- The epicenter of the claim consists of 11,500 lines of code copied from a programming language developed by Oracle and Google activities in 2005; the development of its Android mobile operating system.
- To allow its programmers to develop an operating system, Google admitted to copying the source code of Oracle, the genesis of the lawsuit brought by Oracle in lower courts asking for damages of 8 billion dollars for violation of the right of ‘author.
In Act 3, Scene 2 of William Shakespeare’s A Midsummer Night’s Dream, Helena refers to her friend Hermia as “small but fierce.” These words find their place in the recent U.S. Supreme Court battle between Google LLC and Oracle America over software copyright infringement.
The epicenter of the claim consists of 11,500 lines of code copied from a programming language developed by Oracle and the activities of Google in 2005; the development of its Android mobile operating system.
To allow its programmers to develop an operating system, Google admitted to copying the source code of Oracle, the genesis of the lawsuit brought by Oracle in lower courts asking for damages of 8 billion dollars for violation of the right of ‘author.
Two district courts have ruled in favor of Google, but overturned on appeal to the Federal Court before a new appeal to the Supreme Court. The Supreme Court ruled in favor of Google.
There were three questions to be answered: whether computer software is protected by copyright? Does Oracle have any copyright on the alleged lines? What if Google can invoke a fair use defense?
The Supreme Court applied the avoidance doctrine and chose not to answer the first question, but answered the second and third questions in favor of Google, redefining the meaning of the fair use doctrine.
Fair use, a victory for innovation?
The fair use canon is an exception to the exclusive right granted by copyright. It seeks to strike a balance between the interests of copyright owners and the public interest. The broad categories that fall under fair dealing include parody, commentary and criticism, news, education, and research.
And with those dozens of tech companies, including Microsoft, who were summoned in the case as amici curiae (friends of the court), they felt it was / is an industry tradition to ” use, reuse, and reimplement software interfaces written by others.
BREATH AT START-UP
In their submission, such codes help programmers operate in a familiar manner, resulting in seamless interoperability. In addition, they said that if tech entities were denied this capability, start-ups would be at a huge disadvantage, which would hurt innovation and collaboration.
The court ruled in favor of the fair use doctrine, validating Google and the interested parties. According to his interpretation, the fair dealing doctrine allows flexible application of copyright law to facilitate creativity. Simply put, fair dealing is the control and balance that ensures that copyright fosters creativity and innovation.
In addition, the court estimated that the 11,500 lines of code in dispute represented less than 1% of the total Oracle program. Therefore, the code was used to train programmers to write new programs for Android smartphones.
It is tempting to see the judgment as a justification for the copy standard in the software industry; whereby organizations re-implement portions of copyrighted software on subsequent unlicensed platforms. Conversely, does it make sense for an entity to consciously duplicate and earn billions when it has the option and resources to create independently?
The answer to the above lies in the salubrity of the statute and of the common law which the court did not address in the first question; whether the computer code is protected by copyright.
It is absurd that the majority “assumed, without deciding” not to apply traditional copyright to software, betting against the probabilities of written law and precedent.
If the court had answered this question, in all likelihood the fair use doctrine would be untenable.
The outcome of this judgment will distort the market in favor of large companies and undermine competition.
Google’s activities have definitely destroyed a market for (small) Oracle and, meanwhile, created a mobile operating system that generates billions a year. Thus, the weak market position of small entities or start-ups is weighed against the public interest.
Where do we go from here?
In the above, Google escaped a billion dollar damages payment. Nonetheless, the verdict can be problematic and ambiguous. The elasticity given to the fair dealing doctrine by the Supreme Court confuses questions of fact and law, and will certainly prove to be uncertain.
Pragmatically, the door is ajar for a further weakening of copyright protection for software programs with a far-reaching retrospective impact on the software, technology and intellectual property professions.
As a result, it’s now prudent for companies that license third-party software to review these agreements (especially open-source) as they rely on copyright law to impose terms and conditions.
It is necessary to determine whether certain elements of said software would constitute fundamentally fair dealing in accordance with the ruling. As a result, we will see an increase in fair use claims and emboldened plagiarists. Tech and start-up apologists will make it a victory for innovation.
Conversely, the entities will innovate with many trade secrets for fear of giving up all certain rights, causing less sharing, less copying capacity, therefore, crushing interoperability; business models will change.
If it is not for anything other than decency, is it just to earn billions at the end of the copy and paste provided that we change the distribution platform?
In the opinion of the courts, fair use justifies copyright infringement and the resulting market destruction.
And that’s how you know the Supreme Court got it wrong; his judgment will lead to absurd results.
The author is an expert in intellectual property law and a patent agent