Constructing Jural Relations in the Software Industry: Implications for Competing Capitalist Models

Abstract

In 2021, the United States Supreme Court heard the case of Google vs Oracle. This case dealt with the issue of the fair use doctrine in copyright right law and how it applied in the case of software code. The distribution of rights and duties will play a critical role in the battle over the massive economic rents that exist in this sectorsimilar to the case of intangible property as discussed by John R. Commons and Thorstein Veblen in the early 20th century. We explore institutional alternatives and their underlying justifications as present in the case using the new Legal-Economic Performance framework introduced in Klammer and Scorsone (2022). We come to the unsatisfying conclusion that both alternatives feed into models of rentierism, indicating the need for new alternatives. A key point is that analysts will need to move beyond the disputants in the case under investigation and examine other institutional alternatives that are not being considered by the court to ensure a full and comprehensive analysis.