In this Article, Brihan Madhav, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the famous Oracle v. Google case in respect to copyright law.

Introduction

Background

The case was filed in 2010 and it is safe to say that it has been a roller coaster ride for both the companies. The case has gone to various courts and hence for the benefit of the readers here is a basic flowchart of the case history. For the purpose of this paper, we will consider only the Copyright aspect and not the patent part.

District Court of Northern District of California

Ruled that Google had committed infringement however they were not able to determine if this infringement fell within the definition of ‘fair usage’ exception.

Appeal in the United States Court of Appeals for federal circuit

It overturned the decision of the District Court and held that APIs are indeed copyrightable. But it sent the matter to the District Court for a second trial. The reason for asking for a second trial was that in the first trial there were facts relating to ‘fair use’ that had not been brought up. Hence it was not possible for the Appeals Court to decide on that issue.

Second District Court trial

The Court ruled in favour of Google and held that its use of APIs was within the fair use. Because of this exception, Oracle was not entitled to damages.

Appeal in the United States Court of Appeals for federal circuit

This Court is the latest and has come as a win for Oracle. The Court ruled that Google’s use of the API’s was actually commercial and not governed by the fair use doctrine.

The case will now go to the District Court for the determination of damages that Google would be paying to the Oracle for violation of Copyright.

Facts

The case between Oracle and Google relates to two aspects. The first aspect is with regards violation of Patent and the second aspect is related to the Copyright. The subject of copyright is Java Application Programming Interfaces. Application programming interface(API) is to a computer program what a cell is to the human body. The APIs are also a source of communication. Google was the developer of Android software system and while developing the Android they had used Java APIs. This was the basis of the claim of Copyright violation by Oracle against Google in the year 2010.

What is a Copyright? What is the law of copyright?

Copyright is an intellectual property right. It is an incorporeal and intangible right. It is a right that is given to the author/creator or innovator of the subject matter. For example, if a person writes a book, the author has the copyright. Essentially copyright consists of two types of rights:

1. Moral rights: it is the right of the author to not have his work morally distorted or changed
2. Economic rights: it is the right of the author to receive remuneration for the authorized usage of his work.

Copyright and software

Copyright definitely exists for literary work and music etc, after the Berne Convention the same was provided for computer software also. Any unlawful reproduction of software would come under the ambit of the Copyright. This means that nobody can use the software without the permission of the original author of the software. Hence in this case, if the Java API belongs to Oracle and Google conducts unauthorized use of the same, they will be liable for copyright infringement.

Fair Use

Fair use is an exception to the right of copyright. The doctrine of fair use is contained in Section 107 of the US Copyright Law. In order to assess whether there has been a fair usage the Court must consider essentially four factors:

1. What is the purpose of the usage?
2. What is the nature of the copyrighted work?
3. What is the portion of work that has been used?
4. What is the effect of the fair use on the potential market?

The significance of this doctrine is that it can be used as a valid defence by Google against Oracle. The Second Trial has already held that Google has infringed the copyright of Oracle. If the defence of fair use is established by Google then they will not be liable for copyright infringement

Judgment by the District Court in the Second trial

The Court has put to test the usage of the API’s by Google by comparing it to the 4 factors of fair usage.

1. Purpose of usage: The Court has held that the purpose of the use of Java API was not for research purposes but was in reality completely commercial. It must also be kept in mind that Google was earning a lot of revenue through advertising. It was also shown that the Google had used the APIs for the very same purpose that they were written by Oracle. This factor went against Google.
2. Nature of work: The Court has held that the APIs were functional in nature. In addition to this, it was also seen that the APIs were to be created in a particular manner in order that they must be used. This factor went in favour of Google. However, the Court did note that this was not a very important factor.
3. Amount of Copy: The Court stated that Google’s use of 11500 lines of code was a substantial amount. Not only that the Court observed that this was more than the necessary amount. Google did not require this much reproduction for the objective of writing Java. It was decided that this factor went against the fair use.
4. Effect on potential market: The Court observed that the infringement has caused a lot of damage to Oracle who were launching their own smartphone operating system. In addition to this, the Court noted that unauthorized infringement was never a good precedent to set. This factor went against the fair usage.

Hence the Second District Court held that the factors against fair usage were more than the factors in favour of fair usage. This is the reason the Second District Court held that Google’s use of API’s was not to be considered as fair usage but was, in reality, a copyright infringement. The Court gave a decision in favour of Oracle.

What are the potential implications of the decision?

The decision will not kill Android as it has become a market leader in the field of Operating System. In addition to this Google released Nougat in the year 2016. This is their own special type of Java software that was released to the world.

However, it cannot be said that the decision will have no implications at all. The judgment forces all the software developers to either rewrite the programs or include changes. This is a difficult and time-consuming process in addition to being expensive. It must also be kept in mind that API’s that were used are the basic ones on the basis of which other more advanced software’s are made. Basically, if the judgment remains as it is, software is likely to become more expensive.

One of the most important aspects of the Judgments that was given by Justice William Alsup in the first trial in District Court was that they recognized that API’s were not subject to copyright. They noted that granting Oracle this right would put all innovations and collaboration that were made on the basis of this API’s are not safe.

We also find that after this decision many other competitors are making their own new programs. For example, Microsoft has introduced ‘.Net’. However, not everyone has the power to do this.

Another implication of the case is that reproducing a minimal amount of code in a much larger project will not eliminate the fear of an infringement suit. In the future what the Courts will focus on is not the amount of copy but merely the importance of the work in the context of the whole project.

Another possible implication is that the decision might lead to a lot of frivolous litigation in the future. Giving copyright to API’s means that every new software maker will have to consult legal supervisors before making new software in order to ensure that there are no impending lawsuits in the future.

Another implication is that this judgment might cost Google a lot of money. Oracle has claimed damages amounting to nearly 9 billion. The case has gone for a third trial for the awarding of damages. If the Court decides to pay 9 billion it would be a huge loss to Google in addition to setting a bad precedent for the future.

Conclusion

The case of Oracle and Google might well be the landmark case relating copyright law in relation to software and API’s. The case has gone on for a very long time and is now going in for its third trial at the District Court. The most recent judgment of the Court has granted copyright to API’s and this has a huge impact. The decision means that there may be a lot of frivolous litigation in the future. In addition to this, it might lead to a lack of creativity. Further, it means bad news for Google as they may be looking at damages in the billions. Hence the author does not personally agree with the most recent judgment and feels that the decision given in the First trial by the District Court should be upheld.