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TUG OF WAR BETWEEN GOOGLE AND ORACLE: THE DEBATE SETTLES

Introduction

The whole world, and especially cell phone owners using the Android operating system, witnessed, the copyright case of Oracle America versus Google. It is a landmark judgement that cleared the mist around the ‘fair use doctrine’, ‘merger doctrine’ and other principles relating to the copyright of computer codes and commands. Though it is a set principle that programming language itself cannot be copyrighted as it is just a tool using which when clubbed with an idea and proper sequence something new can be created. However, the rules are silent about the copyrightability of predesigned codes formed for basic programming. The present case talks about the standing of the copyright of such codes and whether fair use can be used as san exception for this.

Background of the Case

In 1996, Sun Microsystems created the Java computer-programming platform, the company was accrued by Oracle in 2010. Java consisted of a programming language, a virtual machine, and application programming interfaces (API). APIs are shortcuts, prewritten code that perform certain functions. Programmers can use APIs to avoid creating rudimentary code from scratch. When Sun released Java, it included only eight prewritten code packages however by 2008, Java offered more than six thousand operations grouped into one hundred sixty-six APIs.

Google intended to use these Java APIs and taxonomy in developing its Android operating system for mobile devices. Therefore, it tried to negotiate with Sun Microsystems for a licence, but no agreement was reached. Nevertheless, Google copied thirty-seven Java APIs into Android.

The first cell phones using Android appeared in 2008. Oracle sued Google, alleging that Android infringed Oracle’s copyright. Google argued that Android didn’t infringe on Oracle’s copyright, that the APIs weren’t copyrightable, and that even if Java was copyrightable, Google engaged in fair use. The trial court ruled that Java’s APIs weren’t copyrightable, so Google’s use didn’t constitute infringement. Oracle appealed to the Federal Circuit where the judgement was reversed. On January 25, 2019 google filed for a writ of certiorari in the supreme court.

Opinion of the Court

In a 6:2 majority the Court held that re-implementation of Oracle owned user interface was a fair use of that material by Google as a matter of law. The ruling of Federal Circuit Appeals Court was reversed by the court and kept the case on remand for further hearing. It is to be noted that Google v. Oracle case never intend to reverse or modify cases involving fair use which were delt earlier. The majority opinion was written by Justice Breyer, joined by Justices Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh whereas Justice Thomas dissented along with Justice Alito and Justice Barrett took no part in the decision.

The Majority Opinion

Despite the fact that the Court was asked two questions, the majority chose to ignore the first, which was whether the declaring code in question is copyrightable, and didn’t make an express judgement on it.. The court instead of focusing on the issue of copyrightability under 17 U.S.C. §§ 101 and 102, decided to examine fair use factors under 17 U.S.C. § 107. The decision was based on four elements:

· The Nature of the Copyright Work- The court compared declaring code with implementing code by identifying the declaring code’s characteristics that undermine its Copyright Act protection thus distinguish it from implementing code. When the ideas were put together, the court came to the conclusion that while both the codes are functional in nature, the former is bound together with ideas of uncopyrightability inherently and new and creative expressions of others, like implementing code of Google Android. Thus, the court concluded that the declaring code’s nature favours fair use.

· The Purpose and Character of the Use- The majority agreed that Google’s act of duplication of the code at issue is done accurately and the Google used it "in part" for the purpose which is similar to Oracle’s when the question of determining the usage as "transformative" is taken into consideration under this element. If we look at it in general the said factor is against Google, but according to the majority these factors cannot be used to rule against fair use in the context of computer programmes since it would overly narrow the concept. As a result, it was concluded that the goal of Google was only to use declaring code which is designed for computers and laptop and also applying it to smartphones. The majority acknowledged amici's support for Google, citing briefs from Copyright Scholars, Microsoft, Computer Scientists, R Street Institute, and the American Antitrust Institute. Under this element, the court was persuaded by the amici’s claim that the Google’s usage was transformative. Commerciality and good faith of Google was also got evaluated by the court thus concludes that commercial use was not questionable. Therefore, according to the court this element was in the favour of Google.

· The Amount and Substantiality of the Portion Used- The declaring code for 37 Sun Java API packages, which is around 11,500 lines of code, was copied by Google. When analysed separately, the majority agreed that there is a lot of copying. However, the court decided not to evaluate it separately or in isolation and opted to include the millions of lines that were not copied by the Google thus making this element in favour of Google. On the substantiality issue, Breyer stated that "Google copied those lines not because of their creativity, beauty, or even (in a sense) because of their purpose." It cloned them because programmers were already familiar with [Java SE], and it would have been difficult to recruit programmers to Android without them.

· Market Effects- In this case, the court refused to evaluate the impact on the Oracle’s market by examining the loss of revenue as a result of the copying. Instead, they emphasised that it was Oracle who lack its success in the smartphone sector, giving a contrasting opinion on the argument given by Oracle that its market was hurt because of Google’s act. The court also considered the question of "public advantages" resulted because of the act of copying by Google in accordance with the Copyright Act. The court also acknowledged that, even in the computer programming world, the public interest balance may not always be acceptable. In this case, however, the court chose to take public interest into account while considering the anticipated market ramifications of re-implementation by the Google in this case.

The Dissenting Opinion

According to the dissent, fair use methodology of the majority is incongruous with the significant protection Congress accorded to computer code. They gave the suggestion that if the majority had answered to the first issue, then the rationale given by them would have rendered their fair use analysis unarguable. The dissent rejected the majority’s attempt of separating implementing code from declaring code, which pointed out that their observations with respect to implementing code are true for declaring code as well. The dissenting opinion also had a very different perspective with respect to the market impact on Oracle because of Google’s attempt to copy and claims that the question on the production capability of Oracle to produce its own smartphone is not true as whole because Oracle could have licenced its software for use in Android. Accordingly, the dissent had an opinion that Google's copying wiped out Oracle's market. Finally, the dissent considers Google's use to be a market substitute for the original.

Critical Analysis & Remarks

This was the most anticipated and keenly followed case in the whole IT world, as the outcome would have a significant impact on software development. Considering the opinion of judges, it seems to be a well tackled case that addressed only the problems that were pertinent to the facts in hand. Information Technology is a rapidly growing sector and the present principle may or may not be applicable on what’s coming next, the judgement only resolves the conflict by considering some factors such as the need of copyright claim over APIs and that the fair use doctrine applies on the present facts. The final judgement favours Google, ruling favouring Oracle could have created a chilling effect on the programmers and software developers globally. As an API copyright holder would prevent the use of codes in interoperable and alternative programmes which could be made by rearranging or reverse engineering the APIs. This would restrict the ideas of other creators for whom these codes are just a means to reach their outcome.

Various programs which are extensively used nowadays are open-source programmes i.e., their source code is accessible to the programmers. A programmer only by adding some additional commands can bring up a new feature that would have a high level of interoperability as it would easily run over various platforms which have the same API. Java APIs are compatible on a majority of devices as they have covered a large market with time, preventing developers from using these scripts for new programs is not wise. Fair use in the present case is limited to the creation of new features and innovation for providing better service to the user. A programme may use the existing set of codes the end thus achieved is novel.

Though the decision appears to be an ideal answer for copyright protection exempting the fair use of pre-set command, companies can exploit the lack of precise rules to determine the extent of copying under the guise of ‘fair use’. Google used about 11500 lines of command this may seem to be a lot but actually it is just 4% of the new program designed. Therefore, it could be ascertained that the motive was to develop something use and these copied commands were only stepping stones on the way to the eventual aim. Here the judgement is silent on the fact that what is the extent to which such copy pasting can be justified. This lacuna would lead to protection from prosecution even for unlicensed use of APIs.

Moreover, IT sector is not the only sector affected, the architectural copyrights and other creative works such as arts and books also have similar conflicts. These works are much like computer codes as there are some basic elements which are generic in nature, it may now be easier in these sectors to mimic the elements of existing subjects. Many claims are expected to arise in the following days, and the court may have taken this into account and established objective criteria for determining unusual usage of copyrighted elements.


Title Image: Nordic APIs


This article has been written by Nikita Goyal and Divyapratap Parmar. They are both second year law students from ILNU, Ahmedabad.