Google vs. Oracle: Using Copyrighted Computer Code Is Fair Use – Intellectual Property
Porter Wright Morris & Arthur
United States: Google vs. Oracle: Using Copyrighted Computer Code Is Fair Use
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In a long-awaited software copyright decision, the United States Supreme Court recently took place that Google LLC’s copy of Oracle’s Java Application Programming Interface (API) is fair use in law. Java is a programming language and computer platform originally developed by Sun Microsystems, Inc., which was acquired by Oracle America, Inc. in 2009. Java is popular and widely used in many applications such as laptops, game consoles, supercomputers, cell phones, and websites because it provides clear and consistent code.
The Java API includes a list or directory of functions that are part of the Java Development Kit, which is a set of tools and libraries needed by programmers to develop applications using Java. This list includes thousands of function calls organized into groups. For example, a programmer can simply insert “Math.max (a, b)” into a line of code when it is necessary to determine which of the two numbers, a and b, is greater. This “name” calls a pre-written function routine that calculates the highest number.
In developing its Android application for mobile phones, Google exactly copied the naming convention and organization of the Java API. However, Google did not copy the function routines called by the Java API function calls. For reasons of efficiency, the Supreme Court did not decide whether the copied material was protected by copyright. However, the naming convention and organization of Java API function calls appear to be copyrighted. It is well established that the level of creativity required for a work to be protected by copyright is extremely low. The job doesn’t have to be new; he only has to own one “Spark” or “minimum degree” creativity to be protected by copyright. However, the court decided whether this exact copy of a copyrighted work was fair use.
The legal doctrine of fair use allows the unauthorized use of copyrighted works in certain circumstances. The Copyright Act provides a legislative framework for determining whether something is fair use and identifies certain types of uses, such as criticism, commentary, reporting, teaching, scholarship, and research. , as examples of activities that can qualify as fair use. Four factors are required by law to be considered in assessing a fair use issue:
- Purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes;
- Nature of the work protected by copyright, including the extent to which the work used relates to the copyright objective of encouraging creative expression;
- Amount and substantiality of the part used in relation to the protected work as a whole; and
- Effect of use on potential market or value of copyrighted work.
In analyzing fair use, the court considered each of these four factors:
- Purpose and nature of use, including whether the use is commercial in nature or for non-profit educational purposes. The court indicated that the first factor was based primarily on the fact that the copy in question was transformative. That is, it adds something new to pursue a different goal. The court found that Google only copied what was necessary to allow programmers to work in a different computer environment (smartphones) without removing a familiar part of a computer language. Thus, the first factor weighed on fair dealing. The court did not appear to consider Google’s use of Android to be commercial, rather than non-profit or educational, which is the usual tipping point for the first factor. Moreover, it seems strange to think of smart phones as a new computing environment when one of the strengths of Java is that it is useful in all computing environments including mobile devices.
- Nature of the work protected by copyright, including the extent to which the work used relates to the copyright objective of encouraging creative expression. Regarding the second factor, the court pointed out that the value of the Java API is based on the fact that Java is widely used and therefore many computer programmers have invested time and effort in learning the Java API. The value of the Java API is not the inherent creative expression of the code. Thus, the second factor weighed on fair dealing. It should further be noted that allowing unlicensed use of the widely used nomenclature of the Java programming language appears to reinforce the constitutional mandate to encourage the creation of expression.
- Amount and substantiality of the share used in relation to the protected work as a whole. Addressing the third factor, the court noted that Google copied one percent or less of Java even though it copied exactly around 10,000 lines of code. Thus, the third factor weighed on fair dealing. However, little weight seems to have been given to the fact that Google copied the most important or valuable part of the Java API code, as the function routines themselves can be easily reproduced by inexperienced programmers, but almost all programmers know and use the Java API. nomenclature.
- Effect of use on potential market or value of the copyrighted work. Regarding the fourth factor, the court found that Oracle was unlikely to compete in the Android market and that Google’s copying creates more opportunities for others. Thus, the fourth factor weighed in favor of fair use. However, the fourth factor generally concerns the impact of the use on the copyrighted work. Allowing the copy of the Java API clearly reduces the market value of the Java code for Oracle. In fact, Google was in talks with Oracle for a Java license to develop Android before negotiations broke down and Google proceeded to copy the Java API rather than obtain a license because it felt that Oracle’s royalty claims were unreasonable.
At first glance, the court’s application of copyright law seems somewhat questionable. In fact, Justice Clarence Thomas’ dissent indicates it is downright incorrect. As noted above, three of the four fair dealing factors could arguably weigh against fair dealing. However, only one of the factors can overcome the other three factors and that seems to be what could have happened in this case. In addition, the court may have given heavy weight to the practical consideration of the negative impact on the information technology industry and the US economy that would result from prohibiting computer programmers from using the widely used nomenclature. of the unlicensed Java programming language.
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