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Google v. Oracle: A RealClearHealth ‘Pen Panel’ Symposium

Presented by the Editors, RealClearHealth

The facts of the case are straight forward: the two tech firms are in dispute over the intellectual property rights to Java. Oracle owns the software program. Google failed to secure a license with Oracle to use Java in its products. Claiming “fair use” Google then took large portions of the copyrighted program’s code for its own use.

Google’s interpretation of fair use is outside the norm. If the copyright infringement is left to stand, future innovation in myriad sectors, including heath care, will be jeopardized.  

What follows is a virtual discussion by leading health care, legal, and policy experts on the most crucial elements of the case, i.e., medical progress, innovation, and intellectual property.

The Future of Medical Innovation

By Jerry Rogers, founder of Capitol Allies and the host of “The Jerry Rogers Show” on WBAL NewsRadio.

This October the Supreme Court of the United States (SCOTUS) will decide the Google v. Oracle case. With its decision, SCOTUS will ”establish a copyright precedent that will impact much more than the tech ecosystem.”  

If the Court decides for Google, its ruling will be devasting to the future of digital-health, including telehealth and new technologies critical to fight Coronavirus-type pandemics. If Google’s copyright infringement stands, future medical progress will be impeded.

The principle of Intellectual property rights (IPR) is a pre-requisite to health care innovation. However, for Silicon Valley IPR is valued on a sliding scale. Big Tech firms with endless resources, like Google, can litigate over IPR infractions until it no longer sees the utility in litigating. On the contrary, health care innovators can ill afford such an indulgence – without firm rules and laws around IPR, medical progress is impossible.

The future of health care innovation will include codes and programming, not just pills and therapies. In health care, the intellectual property discussion is usually in the context of patents. However, future innovations – such as digital tools, health and fitness apps, and video-game prescriptions – hinge on copyright.

Using digital tools to upgrade the practice of medicine is critical to advancing Twenty-First Century health care. Digitized data, biosensors, new imaging tools, mobile device laboratory capabilities, end-to-end digital clinical trials, telemedicine, video game therapies, and other developing technologies depend on Intellectual Property Rights, including copyright.

The right medicine, treatment, therapy, and technology for the right patient at the right time – i.e., the future of medical innovation – hangs on strong IPR protection.

Google v. Oracle – Copyright Protection

By Steven Tepp, Professorial Lecturer in Law, The George Washington University Law School. Steven Tepp is the President and founder of Sentinel Worldwide. He is a globally recognized expert in intellectual property law and policy. He has written extensively on the subject and has been interviewed by ABC, BBC, CBS, FOX, NBC, and PBS, as well as numerous radio and print U.S.-based and foreign-based media outlets.

When most people think of copyright, they probably think about movies, music, books, and art. Four decades ago, Congress added computer code to the Copyright Act. Someone should have told Google.

When Google wrote the code for its famous Android system, it decided to copy key parts of copyrighted code owned by Oracle – over 11,000 lines. Copying Oracle’s popular Java code helped Google catch up with Apple’s groundbreaking iPhone. Oracle offered to give Google permission, but Google refused and copied anyway. Oracle sued and the case made its way to the Supreme Court.

Google admits it copied and is trying to convince the Court that Oracle’s code shouldn’t be protected by copyright because its “functional.” Of course, all computer code ultimately performs a function, so Google is essentially asking the Court to rewrite copyright law.

If the Court won’t do that, Google wants it to hold that copying was allowed, anyway. The copyright doctrine of “fair use” allows a range of uses without the permission of the copyright owner, but it is designed to favor non-profits, teaching, news reporting, and so on. Google wants the Court to inflate that to allow their commercial copying in competition with Oracle.

If Google wins on either claim, it will dramatically weaken copyright protection, especially for innovative software, and open the door to China-style copying of innovative and creative products right here at home. Instead, if the Supreme Court upholds the law as Congress wrote it, it would super-charge innovation by rewarding innovators and creators as America has always done.

Rights to Property

By Peter Roff, former UPI and U.S. News & World Report columnist who is now affiliated with several Washington-D.C.-based public policy organizations. He appears regularly as a commentator on the One America News network. He can be reached by email at RoffColumns@GMAIL.com. Follow him on Twitter @PeterRoff.

Innovation can be profitable. Thomas Edison knew it. Steve Jobs knew it. Elon Mush knows it. It’s the reward for success of thinking outside the box, for being able to see something that isn’t there but should be and making it happen.

That they can succeed so well is due to the protections historically given in America to the idea that ordinary people have rights to property. Many who originally came to the first colonies did so to secure those rights and, without them, America would never have had a middle class let alone a moon shot.

Those protections are under assault from people who want to argue intellectual property and real property are different. Google admits it took lines of code developed by another company without paying licensing fees to use it. And because it did, its Android phones compete with Apple’s and its search engine dominates the critical mobile phone market.

Oracle, the company that now owns the pirated programming wants to be compensated. Google argues what it took cannot be protected by copyright and was available to them under the doctrine of fair use. Now the United States Supreme Court will decide who is right.

Objectively, Google’s interpretation of the law and intellectual property protections cannot be sustained, either by historical or legal precedent. Issues like this persist nonetheless due to a lack of clarity in the law – a problem the high court will hopefully resolve in Oracle’s favor when it renders its decision.

An outcome favorable to Google would set a precedent adversely affecting software development and every other industry that relies on innovation and creativity to maintain and enhance its market position. Incentives matter in innovation. To protect the idea of private property, the court must come down firmly on the side of protecting intellectual property and find in Oracle’s favor.

Intellectual Property Rights Are Essential to Innovation

By Andrew Langer, President of the Institute for Liberty

Continued innovation will be vital to solving the twin crises America faces regarding health care: access and affordability. Competition is key to that innovation, and both are dependent upon the maintenance of America’s robust protection of intellectual property rights.

This robust protection is at the heart of the case of  Google v. Oracle, currently before the Supreme Court – and how the Supreme Court decides could have a sweeping impact on America’s ability to find a way to deliver health care to everyone who needs it and to do so at a price point that people can afford.

In recent decades, in those areas where there that has been real competition in health care, robust protection of intellectual property rights has led to innovations that have allowed procedures to be undertaken with greater amounts of safety while at the same time reducing the cost to consumers.

Twenty years ago, laser eye surgery cost, on average, $2,200 per eye. Today, you can find providers offering this service starting at $250 per eye – a drop of nearly 90% in price. This is entirely due to the combined forces of innovation and market competition – undergirded by a strong protection of intellectual property rights.

Legal scholars have noted the potential upheaval should the Supreme Court find in Google’s favor in Google v. Oracle. A significant weakening of those intellectual property rights would ensue, eviscerating the incentives that creative pioneers have to innovate. Why bother innovating if your ideas aren’t protected?

A victory for Google in this case would severely hamper our ability to find health care solutions.

Google’s Foray into Health Care

By Robert Goldberg, Vice President, Center for Medicine in the Public Interest and co-host of the Patients Rising podcast.

Google’s foray into health care benefits from and is based on the anticompetitive and illegal use of Java code. Google relies on its platform to collect data from users and to show them commercially valuable targeted ads. Without a platform of its own, “other companies could offer devices that ran apps written for Android, Google would have lost control, users, and money”.

So Google copied key elements of Java – namely, its declaring code that programmers use to allow their apps to access pre-written code, a key efficiency shortcut. Google needed to play catch-up without taking a Java license – as some of its own technicians concluded it needed to do – so it could keep Android proprietary. Every argument Google has made in the ensuing litigation has been a post-hoc rationalization of those business decisions.

And its health care data business strategy is similarly predicated on gaining a competitive advantage with anti-competitive transactions.

Google is not just gaining access to health data by buying up or investing in companies such as AmWell, the telehealth company, and Fitbit.  It wants the platform’s artificial intelligence to govern every treatment step and to monitor the behavior of every patient whose data it shares. 

It now owns part of the biggest health care reinsurance company – Swiss Re Group – in the world.  In other words, Google, in the name of connectivity and interoperability, will be able to control health care expenditures by controlling health care treatment decisions. This is not just anti-competitive; it is undemocratic and authoritarian.

In Google v. Oracle, if SCOTUS reverses the fair use standard applied by the lower courts, privacy and ownership of one's own health data – and the trust upon which it depends – will be more difficult and costly to secure.

 

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