Rick: Nancy, Welcome to 2020. It’s time for another edition of DMLA Q&A or IP for Dummies – like me. Ready?
Nancy: Fire away.
Rick: Let’s talk about Google v. Oracle. When I think about tech, I think patents. Why are we discussing copyright and not patents in Google v. Oracle?
Nancy: Patents deal with processes and systems, not the writings of the code. The protection for “literary works” under Section 102 of the Copyright Act has been interpreted broadly to include software code. This case has to do with Java’s declaring code that Oracle licensed as part of Java for commercial purpose until “Google” took it to use with its Android platform after licensing negotiations collapsed. In programming, declaring code is a statement describing an identifier, such as the name of a variable or a function. Declarations are important because they inform the compiler or interpreter what the identifying word means, and how the identified thing should be used. The issue is whether the software-declaring code is copyrightable, and if so, was Google’s use of it a fair use. The case has been around the block – heard before federal district courts and on appeal by the appellate circuit court. The latest appellate circuit court decisions found the software to be protectable and the use by Google is infringing and not fair use.
Rick: Why is Google v. Oracle so important to the licensing community?
Nancy: Google v Oracle is the first Supreme Court fair use case in 25 years. For the content world – from creators and producers to licensors and publishers – it is less about Google v. Oracle and more about educating the Supreme Court on how fair use opinions have gone off the rails. The word “transformative” has often been misapplied by the courts to excuse the use of copyrighted content for free, or where the work is actually not transformed to create a new work – but used for a different purpose. Oracle won in the Federal Circuit Court. Google wants the decision overturned.
Rick: Isn’t this really a licensing issue? Isn’t Google just trying to have their Android open source cake and eat it too? I am not an Open Source expert, but it feels like Google wants Android, which is open source, to still have full access to closed-source, licensed products and code. Is this correct?
Nancy: Open Source is a form of licensing, and while there may be no license fee, the owner can impose conditions on how the code can be used; and if you violate the conditions, you violate the copyright in the code. Google was negotiating a license with Oracle for Java but Java code must be operable with all Java platforms. Android is an open source platform. Google wanted to wall off the licensed code within its Android platform, which is supported by ad dollars. For this Google required a license, according to Oracle.
Google is asking the Supreme Court to decide that the Oracle declaring code should not be protected by copyright as it is similar to “instructions” and is not copyrightable subject matter, as copyright does not protect ideas, procedures, processes, etc..
Rick: OK, so if they lose on copyright, Google falls back onto fair use as their out. When I think about fair use, I think about commentary, criticism, parody and free speech, not software code. Are Sergey and Larry feeling their free speech rights are being impinged?
Nancy: Google was looking for a shortcut to get into the mobile market quickly and all the developers were familiar with Java. Instead of writing code from scratch, Google developers used many lines of the Java code and are now arguing that this code is not protected under copyright as it is only “functional.” But if the Supreme Court decides this code is subject to copyright, Google is asking that the use be declared fair use, asserting this declaration code was used “transformatively” as it was included (and not actually transformed) in a different platform – mobile smartphones – instead of desktops. Google also argued there was no financial harm to Oracle as Oracle had not yet entered the mobile smartphone market.
In determining whether fair use exception applies, the court is required to examine the four fair use factors in the statute. As a refresher the “four factors” are 1) purpose and character of your use: 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion taken; and 4) the effect of the use upon the potential market.
Rick: OK, let’s start with the transformative arguments being made by Google. Google is arguing that the use was in a different platform, smart phones and not desktops, and therefore transformed, correct?
Nancy: Yes, Google is arguing that Java only worked in the desktop market and Android is in the mobile smartphone market, using the term “transform” to mean that it was used for a different purpose instead of being altered to create a new work. The Federal Circuit court disagreed, and Google wants this decision overturned. Not only did the court find the purpose of the API packages to be identical in both platforms, but the court also found the amount of code copying to be more than necessary. Further, the court identified a “direct market impact” caused by the release of Android on licensed Java uses. Google asked the court to ignore the mobile market as Java was not yet a mobile platform. But the court looked at the harm to the potential market, and it would not be unlikely that Java would enter the mobile market.
Rick: For me, the biggest myths in fair use revolve around money. And the Amicus Brief filed by the DMLA and others in February 2017 said “this Court should apply the Ninth Circuit’s guidance in Los Angeles News Service and reaffirm its sister court’s important holding that in the Ninth Circuit, knowing appropriation and exploitation of a work that is otherwise available for a license fee is incompatible with Congress’ intent to provide a limited exception to copyright protection.” Nancy, please explain.
Nancy: The money factor is primarily the fourth fair use factor. In this instance, the Federal Circuit reversed the district court’s finding of fair use by Google because the use was commercial, there was a licensing market and there was harm to a market that Oracle intended to enter. The court is required to look at market harm, particularly if the second use usurps the current market or future markets. Just because a party has not yet licensed a work in that market does not mean there is no harm. The concept of copyright is that it is divisible and licensing allows a work to be used for many different purposes.
While the court may find fair use, even if there is a licensing market, that is usually reserved for uses where the commercial markets are not competing. For example, in Campbell, the sample of Pretty Woman was for a rap song that parodied the original. Usually a copyright owner does not want their work to be lampooned. So courts may more readily find fair use in a commercial setting if the use is a parody.
Rick: Google argues that its unlicensed use in the open Android platform is fair use because it serves the purpose of copyright in promoting the progress of science and the arts by unleashing many new uses. Does this fly?
Nancy: No, just because Android was successful does not mean that the use of code should be free. The fact that Android is free meant that Oracle was not able to license Java in the mobile market, after Google was able to go to market first by using important aspects of Oracle’s Java code.
Rick: There was a Google fair use argument about making it easier for software developers who were already familiar with the Oracle Java code. Seemed crazy, can you explain?
Nancy: This is part of the functionality argument, that this code was needed as the developers were familiar with it. It is like saying because it is faster and easier to start with the Java code, we should be able to take it if we don’t like the licensing conditions. Why should we create our own if everyone likes what is out there now?
Rick: Bottom line – this is a really important case. A decision favoring Google could really slam software developers, content creators and licensors if the court denies code copyrightability and further expands fair use to include an unaltered use of a work in a different but competing platform.
Nancy: Yes, that is why a coalition of creative associations, including DMLA, are joining an amicus brief to support Oracle and warn the Supreme Court that any fair use decision could have devastating effects when applied to works other than code – which will happen. And to point out where courts have misapplied the four factors over the past 25 years. This case gives the Supreme Court a unique and rare opportunity to correct unwarranted expansion based on the introduction of the transformative-use concept in the last case –Â Campbell v. Acuff-Rose Music, Inc. which was about music sampling but has since been applied by the courts across the board in all fair use cases. The brief will be filed February 19.