United States: Google And Oracle To Spending A Fortune Together Exploring The Bounds Of Fair Use

Last Updated: July 1 2015
Article by Justin F. McNaughton

Google and Oracle have been fighting for years over Android.  The best summaries of the cases are on Wikipedia and the Electronic Frontier Foundation website.  The basic issue was whether Google had infringed Oracle's copyright in Java when it wrote Android software using using some of the basic names, organization, and functionality from Java. Part of Google's rationale appears to have been to enable programmers familiar with Java to be able to write Android easily.

Last year, The Court of Appeals for the Federal Circuit decided that there is a copyright in these basic Java elements. On Tuesday, the Supreme Court upheld the Federal Circuit's ruling by refusing review the decision. So, like it or not, current law says there is copyright in APIs and that the basic names and organization of the the Java APIs is subject to copyright. There is also no dispute that Android incorporates some of the basic names and organization from Java.

The next stop for these two companies is back to the trial court to determine whether Google has a defense to copyright infringement based on "fair use."  Since you were wondering, fair use has nothing to do with use on merry-go-rounds, dunk tanks, or other carnival rides.  Instead, it is a copyright (e.g., software) rule that says that even if something is copyright protected, in certain instances use of it is not an infringement.  Stanford University and Columbia University each have pretty good summaries of the test for fair use.

The Copyright Act creates the"fair use" exception to copyright:

the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

Although the first part of the section give six examples (criticism, comment, news reporting, teaching, scholarship, and research), typically the fair uses cases that arrive at litigation are not as clear cut.

So let's take the Java APIs and run them through the fair use blender.

(1) What is the purpose and nature of Google's use of the Java APIs?

Contrary to what this sounds like, the typical test here is whether the use is transformative.  The more transformative a use is, the more likely it is a fair use.  A work is "transformative" when the new work does not "merely supersede the objects of the original creation" but rather "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message."

I would argue that Google's use of the Java APIs was indeed transformative.  First, Java was not compatible with smartphones at the time, and it wouldn't work as an alternative to Apple's iOS or Microsoft's mobile OS. Second, by using the Java APIs, Google was able to allow Java programmers to quickly adapt to and write for Android because it provided basic familiarity even though the way Android operates is different than Java. Third, the purpose of Java was to allow programmers to create software that was agnostic to different operating systems, but the purpose of Android is as an operating system. There are also many technical changes that Google implemented in Android.  I think this factor weighs in favor of Google.

(2) What is the nature of the Java APIs?

The more creative a work is, the less likely a use of it is fair use.  APIs are functional lines of code typically intended to translate between different systems.  Because they are highly functional, in my opinion, they are not overly creative.  I think this factor also weighs in favor of Google.

(3) What is the amount and substantiality of the Java code used in relation to Android as a whole?

The more of a work that is borrowed, the less likely it is a fair use. Reportedly, Android includes over 14 million lines of code.  Of that total, 9 lines are borrowed from Java.  I think this factor weighs heavily in favor of Google.

(4) What is the effect of the use of the Java code in Android upon the potential market for or value of Java?

This one is outside my expertise, but Java appears to be doing just fine. It is found in all sorts of devices, including on mobile devices with third party operating systems.

After running through the factors (and even without the benefit of the last one), it seems to me that fair use would favor Google.  Android is not simply a copy of Java, the lines of code copied were not the heart of the Java program, and not very much code was actually used.  Of course, Oracle disagrees.

~ TechAttaché

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