey in the 1990s, wrote at the Federalist about the case, Google v. Oracle.

It centers on the issue of whether or not Google had a right to copy code from Oracle to develop the software for its mobile devices.

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Pappas explained the background: “At the start of the decade, Google was at risk of losing its tech dominance. Its search and advertising monopoly relied heavily on personal computers, which quickly started losing steam with the rise of the mobile phone marketplace. That posed a problem for Google, which didn’t even have a mobile operating system of its own.”

So to get ahead, Google decided it had to choose one of two paths: either negotiate for a license for the 11,000 lines of code it wanted, or, as Google co-founder Larry Page wrote, “Do Java anyway and defend our decision, perhaps making enemies along the way.”

The company chose the latter path and has been fighting in court now for nearly a decade in defense of its decision.

“Google acknowledged that it copied 11,000 lines of code from Java, but it argued the code can’t be copyrightable because there aren’t enough ways for a company to make what Java did,” Pappas explained.

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However, Justice Neil Gorsuch, pointed out that Microsoft and Apple didn’t use Java to create their systems.

Pappas said the point is valid, but he noted that other justices suggested an even more restrictive approach.

“Chief Justice John Roberts articulated the analogy of breaking into someone’s safe because the combination’s gatekeeper refused to provide it. ‘Cracking the safe may be the only way to get the money that you want, but that doesn’t mean that you can do it,’ he said. ‘If it’s the only way, the way for you to get it is to get a license.'”

Justice Brett Kavanaugh said one cannot copy a song “just because it’s the only way to express that song.”

Pappas noted that Sen. Orrin Hatch and Rep. Bob Goodlatte, who were chairmen of the Senate and House Judiciary Committees, confirmed that “all parts” of a computer program’s expression are copyright protected.

Pappas warned: “Without question, ruling in favor of Google would set a terrible precedent that wouldn’t bode well for the federal and state government officials working diligently to crack down on the tech giant’s abuse. During oral arguments, however, Justice Samuel Alito raised the possibility that it could do more than that.

“I’m concerned,” he said to a Google lawyer, “that, under your argument, all computer code is at risk of losing protection.”


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