On Monday, the Supreme Court ended a 2005 copyright infringement case between Google and Oracle based on the Copyright Fair Use doctrine. In the ruling, the Court handed Google and software developers a ruling which will have rippling effects for years to come. In the ruling, the Supreme Court ruled that Google’s copying of Oracles computer code was fair use and thus non-infringing. In determining that Google’s use was permissible fair use, the Court looked at the fair use factors in an attempt to balance the copyright holder’s monopoly rights versus the harm which the prohibition might have on society.
Oracle America owns the rights to Java SE, a computer platform, which uses Java programming language, a computer code. To help java programmers develop apps for the Android platform, Google copied roughly 11,500 lines of computer code from the Java program which is owned by Oracle. The entire Java code has around 2.86 million lines of code. The copied lines were part of a tool called an Application Programming Interface or API. The API is the interface between different programs and using it allows programmers to write code faster. In the software industry, it is not uncommon for developers to use the API of one program to write code for another program. Having to write new code for every new program is like having to reinvent the wheel for every car you build. So software developers often use portions of APIs to help speed up the software development process.
The US Constitution
In general, the original, creative expressions of computer code is protected as copyrightable subject matter which is protected by the US Constitution. Specifically, the US Constitution says that in order to promote the progress of science and useful arts, authors and inventors can have the exclusive rights to their writing and discoveries. See Art. 1 Sect. 8, cl. 8. This exclusive right under copyright law is balanced against the harm which the exclusive right will have to society. Traditionally, this is taken into consideration in terms of how long the copyright lasts. Currently, for individuals copyrights last for the life of the author plus 70 years.
Copyrightable Subject Matter
Not all written works are subject to copyright protection. Generally, to be copyrightable, a creative expression must be original and fixed in a tangible medium of expression. If a work is not fixed in a tangible medium of expression, it is not copyrightable. In addition, this expression must not be functional. The creative expression can not extend to any idea, procedures, process, system, method of operation, concept, principle or discovery. Many of these are protected as patents. However, ideas are generally unprotectable.
Computer code has previously been held to be protectable as copyrightable subject matter. However, it is not always the case. In some cases some portions of the computer code is not protectable as copyrightable subject matter. The court seemed to draw a distinction between declaring code which the Court believed was functional and implementing code. By drawing an analogy between a computer keyboard and special key shortcuts, the Court said like the keyboard, declaring code simply provided some shortcuts. The court seemed to indicate that declaring code may not be copyrightable subject matter in the future. In the end, the court side-stepped the issue on whether computer code is copyrightable. Instead, the court turned its focus on whether Google’s conduct was actionable.
Monday’s ruling left open the issue of whether computer code, including declaring code and implementation code, is copyrightable.
As stated above, the copyright laws provide exclusive rights to the copyright holder. These include the right to prevent others from reproducing, distributing, displaying, performing and creating derivative works. By copying Oracle’s computer code, which was the creative expression of Oracle, Google violated one of Oracle’s exclusive rights. The exclusive right to reproduce the computer code was owned by Oracle. The lower court found that Google infringed Oracle’s exclusive rights under copyright law. Copying of Oracle’s computer code by Google was an infringement of Oracle’s exclusive copyrights. The lower court also ruled that Googles’s conduct was to extensive and not excusable as fair use. The Supreme Court, however, decided to revisit the fair use evaluation.
Copyright Fair Use, A Defense to Infringement
In the US, Copyright Law allows for the limited use of copyrighted material under a doctrine of fair use. The Copyright Fair Use doctrine is a judicial doctrine which allows for the unauthorized use of copyrighted material if the use falls under the principle of fair use. In determining whether something qualifies as fair use, the court looks at a number of factors. In the past, this question was a question determined by a jury. However, a court can disregard a jury’s determination and look at these factors de novo, according to the Supreme Court’s ruling.
The four guiding factors which the court should evaluate in a fair use analysis include:
- Determining the purpose and character of the use;
- The nature of the copyrighted work;
- The proportion of the amount and substantiality used in relation to the copyrighted work as a whole; and
- The effect of the use on the potential market for or value of the copyrighted work.
In reviewing these four factors, the Supreme Court found that Google’s use was permissible fair-use. The copied lines were part of the user interface and according to the court included uncopyrightable ideas. The use was transformative in that Google used the copied code to create a new mobile operating system. The copied portions of the code represent only about 0.4% of the total code. The Court believed that the use by Google was not a market substitute for Oracle’s use and that Oracle would benefit from Google’s work. In addition, the Court found that preventing Google from doing that which it did would cause creativity-related harms to the public.
Some analysts believe this case represents a departure from the historical application of the fair-use doctrine and may be helpful for computer programmers and the tech industry in general. How this case will be applied remains to be seen. Certainly the Court’s ruling left open the question of whether computer code with declaratory instructions will be protectable.
If you have questions about protecting computer code or how fair-use might apply to a Copyright infringement concern, please contact one of our attorneys.