The Supreme Court finally resolved the dispute between Google and Oracle over Google’s copying of 11,500 lines of declaring code from nearly 3 million lines of code from Sun Java API was copyright infringement. Dodging the question of whether such code is even copyrightable, the Supreme Court fount that the copying of the code, for the purpose of making Android programming similar to other Java programming was a fair use.<\/p>\n\n\n\n
The Supreme Court found that the Federal Circuit correctly identified Fair Use as a mixed question of law and fact, but ultimately held that the Federal Circuit was wrong as a matter of law when it reversed the jury’s determination of fair use. The Court thoroughly analyzed the four factors identified in 17 USC 107 before concluding that on balance, accounting for the functional nature of computer software, Google’s use was a non-infringing fair use.<\/p>\n\n\n\n
The Nature of the Copyrighted Work<\/strong><\/p>\n\n\n\n The Supreme Court said that the technology at issue had three essential parts: First, the API includes \u201cimplementing code,\u201d which actually instructs the computer on the steps to follow to carry out each task.\u00a0 [Google wrote its own implementing code].\u00a0 Second, the Sun Java API associates a particular com\u00admand, called a \u201cmethod call,\u201d with the calling up of each task. [Oracle did not argue that the use of these commands by programmers itself violates its copyrights.]\u00a0 Third, the Sun Java API contains computer code that will associate the writing of a method call with particular \u201cplaces\u201d in the computer that contain the needed imple\u00admenting code. This is the declaring code that Google copied.<\/p>\n\n\n\n The declaring code is inextricably boundup with the use of specific commands known to program\u00admers as “method calls” that Oracle did not con\u00adtest, and it is also boundup with the implementing code, which Google did not copy.\u00a0 The Court noted that the declaring code (inseparable from the programmer\u2019s method calls) embodies a different kind of creativity. Sun Java\u2019s creators tried to find declaring code names that would prove intuitively easy to remember to attract programmers who would learn the system, help to develop it further, and prove re\u00adluctant to use another. \u00a0The declaring code was designed and organized in a way that is intuitive and understandable to developers so that they can invoke it.<\/p>\n\n\n\n These considerations meant that, as part of a user interface, the declaring code differs from the mine run of computer programs. Like other computer programs, it is functional in nature. But unlike many other programs, its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new cre\u00adative expression (Android\u2019s implementing code). Unlike many other programs, its value in significant part derives from the value that those who do not hold copyrights, namely, computer programmers, invest of their own time and effort to learn the API\u2019s system. And unlike many other programs, its value lies in its efforts to encourage program\u00admers to learn and to use that system so that they will use(and continue to use) Sun-related implementing programs that Google did not copy.\u00a0 The Court concluded that in its view the declaring code is, if copyrightable at all, further than are most computer pro\u00adgrams (such as the implementing code) from the core of cop\u00adyright.<\/p>\n\n\n\n The Purpose and Character of the Use<\/strong><\/p>\n\n\n\n In the context of fair use, the Court noted that it has considered whether the copier\u2019s use adds something new, with a further purpose or different character, altering the copyrighted work with new expression, meaning or message, i.e. whether it is transformative. In determining whether a use is transformative, the court said that one we must go further and examine the copying\u2019s more specif\u00adically described purposes and character.<\/p>\n\n\n\n The Court said that Google\u2019s new product offers pro\u00adgrammers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was con\u00adsistent with that creative progress that is the basic Con\u00adstitutional objective of copyright itself.\u00a0 The Court found that Google copied the API (which Sun created for use in desktop and laptop computers) only insofar as needed to in\u00adclude tasks that would be useful in smartphone programs, and it did so only insofar as needed to allow programmers to call upon those tasks without discarding a portion of a familiar programming language and learning a new one.\u00a0 These and related facts convinced the Court that the \u201cpurpose and character\u201d of Google\u2019s copying was transformative\u2014to the point where this factor also weighed in favor of a finding of fair use.<\/p>\n\n\n\n Even though Google\u2019s use was a commercial endeavor \u2014 this was not disposi\u00adtive, particularly in light of the inherently transformative role that the reimplementation played in the new Android system. The Court also questioned whether bad faith has any role in a fair use analysis, but in the end simply concluded that it was not determinative in the present case.<\/p>\n\n\n\n The Amount and Substantiality of the Portion Used<\/strong><\/p>\n\n\n\n While when considered in isolation, the quan\u00adtitative amount of what Google copied was large — totaling approximately 11,500 lines of code, considering the entire set of software material in the Sun Java API, the quantitative amount copied was small. The total set of Sun Java API computer code, includ\u00ading implementing code, amounted to 2.86 million lines, of which the copied 11,500 lines were only 0.4 percent.\u00a0 While even a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the \u201cheart\u201d of the original work\u2019s creative expression, copying a larger amount of material can fall within the scope of fair use where the material copied captures little of the material\u2019s creative expression or is central to the copier\u2019s valid purpose.<\/p>\n\n\n\n The Court said that a bet\u00adter way to look at the numbers was to take into account the several million lines that Google did not copy. The Sun Java API is inseparably bound to those task-implementing lines — its purpose is to call them up. The code Google copied was \u201cnot because of their crea\u00adtivity, their beauty, or even (in a sense) because of their purpose.\u201d Google copied them because programmers had already learned to work with the Sun Java API\u2019s system, and it would have been difficult, perhaps prohibitively so, to at\u00adtract programmers to build its Android smartphone system without them. Further, Google\u2019s basic purpose was to cre\u00adate a different task-related system for a different computing environment (smartphones vs. desktop and laptop computers) and to create a platform\u2014theAndroid platform\u2014that would help achieve and popularize that objective. The Court concluded that the \u201csubstantiality\u201d factor will generally weigh in favor of fair use where, as here, the amount of cop\u00adying was tethered to a valid, and transformative, purpose.<\/p>\n\n\n\n Market Effects<\/strong><\/p>\n\n\n\n The Court acknowledged that consideration of market effects where computer programs are at issue can be complex. Potential loss of revenue is one consideration, but not the whole story. The courts must also take into account the public benefits the copying will likely produce.\u00a0 The Court noted that the jury could have found that Android did not harm the actual or potential markets for Java SE.\u00a0 The jury was repeatedly told that devices using Google\u2019s Android platform were different in kind from those that licensed Sun\u2019s technology.\u00a0 The Court found that taken together, the evidence showed that Sun\u2019s mobile phone business was declining, while the market increasingly demanded a new form of smartphone technology that Sun was never able to offer.<\/p>\n\n\n\n The Court said that a substantial part of the value may come from the fact that users, including program\u00admers, are simply used to it, and there was no indication that the Copyright Act sought to protect third parties\u2019 investment in learn\u00ading how to operate a created work.\u00a0 The Court said that allowing protection of Sun Java API\u2019s declaring code was a lock limiting the future creativity of new programs, and that this lock would interfere with, not further, cop\u00adyright\u2019s basic creativity objectives.<\/p>\n\n\n\n Conclusion<\/strong><\/p>\n\n\n\n The Court held that where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google\u2019s copying of the Sun Java API was a fair use of that material as a matter of law.<\/p>\n\n\n\n The Supreme Court finally resolved the dispute between Google and Oracle over Google’s copying of 11,500 lines of declaring code from nearly 3 million lines of code from Sun Java API was copyright infringement. Dodging the question of whether such … Continue reading
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