“If the fair use defense is expanded to include what is otherwise considered commercial plagiarism, there will be a chilling effect on innovators who bear the cost of original content development.”
Google v. Oracle America, a case pending before the United States Supreme Court, is a seemingly never-ending battle, since 2010, between two Silicon Valley behemoths. But now that battle may finally be nearing its conclusion. On January 7, the first of the amicus briefs were filed, signaling that both sides are marshaling their arguments for one final push toward the finish line.
The dispute centers on Oracle’s allegation and multibillion-dollar damage claim that Google’s unauthorized use of Oracle’s Java API (“Application Programming Interface”) package in its Android operating system infringed Oracle’s copyrights under the statute – 17 U.S.C. 107(1). As a result, Oracle has sued Google for an eye-popping $8.8 billion, covering the lost revenue that Google’s alleged theft caused.
The Fair Use Fight
In its defense, Google has asserted that “fair use” allows limited use of copyrighted material without having to first acquire permission from the copyright holder. This fact, they claim, justifies their “reuse” of 37 API packages. However, the U.S. Court of Appeals for the Federal Circuit has previously held that the declaring code and the API packages’ structure, sequence, and organization are entitled to copyright protection as well.
Rightly, Google’s “fair use” defense has been soundly rejected by the Federal Circuit due to Google’s unlicensed commercial use of copyrighted content. According to the Federal Circuit, Google merely copied the material and moved it from one platform to another without alteration, which is not a transformative use. Given the evidence of actual and potential harm, “unrestricted and widespread conduct of the sort engaged in by” Google would result in “a substantially adverse impact on the potential market for the original” and its derivatives. In short, Google’s actions harmed Oracle, and now it needs to pay up.
Regarding Google’s arguments that copyright protection of the Java API package will destabilize the software development industry, which heavily relies on cross-platform interoperability and “open source” programs, the Federal Circuit similarly disagreed. They did so in large part because Google was aware that the Java API package was not open source.
Open source software programs are generally free and allow developers to modify and share because its design is publicly accessible. But that isn’t Oracle’s business model. Instead, Oracle gives out its API scripts for free to app developers but charges a licensing fee for competing platform developers and hardware manufacturers with strict compatibility requirements on licensees. But because of Google’s refusal of third-party interoperability of its Android operating system on other Java programs, Google wasn’t granted a license to use the Java API packages. Yet, Google decided to violate both the copyright and licensing restrictions by “reusing” Java’s code.
Silicon Valley Speaks Up
These facts, though, haven’t stopped a number of Silicon Valley companies from announcing their support for Google in the case. In doing so, though, they are arguably betraying the original intent of copyright law, enshrined in Article I, Section 8 of the U.S. Constitution, which allows “authors and inventors” the exclusive right to their respective writings and discoveries.”
These supporters of Google contend that there is a “settled understanding” about what comprises fair use in the software industry, and any change “would have a profoundly destabilizing effect on the entire industry.” But in this instance, they are wrong. For years, Oracle has maintained a copyright over its Java program, choosing who to allow access to the company’s proprietary software. Forcing companies to relinquish creative control over their own software, it seems, would be far more destabilizing to the market than allowing Oracle to continue protecting its own IP.
The Oracle Model Fosters Competition
Supporters of Oracle—the Business Software Alliance, a trade group, and the Solicitor General Noel Francisco—argue a far more convincing point that “computer programs are like any other copyrightable subject matter: if they are original, they are entitled to full copyright protection.” But rather than operating as monopolists, Oracle is doing the opposite. Through copyright protection, they’re fostering competition by preventing companies like Google from cutting them out of the market entirely—precisely what Google had attempted to do in the case at hand.
In his brief before the Federal Circuit, Solicitor General Francisco wrote that Google “copied 11,500 lines of computer code verbatim, as well as the complex structure and organization inherent in that code, in order to help its competing commercial product,” adding that Google’s “unauthorized copying harmed the market for respondent’s Java platform.” Indeed, Google stole properly licensed code and then explicitly used it to undercut Oracle—a substantial competitor. Why shouldn’t Google be held responsible?
The Supreme Court Must Avoid a Chilling Effect
If the fair use defense is expanded to include what is otherwise considered commercial plagiarism, there will be a chilling effect on innovators who bear the cost of original content development. In concurrence with the rulings by the Federal Circuit Court, the Supreme Court should uphold the inventor’s fundamental Constitutional right to copyright protection. Moreover, in the digital age, the Supreme Court’s clear guidance on copyright enforcement is necessary to limit variable definitions in future industry litigation that may arise on this subject matter.
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