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Google v. Oracle
- 1. Google v. Oracle “TheCopyright Case of the Century(?)” Prof. David Opderbeck Seton Hall University Law School © 2020 David W. Opderbeck Creative Commons Attribution / Share-Alike
- 2. The Issues • AreAPIs copyrightable? • If so, was Google’s use of Oracle’s JAVA API’s in its Android OS copyright infringement or fair use?
- 3. Copyright in Computer Code •Computer code IS copyrightable • The standard for copyright protection is much lower than for a patent: originality not novelty • Copyright subsists upon fixation. No formalities required
- 4. Copyright in Computer Code •But: Copyright protects expression not ideas. • Section 102(b) of the Copyright Act: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
- 5. Copyright in ComputerCode and Oracle’s Claim in its APIs • Infringement doesn’t require exact copying but with computer software issues of substantial similarity can arise • Here, though, no dispute that Google used Oracle’s API code • API’s, after all, are meant to be used • Oracle offered commercial licenses for some of its APIs and open source licenses for others
- 6. Google’s First Defense: Functionality •Idea / Expression dichotomy has deep roots in copyright law: demarcation between copyrights and patents • “Merger” doctrine • Limits on copyright in short phrases • “Scenes a faire” • “Conceptual separability” and other functionality tests • Abstraction / Filtration / Comparison
- 7. Google’s Second Defense: FairUse • Fair Use is part of the Copyright Act. A feature, not a bug, of Copyright • Fair Use Factors: • Purpose and Character of the Use • Is the use “transformative?” • Nature of the Copyrighted Work • Amount and Substantiality of the Portion Used • Effect on the Market
- 8. Procedural History • Googleat first lost at a jury trial, but trial judge ruled for Google that APIs were not copyrightable • Oracle appealed and the Federal Circuit Court of Appeals reversed • Google won in a second jury trial on fair use • Oracle appealed and the Federal Circuit reversed • Supreme Court accepted certiorari on both issues
- 9. Federal Circuit Decision: Functionality •Federal Circuit rejected all of Google’s functionality arguments • Courts have long recognized copyright protection in computer code • Google really is making policy arguments that patents, rather than copyrights, are the only IP that should protect most computer code
- 10. Federal Circuit Decision: FairUse • Purpose and Character of the Use • Commercial use weighs against fair use • Google’s business model: • Android is licensed for free under an open source model • But, it’s not really “free” – Google’s license terms and Android’s architecture direct advertising revenue to Google
- 11. Federal Circuit Decision: FairUse • Purpose and Character of the Use • Transformative use: Google argued that selecting some Java APIs and implementing them in Android was transformative • Raises question of when a use is “transformative” for fair use purposes vs. a prohibited “derivative work” • This is a big policy question in relation to APIs • Federal Circuit found the use not transformative
- 12. Federal Circuit Decision: FairUse • Nature of Copyrighted Work • The more creative a work is, the more this factor weighs in favor of the copyright owner • The more factual the work is, the more this factor weights in favor of the defendant • APIs are mostly functional, so this factor weighs in Google’s favor
- 13. Federal Circuit Decision: FairUse • Amount and Substantiality of Portion Used • Use of a substantial portion of the work weighs against fair use • But use of only a small portion does not necessarily prove fair use • Only 170 lines of Java code were necessary to write in Java but Google used 11,500 lines of Java code • But the Java libraries overall contain about 2.86 million lines of code
- 14. Federal Circuit Decision: FairUse • Amount and Substantiality of Portion Used • Court found what was copied was at least qualitatively significant because it allowed the functionality of the Android platform • Another big policy question for fair use and APIs: quantitatively small amounts of code with qualitatively big function?
- 15. Federal Circuit Decision: FairUse • Effect on the Market • Supreme Court has said this is the most important factor • Interplay with factor 1 and transformative use • District court found that prior to Android, Java was only deployed for desktop and laptop computers • Federal Circuit found this was factually wrong, and also legally misplaced – potential market for smartphones obviously was enormous
- 16. At the SupremeCourt • Over 45 Amicus Briefs supporting Google – open source developers, startup industry advocates – and Microsoft – law professors, advocacy groups • Over 35 Amicus Briefs supporting Oracle – industry associations, other law professors and advocacy groups
- 17. Big Policy Questions •Should APIs be copyrightable at all? Are APIs only functional and not expressive? • Are APIs unique because of the “translational” role they play between applications, systems, and platforms? • Does industry practice about keeping APIs open matter to the legal analysis? • Are these questions Congress needs to address rather than the Court?
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