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Google Tries to Get the Supreme Court to Pretend to be Congress and Write Them Fake ‘Law’

March 27, 2020

As we know, the Left doesn’t give a rat’s posterior about the Constitution.

As we know, the Left doesn’t give a rat’s posterior about the Constitution.

The Separation of Powers exists within the Constitution – so the Left doesn’t give a rat’s posterior about the Separation of Powers.

For the Left and Niccolò Machiavelli – the ends justify the means.  By any means necessary.

The Constitution’s Separation of Powers – is its creation and delineation of the Executive, Legislative and Judicial Branches.

The Executive: Is headed by the elected President…the Chief Executive – and contains the (now FAR too many) departments, agencies, commissions and boards.

The Legislative: Is the elected Congress – the House and Senate.

The Judicial: Is the Supreme Court, and the many lower federal courts.  Populated by Justices and judges given lifetime gigs – after being nominated by the President and confirmed by the Senate.

The way its supposed to go is:

The Legislative passes bills.  The Chief Executive signs them into law.  And the Judicial reviews them to determine whether they are Constitutional.

Most unfortunately – to our great detriment – we have ventured far afield from this wise and prudent republican system.

We have Executive departments, agencies, commissions and boards – time and again pretending to be both the Legislative and Judicial Branches.

We have Judicial Justices and judges endlessly pretending to be the Legislative Branch – writing “law” themselves rather than determining whether Legislative laws under their review comport with the Constitution.

And we have the Legislative allowing the Executive and Judicial Branches to incessantly, continuously encroach upon their Constitutional turf – and doing nothing about it.

All of these devolutions – have been executed to remove We the People further and further from the equation.

We the People can un-elect Congressmen who write and vote for bad laws.  (Well, we could…were it not for gerrymandering.)

We can do nothing about unelected Executive bureaucrats and Judicial Justices and judges writing bad “laws.”

Decades of this anti-republican nonsense – has delivered us a $4+-trillion-per-year federal government monster – that bears zero resemblance to what the Founding Fathers bequeathed us in their magnificent Constitution.

Big Tech monster Google – is not stupid.  Relatively new in the history of the country – they came into being in this age of non-republican nonsense.

In the early 2000s, Google started lobbying the Legislative Branch to pass the self-serving cronyism they sought.

But passing laws is HARD – just as the Founders intended.

So while Google still keeps up the pretense of Legislative lobbying – their real efforts have shifted elsewhere.

Uber-Crony-and-Big-Tech-Quisling Barack Obama was elected President in 2008.  So Google shifted much of their effort – to seeking Executive Branch fiat favoritism.  Which Obama delivered like crazy.

Currently In Power: The Google Administration

Obama Executive agencies – “I have a phone and a pen” – started unconstitutionally writing LOTS of “law.”  LOTS of which was quite crony – LOTS of it for Big Tech cronies like Google.

But then, thankfully, Drain-the-Swamp Donald Trump was elected President in 2016.  Gone was Google’s Executive Branch quisling – and many of his bureaucrat minions.  So at least for now – Google ain’t getting much from the Executive.

Meanwhile, was Google ignoring the Judicial Branch in its efforts to get “law” – where they can not get law?  Heavens no.

And now one such effort has reached the Supreme Court.

Google v. Oracle America:

“(A) current legal case within the United States related to the nature of computer code and copyright law.

“The dispute centers on the use of parts of the Java programming language’s application programming interfaces (APIs), which are owned by Oracle, within early versions of the Android operating system by Google.

“Google has admitted to using the APIs…but argues their original use of the APIs was within fair use.”

Supreme Court, Finally, Takes Up ‘Google v. Oracle’

Here’s the short of it:

“‘Using Java APIs, developers can create new projects faster because they do not have to develop entirely new code. They can instead use Java APIs in a sort of cut-and-paste fashion, saving them time on grunt work and enabling them to focus more on innovation.’

“Java is ‘free and open’ – which means any and everyone can use it.

“With two conditions:

“You either make free and open – i.e. public – what you developed atop the Java base.

“Or

“You get a license from Oracle to use their Java.

“And here’s a surprise:

“Often, Oracle charges literally nothing for the license.

“All you have to do – is keep the Java software you use compatible. You cannot do anything to it – that might make it no longer play well with Java.

“Google – shocker – did none of the above. They took Oracle’s Java, remade it in their image – and then began playing hide and seek with the courts.”

So quite obviously Google stole copyrighted material – which Oracle copy-rightly owns.

Oracle absolutely, directly has the Constituion on their side.  In fact, the portion of the Constitution in question is nicknamed…The Copyright Clause:

“The Congress shall have power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

And Oracle absolutely, directly has Congress’ laws on their side.

As three former members of the Congress – former Senators Orrin Hatch (R-Utah) and Dennis DeConcini (D-Ariz.) and former Representative Bob Goodlatte (R-Va.) – have noted in a case-related brief they’ve filed with the Court:

“This Court should affirm the Federal Circuit’s rulings in this case that the Copyright Act of 1976 and its 1980 amendment (together, the ‘Copyright Act’ or the ‘Act’) provide copyright protection to computer programs, including Respondent Oracle America, Inc.’s declaring code, and that Petitioner Google LLC’s copying of thousands of lines of that code does not constitute fair use as a matter of law.”

(Please pardon the legalese and its run-on sentence.)

These three men:

“(W)ho all handled copyright matters while in Congress, told the Supreme Court justices in another brief defending Oracle that only Congress has the authority to amend copyright law….They wrote that Google should take its arguments to Capitol Hill rather than to the courts.”

Precisely right.

Google is asking the Supreme Court – to pretend to be Congress and rewrite the 1976 Copyright Act and its 1980 amendment.  To Google’s unconstitutional, anti-republican benefit.

But that ain’t the Justices’ job.  Per the Constituion.

But Google doesn’t care.  They want what they want – and they want it now.

And rewriting legislation is hard – just as the Founders intended.

So Google is looking to yet again end-run the Constitutional process.

The Supreme Court shouldn’t join with them in so doing.

[Originally posted at RedState]

Article Tags
Constitutional Reform
Author
Seton Motley is the president of Less Government, a DC-based non-profit organization dedicated to reducing the power of government and protecting the First Amendment from governmental assault.
smotley@lessgovernment.org @SetonMotley

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