What is fair use? How did the court decide that Google’s action came under the ambit of fair use?
The story so far: On April 5, the U.S. Supreme Court ruled in favour of Alphabet Inc.’s Google in a case where it was accused by Oracle of violating the country’s copyright law. The case, dubbed “the copyright case of the century”, began with Oracle’s charge in the San Francisco federal district court in 2010 that Google’s Android platform infringed upon its copyright in a platform called Java SE. In the process of finally being decided by the U.S. Supreme Court in a 6-2 verdict, this case made its journey through a federal district court and an appellate court twice.
What is the background of the case?
Oracle’s lawsuit came shortly after it acquired Sun Microsystems, which had developed the Java language. Consequently, it came to own the copyright in Java SE (standard edition), a platform that programmers use to build programs that work on any personal computer. Oracle’s charge was that Google copied a part of this platform’s program while developing the Android platform for programmers.
What did the courts find?
The courts found that Google did negotiate with Sun Microsystems, prior to it being bought by Oracle, to license the use of the Java platform in Android. But negotiations fell through. Eventually, as the Supreme Court noted, it created the Android platform software using the services of about 100 engineers who worked for more than three years. But Google also wanted the millions of Java programmers around the world to be able to work with Android seamlessly. As Justice Stephen Breyer wrote in the majority opinion, “It also copied roughly 11,500 lines of code from the Java SE program.”
What were the legal questions that the Supreme Court had to weigh in on?
Prior to Google bringing the case to the Supreme Court, the Federal Circuit, an appeals court, had ruled in Oracle’s favour. The lower courts had focused on two major questions, something that the Supreme Court had to review. The first was whether Oracle could copyright the part of the code that Google copied, and the second was whether the copying constituted fair use, if the answer to the first was in the affirmative.
In ruling in Oracle’s favour, the Federal Circuit had held that the portion of the copied code is copyrightable and that Google’s act did not constitute fair use. The Supreme Court decided to sidestep the first question, saying, “In reviewing that decision, we assume, for argument’s sake, that the material was copyrightable.” The question of the copyrightability of the code remains significant also because the lower courts gave different judgments on it. But the Supreme Court decided the second question in Google’s favour, saying that its copying of a part of the code constituted fair use, and therefore it did not violate the copyright law.
What is fair use?
According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” So, activities such as “criticism, comment, news reporting, teaching, scholarship, and research” may qualify under fair use. In other words, these activities can be exempt from copyright infringement charges.
How did the court decide that Google’s action came under the ambit of fair use?
Section 107 of the U.S. copyright law provides a framework to judge fair use. It contains four factors, in the following order — the purpose of the use, the nature of the copyrighted work, the substantiality of the portion used in relation to the whole work, and the effect of the usage upon the potential market.
The court decided to start with the second factor, the nature of the copyrighted work. What worked in Google’s favour was that the court made a distinction between a code “that actually instructs a computer to execute a task” and the code that Google copied, which were the lines of an API (application programming interface), which “allows programmers to call upon prewritten computing tasks for use in their own programs”. To understand this, it is best to go back to the district court’s explanation of what happened. That court said, “An API is like a library. Each package is like a bookshelf in the library. Each class is like a book on the shelf. Each method is like a how-to-do-it chapter in a book. Go to the right shelf, select the right book, and open it to the chapter that covers the work you need.”
The Supreme Court said Google’s copying was transformative, as it “copied only what was needed to allow programmers to work in a different computing environment” (which is Android) using a familiar programming language (Java).
What is the implication of this ruling?
There is a view that the software industry is relieved that the Supreme Court differentiated between the type of code Google copied, i.e., software interface, and other creative codes. Digital rights group Electronic Frontier Foundation said, “This decision gives more legal certainty to software developers’ common practice of using, re-using, and re-implementing software interfaces written by others, a custom that underlies most of the internet and personal computing technologies we use every day.”