Notable Case: Oracle v Google – Appeal Two

Notable Case: Oracle v Google – Appeal Two

Copyright is a set of exclusive rights granted to the author of a new work.  In the United States copyright law originally applied to creative endeavors like art and literature.  In 1980, the United States Congress added the definition of computer program to the list of works protected by copyright in 17 U.S.C. § 101.

Copyright law and software are like oil and water, if you shake them up they will mix for a while but over time they will separate.  The fundamental problem is software runs on computers, computers are functional objects, copyright law specifically does not protect functional things, except for software.

ORACLE AMERICA, INC., v. GOOGLE LLC, Fed. Cir. (2018) demonstrates how copyright law, and the courts, in the United States has trouble dealing with software copyright.  The facts of the case are relatively simple.  Sun Microsystems developed a programming language called Java in the 1990s.  The Java programming language itself is free and available for use without permission.  Google created an operating system called android which mimicked the Java application programming interface in the mid 2000s.  Google did not copy the Java software, Google developed their own software which would process information in the same way as Java.  Oracle bought Sun Microsystems and sued Google for copyright infringement in 2010.  This case has been ruled on by a United States Federal District Court twice and appealed to the United States Court of Appeal for the Federal Circuit twice.

In the most recent appeal the United States Court of Appeal for the Federal Circuit declared that Google’s copying of the functional aspects of a computer program was not fair use, as a matter of law.  The Federal Circuit directed the district court to determine Oracle’s damages.

If you are left confused, you are not alone.  It is worth reviewing the Federal Circuit’s opinion to understand how they reached their conclusion.

The Purpose and Character of the Use – The Federal Circuit held that even though Google did not charge for Android, the copying of Java was still a commercial use and that because the copying was verbatim, it was not a transformative use.  The court seemed to focus on how Google’s using the same function call names was not transformative, six pages of the fifty five page opinion were dedicated to this part of the fair use analysis.  The court also seemed to forget that functional things like function calls, cannot be transformed without breaking the software.

Nature of the Copyrighted Work – The Federal Circuit determined that this factor favored Google because reasonable jurors could have concluded that functional considerations were both substantial and important.

Amount and Substantiality of the Portion Used – The Federal Circuit determined that this factor was neutral, but leaned more towards Oracle because Google copied 11,500 lines of code from the 2.86 million lines of code that make up Java.

Effect Upon the Potential Market – The Federal Circuit determined that this factor favored Oracle because there was substantial evidence that Google’s copying of the Java application programming interface had a negative impact on the market for Java.

After reviewing the facts related to each of the four fair use factors, the Federal Circuit held that, as a matter of law, Google’s copying of the Java Application Programming Interface was not fair use.

The Federal Circuit’s decision in this case will have a substantial impact on the computer industry.  There is a fear that this decision will stifle innovation because computer software companies will have to deal with copyright infringement lawsuits even when they don’t copy another person’s software.  Google has the opportunity to appeal  the decision to the United States Supreme Court.  How this case turns out will have a significant impact on copyright law and the computer software industry.

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