<figure>
 <img src="https://media.eaglewebservices.com/public/2019/11/1573872297806.png" alt="Gene Policinski is president and chief operating officer of the Freedom Forum Institute." />
 <figcaption>Gene Policinski is president and chief operating officer of the Freedom Forum Institute.</figcaption>
 </figure>In what we can quaintly sometimes call “normal times,” copyright 
disputes are not regularly considered pressing concerns for the First 
Amendment.Freedom of expression — the freedoms of press and of speech, articulated in the First Amendment’s 45 words — protects our right to speak.But the technology and mode of how 
we speak generally is the province of other areas of the law, from 
contract law to rules protecting our right to peace and quiet at our 
homes late at night to copyright, the rules and regulations that prevent
 someone else from putting their name or improperly profiting on 
something we created.But a case to be argued March 24 in the U.S. Supreme Court 
dramatically engages both the “to” and “how,” by raising both tech and 
creative questions involving computer code.Google has successfully gotten the Supreme Court to review a 2018 
Federal Circuit Court of Appeals decision in favor of Oracle, the 
multinational computer technology company. The two companies have been 
in dispute for about a decade over Google’s use of 11,000 lines of 
computer code making up what is called an “application programming 
interface” (API, originally written by Oracle.In simple terms, APIs are how our electronic devices share 
information across differing products. As one document in the case 
explains, it’s what allows millions to “take a photo on their Apple 
phone, save it onto Google’s cloud servers, and edit it on their 
(Microsoft) Surface tablets.”Here’s how to break down the two company’s arguments to the justices in this long-standing legal battle:<ol>
 <li>Google says the code is not a creative work (a requirement for 
copyright, but a utilitarian series of computer steps that 
traditionally are open for all to developers to use in their own work, 
and thus not falling under copyright protection. (Think “set of 
instructions”).</li><li>Oracle argues that APIs are included under copyright laws and that a
 major factor for courts to consider in this case is that Google used 
Oracle’s creation to directly compete with Oracle, thus earning millions
 on its Android products.</li>
 </ol>So, what is the First Amendment’s direct concern in all of this? Follow me through this.Google supporters argue that being unable to use such common 
instructions will dampen the creativity of web developers and cripple 
software development — which for us means fewer ways to communicate by 
phone, tablet and such. They also warn the prohibition could cause 
companies to develop products incompatible with anyone else’s products, 
resulting in chaos for consumers.Oracle advocates — who, at least online, seem fewer in number than 
those supporting Google — counter that the remedy for such a looming 
disaster is simple: Google pays Oracle a fee to use its product.For all of us, the Supreme Court ruling could well help further 
define for the computer age a legal concept called “fair use,” which 
permits us to develop our own creative works by building on the earlier 
works of others. Such new creative work is said to “transform” the 
original — with a plethora of legal caveats on how closely the new work 
can copy or resemble the original.Nearly 20 years ago, a parody of “Gone with the Wind” was published 
as “The Wind Done Gone,” taking the plot and characters of the original 
and revisiting the story from the point of view of an African American —
 and making the point about racial stereotypes in the original.The estate of “Gone with the Wind” author Margaret Mitchell sued for 
violation of its copyright on what is considered the second 
highest-selling book after the Bible. The case was eventually was 
settled out of court. The author and publisher of the parody argued that
 by telling the same story, but from a slave’s perspective — even if 
followed the plot, scenes, settings and characters — the new work was 
sufficiently different.In the Oracle-Google battle, another kind of fair use is in play. In 
asking the Supreme Court to hear its appeal, Google said APIs should not
 be subject to copyright because their very purpose is to be used by 
others, to connect products owned by someone else.First Amendment advocates should watch the court’s decision — as 
difficult and complicated as the tech issues certainly are to track — 
because the potential appears to exist for limiting our ability to 
communicate with each other simply because our devices cannot connect. 
And, more broadly, we need to keep an eye on any dampening of the web’s 
potential for increasing public engagement in debate and decision on 
matters that affect us all.A bottom line to it all: The nine justices hearing the appeal may 
well decide if we will face a real-life example (or perhaps parody) of 
that phone commercial in which the character repeatedly shouts into a 
mobile device, “Can you hear me now?”Gene Policinski is president and chief operating officer of the Freedom Forum Institute. He can be reached at&nbsp;<a href="mailto:gpolicinski@freedomforum.org" target="_blank">gpolicinski@freedomforum.org</a>, or follow him on Twitter at&nbsp;<a href="https://twitter.com/@genefac" target="_blank">@genefac</a>.

FIRST FIVE: Tech battle ultimately about free speech