[This post has ben authored by Ajeeth Srinivas, a 4th year student at School of Law, Christ University, Bangalore.]
The first Part of this Article analysed the judgement in the case of Google v Oracle, in suppoet of the minority opinion. The first part analysed the implications of the judgement on the idea-expression dichotomy and Google’s contentions regarding the merger doctrine, by understanding the structure of Oracle’s JAVA software, and noting the relationship between the declaring code and the implementing codes. This part analyses the second aspect of the majority judgement, and supports the views of the dissenting judges on the issue of Fair Use.
Introduction to the Fair Use Considerations
Fair use of copyrightable work in the United States is permitted subject to the tests laid down in the legislation under 17 U.S.C. 107. These four tests in sequential order are: the purpose and character of the use; the nature of the copyrighted work; amount substantially copied; and the market effects of such use. The Four-part test to be used when assessing fair use in the USA has been somewhat misconstrued by the majority, in this judgement. All aspects of this test have been analysed in the dissent, which is of extreme value to the promulgation of copyright principles. It is also of value to note that the majority’s application of these tests are neither in the sequential order as mentioned in the legislation, nor in the order of importance as established by courts in cases such asHarper & Row Publishers Inc v Nation Enterprises. This piece will analyse these four aspects, in the order as has been followed by the SCOTUS majority, to better understand the intricacies of the judgement laid down.
Nature of the copyrighted work
When analysing the nature of the work in which copyright subsists, fair use must be permitted when the work is informational rather than creative. The law usually finds that when the work in question has lesser to do with the individual expression, but more to do with the functionality of the work, fair use must be granted, and this is noted by the dissent. The majority has held the declaring code to be functional, without analysing its expressive tendencies and its capability to be produced uniquely. The dissent finds that the majority has undeservedly used this factor to the benefit of Google – not just in terms of fair use, but also to create an unfair distinction between the declaring code and implementing code. The majority uses this to demarcate declaring code to be functional, because its value is inherently tied to use by third parties. The definition of “protectible computer code” under the legislation includes codes that are used in a computer code to either directly or indirectly to bring about a specific result. In the case of an API, the implementing code is the direct factor and declaring code is the indirect factor, both of which are incapable of working independent of the other. This is because the implementing code, being invisible, cannot convey expression, whereas the declaring code is visible and centred around the user. The declaring code must be designed in a specific manner, to allow future software developers to use the code to produce specific results and is therefore created to be easy to understand and use. The implementing code on the other hand, merely uses the declaring code to produce a result of choice. An important factor to be noted here, is that in the United States, Section 101 of the Copyright Legislation specifically stipulates that the declaring code and the implementing code cannot be inextricably separated because one cannot function without the other..
General copyright jurisprudence in the USA declares this test to be the one which affects the decision of the court the least. However, this distinction – resulting in the Court concluding that declaring code is not copyrightable, merely because it is, to some extent, bound together with uncopyrightable ideas – causes the consequent interpretation of the other three principles to be fundamentally flawed. To further illustrate this, consider a novel. The novel, being based on fictious circumstances, is innately bound by certain themes, which are inherently uncopyrightable. Not allowing such a book to be copyrighted merely because the characters interact with some uncopyrightable themes is a convoluted interpretation of the scene-a-faire principle. (See: Thomas Walker v Time Life Films). This is essentially what the court has committed to in principle. Merely because the declaring code is based on certain functional items does not preclude its copyrightability, especially when other forms of expression based on such interpretation are possible.
Among the most important considerations in this case are the market effects that have been inflicted on Oracle. Android, claiming over 71% share in the market today, is the most popular operating system, comprehensively beating out its closest competitor, Apple’s iOS. Upon releasing Android, the market value of Oracle substantially fell. Amazon obtained a 97.5% discount in its contract with Oracle, and Samsung’s deal with Oracle dropped to about $1 Million USD from a previously staggering $40 Million. With Google’s Android system, much of Oracle’s Java was available for free, causing businesses to find no need to embed the Java software vide a contract with Oracle.
The Majority holds that there were no detrimental market effects to Oracle that were caused by Google’s use of the JAVA API. In order to prove this, the majority merely relied on the jury’s finding in Oracle v Google that Oracle might not have been competent enough to enter the smartphone market. This mere assumption of Oracle’s difficulty in penetrating the market is not enough to preclude the massive profits that Oracle could have gained by licensing such software, and such reasoning is in line with the precedent in Campbell v Acuff-Rose Music Inc. Google’s four attempts to license the same is proof enough of this statement. As noted by the dissent, the majority simply skating around this discussion and claiming that it would be overprotection if Oracle was granted copyright, is not enough to negate the market losses caused to Oracle.
Purpose and Character of Use
In deciding whether the work was commercial and transformative, the majority has merely stated that the commercial nature of the work does not rule out fair use even if transformative enough. Having already discussed the potential losses billions in losses, the author seeks to analyse the second aspect – i.e., is Google’s iteration transformative enough? As laid down in Campbell, and the recent case concerning the Andy Warhol Foundation, a work is only transformative enough if it adds “something new with a new purpose or characteristic, and alters the first work with a new expression, meaning or message”. In the present case, the majority has adhered to the fact that the purpose of Oracle and Google creating their works was the same. Considering this, the very definition of transformative works in US jurisprudence vide its present use against Oracle, is rendered as follows: the use of the same work, for the same purpose, but purely to create a new device, is transformative enough. This definition stands to negate set tenets of copyright law. The mere conversion of works from one format to another, now, is transformative.
The present iteration of the definition of transformative works has implicitly achieved this result. This issue has, in fact, been noted by various amicus briefs filed on behalf of Oracle, by organisations such as American Publishers Association, Journalism Law Professors, and the News Media Alliance. They stated that the application of the doctrine of transformative works to partially non-expressive pieces, such as declaring and implementing code, would result in problematic results in the application of copyright law to other kinds of work since it would substantially change the manner in which this doctrine functions.
Amount Substantially Copied
The majority held that the mere copying of 11,500 lines of work, out of 8.6 million lines of code, was fractional in quantity and therefore not substantial. On this point, the author disagrees with the majority opinion. Copying the “heart” or the primary part of a work is also deemed to be heavily against any fair use claim (Also see- Harper & Row Publishers Inc v Nation Enterprises). Google, in the present case has copied the “heart” of the API, i.e., the declaring code. Therefore, the majority ought to have viewed it from this perspective, and not just from a fraction-of-the-whole paradigm. It is the declaring code which forms the primary portion of the code and copying that is certainly not a mere fair use of the same, since it functions as a market substitute to Oracle’s product.
This is once again a case of David v Goliath. Companies and massive corporations such as Google have the capacity to copy such work and move on unhindered. The majority also holds that this judgement was necessary in order to promote the progress of sciences and protect the rights of programmers who use the language [pg 25 of the judgement] (also see here). This approach is unsound. Yes, the protection of fair use enlists support for programmers to build on the Java code. However, the SCOTUS’s approval to copy codes of another corporation might just have the opposite effect. Small-time developers, start-ups and commercial coders would in fact be disincentivised from creating new programs and codes since nothing now hold corporations back from merely applying the fair use doctrine in light of newer developments or flashier products. SCOTUS, seemingly attempt to prevent overprotection, might have just caused copyright law in terms of written works to become flawed, for this judgement would not just apply to computer codes, but have far reaching implications in the arena of copyrights. This does beg the question (as was posed by the justices during oral arguments) – why couldn’t Google simply not just write its own declaring code?