The official corporate code of conduct for Internet tech giant Google has been well-known for including the phrase “Don’t be evil.” The phrase is attributed to former Google employee Paul Buchheit. According to a 2007 blog post publishing excerpts from an interview with Buchheit, he pitched that particular slogan during a meeting held by Google in 2000 when the company was trying to form its corporate values:
“It just sort of occurred to me that ‘Don’t be evil’ is kind of funny. It’s also a bit of a jab at a lot of the other companies, especially our competitors, who at the time, in our opinion, were kind of exploiting the users to some extent.” – excerpt from Founders at Work by Jessica Livingston
Recent news reports have indicated, however, that the phrase “Don’t be evil” has largely disappeared from Google’s corporate code of conduct in recent weeks, most likely in late April. After Google restructured its corporate makeup in 2015 to become a subsidiary of the Alphabet Inc. holding company, certain mentions of “Don’t be evil” were changed instead to “Do the right thing.” Both of those messages were seen as encouragement by the tech titan to its employees regarding the morality which they should employ in the decisions they make as employees. As of now, the code mentions that employees should “do the right thing” in certain ethical matters while only including one mention of its famed corporate slogan right at the very end of the corporate code:
“And remember… don’t be evil, and if you see something that you think isn’t right – speak up!”
Google’s decision to alter its code of conduct in this way has elicited a wide range of response from news publications. Tech news outlet Engadget portrayed it as a tacit recognition by the tech giant that “In order for Google to be Google, it has to do evil.” Business and branding publication Fast Company lauded the move as a positive shift away from simply proscribing against bad behavior towards the prescription of good behaviors within the company.
However, in intellectual property circles, it would be easy question whether Google has lived up to the goal of not doing, or being, evil.
To accuse Google of operating with malevolent intent in recent years in order to serve its own corporate interests. First of all, consider Google’s ample financial largesse to D.C. politicians around the time that the America Invents Act (AIA) was signed into law. This includes the $800,000 contributed to former President Barack Obama’s 2012 election campaign (making it the third-largest contributor to the Obama campaign), the nearly $900,000 contributed to federal candidates running in 2012 for the House and the Senate (which was split 49 percent to Democrats and 50 percent to Republicans) and the $18 million total lobbying expenditures during 2012, the eighth-largest federal lobbying total among all entities. If spending money to influence political debate towards unjust ends is evil, Google’s been guilty of that for years.
One could also point out the influence that Google had at the U.S. Patent and Trademark Office in the form of former USPTO Director Michelle K. Lee. Lee was appointed as USPTO Director after serving as Google’s general counsel and head of patents and patent strategy from 2003 to 2012. The implementation of the AIA, which was supported by Google, under Director Lee, a former Google executive, has been deleterious to the U.S. patent system which has dropped significantly in international rankings of patent systems in large part because of increased uncertainty regarding the validity of any patent challenged through the Patent Trial and Appeal Board (PTAB) created by the AIA. If buying political influence and then exerting that influence in the interests of decimating an entire system of property rights in order to prevent competition is evil, it appears that Google is at grave risk of being considered so.
Further, if using corporate funds to influence academic debate on various policy subjects related to corporate interests is evil, Google’s intentions are looking darker day by day. Investigative research published last year by The Wall Street Journal has shown that Google has financed hundreds of academic research papers which advocate against regulatory challenges to Google’s market dominance. That research ties money coming from Google to professors at the University of Florida and the University of Utah who have published papers funded by Google that argue for patent policies which are favorable to Google; that research has been published at least as early as 2013. The policies that research has supported have helped large companies to the complete detriment of startups and independent inventors. Seems pretty evil.
If Google were only achieving corporate success because of political and academic payoffs, that would be bad enough. However, the company further works to influence political debate by supporting the work of nonprofit organizations which are very active in D.C. This includes the High Tech Inventors Alliance (HTIA), an organization which is a servile puppy dog to the efficient infringer cabal and whose general counsel is a highly unscrupulous individual. Although Google’s involvement with the HTIA is visible, the company works much more surreptitiously to support its agenda in Washington. This includes Google’s funding Engine, a nonprofit which poses itself as a supporter of small tech businesses while testifying on anti-patent positions in Congressional hearings in front of politicians which have also been funded by Google. A recent watchdog report has even laid bare how Engine was conceived and founded by high-ranking Google employees and how Engine, along with the Electronic Frontier Foundation, are shills for Google’s policy positions while masquerading as organizations interested in promoting innovation and small business interests. Google money is baked into the committees forming policy on patent law, the witness panels asking Congress for those reforms and the organizations telling us that those reforms are helpful to the little guy when they’re actually highly toxic to patent owners trying to protect their intellectual property. It’s Google’s world, we’re just living in it.
Without question, Google’s efforts to devalue patent rights is foundational to the company given its long-running penchant for copying the technologies of others for its own business success. Google’s entire targeted advertising operation, which provides upwards of 90 percent of the companies revenues, relies on technologies invented by B.E. Technology in the early 2000s. After B.E. Tech filed a patent infringement suit against Google in 2012, Google filed for inter partes review (IPR) proceedings at the PTAB to challenge those patents. Thanks to a panel stacked by Director Lee with administrative patent judges (APJs) having some of the highest rates of claim invalidation at the PTAB, Google gets to continue making billions of dollars each and every financial quarter by practicing a technology invented by someone else without paying a license, royalty or anything (except for the costs of the IPR filings, of course).
Randy Landreneau, President of inventor activist group US Inventor, offered the following remark regarding Google’s involvement in the U.S. patent system in recent years:
“There have been other attempts to weaken the American Patent System, but never in history has one company had such an ability to influence public opinion, elected politicians and the USPTO. The results have been disastrous for the independent inventor and American innovation.”
To paraphrase the famous words of Lord Acton, absolute power corrupts absolutely. Google has incredible dominance over Internet search, where it controls 89 percent of the market (just shy of Judge Learned Hand’s legal opinion of 90 percent market share constituting a monopoly). Standard Oil, the classic example of a monopoly subject to antitrust regulations, was once famously depicted as an octopus wrapping itself around various industries and political institutions. Google’s tentacles go even further into academia and other organizations influencing the debate on patent reform. Evil? You betcha.