Intellectual Property

ALEC Files Amicus Brief in Google v. Oracle Supreme Court Case

Earlier today, the American Legislative Exchange Council filed a brief, amicus curiae, in the Google LLC v. Oracle America, Inc. copyright dispute. At the heart of the dispute is whether computer programs can be subject to copyright protection, with asking if Google’s copying of Java would be fair use under copyright law as a second question.

The ALEC brief focuses on the private property roots of intellectual property. The founders drew inspiration for the Intellectual Property Clause of the Constitution from philosophers like John Locke, who argued that “the roots of property may be traced to the fruits of a man’s labor.” Founders like James Madison expanded upon Locke’s philosophy by offering “a broad definition of property, which, [Madison] said, ‘in its larger and juster [sic] meaning … embraces everything to which a man may attach a value and have a right.”

The purpose of copyright law, and IP protections broadly, is to “promote the progress of science and the useful arts.” U.S. Const. Art. I, Sec. 8. The founders decided the best way to promote the progress of science was to grant authors and inventors “exclusive usage rights for a limited time.”

State legislators have a keen interest in the outcome of the case. While strong IP protections benefit the American economy, state legislative districts across the country feel the benefit even more. As noted in the brief,

“Innovators in states like California, Texas, and New York hold more than 20,000 patents, copyrights, and trademarks in each state. Innovators in states like Pennsylvania, Virginia, Ohio, and Colorado hold between 5,000 and 20,000 IP rights in each state.

“These IP holdings translate to significant economic benefits. For example, California has over 7.5 million jobs related to IP, realizes nearly a trillion dollars in sales, and sees over $100 billion invested in research and development. Similarly, Texas can claim over 5 million jobs related to IP, realizes about $750 billion in sales, and sees over $20 billion invested in research and development. Finally, for purposes of this illustration, Pennsylvania can trace over 2.5 million jobs related to IP, almost $270 billion in sales, and $14.6 billion invested in research and development.”

Anything that threatens IP rights and protections is a concern for state legislators.

The brief also traces Congress’ intent to protect computer programs through the plain text of the law. Computer programs are written down, which means they qualify for protection as something called “literary works.” More than that, though, in 1980 Congress amended the law to include a definition of “computer program.” The 1980 amendment was suggested by the Commission on New Technological Uses of Copyright, or CONTU.

The Constitution grants Congress the ability to establish copyright standards. CONTU recommended that Congress periodically evaluate the cultural expectations for computer programming and update the law as technology changed. Congress, to this day, has not reevaluated or amended the law. Because the Constitution grants Congress the ability to change IP law, the Supreme Court may not be the best venue for this dispute.

State economies and state legislators need certainty from the Supreme Court and Congress. Current IP standards have benefited many states immensely. The IP-related economy means well-paying jobs, tens of billions in investment, and trillions of dollars added to the national and state economies.  The ALEC brief attempts to focus the Supreme Court on the economic consequences to states of its decision in this case.


In Depth: Intellectual Property

Innovation and the intellectual property (IP) often underpinning it are crucial drivers of human progress. Innovation saves lives, facilitates human connections that have even sparked revolutions and entertains and enchants people around the globe. Pharmaceuticals, computer operating systems, social networking sites and films are all tangible examples of the intellectual …

+ Intellectual Property In Depth