“What progress have we made on the concept of fair use in 25 years? It seems maybe not very much. The Court arguably failed to appreciate the nuances of the Java API in Google v. Oracle similar to the way the Court glossed over the concept of sampling in Campbell v. Acuff-Rose Music.”
Most commentators agree that Google v. Oracle is the most important copyright decision of the last 25 years (since Campbell v. Acuff-Rose Music). But what if the Court got it wrong? The Court has not always done well with issues of technology (the Sony v. Universal “Betamax” case being an exception), and the majority decision in Google v. Oracle appears to be more of the same. For many reasons, the powerful dissent from Justices Thomas and Alito may be the better opinion.
The 2 Live Crew Comparison
To provide the appropriate backdrop, let us first consider the Court’s last foray into copyright fair use. In 1994, music sampling was the topic du jour, and the Court was faced with deciding whether 2 Live Crew’s alleged parody of Roy Orbison’s “Oh, Pretty Woman” was a fair use. The Court found that it most likely was, even though 2 Live Crew’s “Pretty Woman” sampled the original song’s main guitar riff, and also used the opening lyrics and vocal hook. Prior to the song’s release, the band’s record label sought a license from Orbison’s publisher, Acuff-Rose Music, who declined. 2 Live Crew released the song anyway. Justice Souter, writing for a unanimous Court, found that the 2 Live Crew song was almost definitely a fair use parody (and thus did not infringe Orbison’s copyright in the original work), and remanded to the district court for a final determination. Justice Kennedy filed a concurring opinion. Thereafter, the case settled, with Acuff-Rose agreeing to license 2 Live Crew.
However, 2 Live Crew’s “Pretty Woman” was not really a parody in the same way that Weird Al Yankovic’s “Eat It” is a parody of Michael Jackson’s “Beat It.” Weird Al did not sample from Jackson’s hit at all and did not use any of Jackson’s lyrics. Today, there is general agreement that sampling a song, as opposed to creating a “cover” version of it, creates a derivative work and requires approval of the publisher and/or record label. The Court missed this subtle distinction in Campbell v. Acuff-Rose Music at the time, but there was always hope that the Court would provide clarification the next time it took up a fair use dispute.
Fast forward to 2005 – Google is developing a new software platform for mobile phones called “Android.” Google wants software (i.e., Apps) for the platform so that it can compete with Apple’s iPhone. It decides to ground the platform in a language called “Java”, which many programmers of the day already knew how to use. Google approaches Oracle’s predecessor-in-interest (Sun Microsystems) several times about licensing the Java Application Programming Interface (API) for Android, but ultimately decide to build its own platform. In doing so, Google copies about 11,500 lines of code from the Java API. The copied code is known as the “declaring code.” The rest of the story you already know, Google releases the Android operating system in 2008 to huge success. Oracle eventually brings suit for copyright infringement, and the Supreme Court finds in Google’s favor. Sound familiar yet?
If you want to better understand “declaring code,” I would suggest that you go listen to the opening guitar riff in Orbison’s “Oh, Pretty Woman”; think of that as the “declaring code” for the song – it is the structure that gives the rest of the song meaning. Others might suggest that the “declaring code” is more like a musical chord (an “A” chord, or a “G” chord), to which no one person can claim exclusive rights; herein lies the crux of the dispute in Google v. Oracle.
The majority in Google v. Oracle assumed – without opining – that the “declaring code” was protected by copyright. The Court then went on to find that Google’s use of the “declaring code” in the Android operating system was a “fair use”, examining each of the factors below.
1. The Purpose and Character of the Use
The ‘purpose and character’ factor looks to whether the defendant’s use “is of a commercial nature or is for nonprofit educational purposes.” The majority sidestepped the commercial inquiry to a degree, choosing instead to focus on whether Google’s use of the “declaring code” was “transformative.” The Court found that it was, noting that “Google’s use of the Sun Java API seeks to create new products.”
The dissent argued that Google’s use of the code was entirely commercial; it made $18 billion from the Android operating system in 2015 alone. The dissent also pointed to the majority’s comment that “Google used the copied declaring code ‘for the same reason’ Oracle did.” This begs the question: if Oracle’s use was not transformative, why was Google’s? On this point, Justice Thomas noted that the Android operating system was a derivative work, not a transformative one (much like the guitar riff sample of “Oh, Pretty Woman” in 2 Live Crew’s “Pretty Woman”). Because Google’s use of the “declaring code” was clearly commercial in nature, the dissent argued, this factor should have favored Oracle.
2. The Nature of the Copyrighted Work
In a somewhat strange turn, the majority found that the “declaring code” was more functional in nature than other types of software code, and therefore should be given lesser protection. With this backdrop, the majority held that Google should be given more leeway in copying.
The dissent made two excellent points in response. First, Justice Thomas noted that Congress rejected “categorical distinction[s]” regarding software in the Copyright Act, and the majority’s classification of “declaring code” as being inferior to other types of code was improper. Second, the dissent remarked that the “declaring code” is inextricably bound with corresponding “implementing code” in the Java API, a point which the majority conceded. Justice Thomas argued that since one cannot exist without the other, the “implementing code” and “declaring code” should be treated exactly the same. The dissent contended that the majority should have treated the “declaring code” the same as any other piece of software, and if it had, this factor would have favored Oracle.
3. The Amount Used
The majority went for simple arithmetic here – the Court found that the entire Java API was 2.86 million lines of code, and that Google only used 11,500 lines, or less than one percent (1%).
Justice Thomas criticized the majority’s math, positing that the “the proper denominator is declaring code, not all code.” On this point he is arguably correct – Google sought the functionality provided by the “declaring code,” not the entire Java API. So, it would have been more appropriate to compare only the declaring code. The majority conceded that Google copied “virtually all the declaring code…” from the Java API. Hence, the Court should have held that this factor favored Oracle.
4. The Market Effects
The majority was quick to dismiss the effect that Google’s use of the “declaring code” in the Android operating system had on the smartphone market.
The dissent pointed out that Google’s use of the code damaged Oracle in at least two significant ways. First, it devalued Oracle’s existing Java licenses with third party smartphone and tablet manufacturers like Amazon and Samsung. For example, after the release of Android, Oracle’s license agreement with Samsung “dropped from $40 million to about $1 million.” Second, Google eliminated Oracle’s ability to further license the Java API for use in the smartphone market. In short, no one wanted the Java API after Android became available. Justice Thomas concluded his comments with the observation that “Google decimated Oracle’s market” in copying the code, and that if this factor indeed favored Google “something is very wrong with our fair-use analysis.”
Have We Learned Anything?
So, at the end of the day, what progress have we made on the concept of fair use in 25 years? It seems maybe not very much. The Court arguably failed to appreciate the nuances of the Java API in Google v. Oracle similar to the way the Court glossed over the concept of sampling in Campbell v. Acuff-Rose Music. The decisions share many parallels, most notably, a defendant that sought to license the plaintiff’s work was denied and proceeded with copying anyway. 2 Live Crew copied the main guitar riff (and other elements) from “Oh, Pretty Woman” much the same as Google copied the “declaring code” from the Java API. In both cases, however, the Court found in favor of the copier. If the Court in Google v. Oracle had found that the “declaring code” was not protectable by copyright (because it is entirely functional), that might have been easier to swallow, but that is not what happened.
It is possible we will have to wait another 25 years for additional enlightenment from the Court on the concept of fair use, which would be unfortunate given the important role that computer software plays in all of our everyday lives. Hopefully, the decision does not discourage software developers from continuing to innovate APIs, Software Development Kits (SDKs), and similar platforms. For the time being at least, Google v. Oracle is the law of land, despite some pretty convincing arguments from Justices Thomas and Alito.
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This article was edited on April 15 to correct the author of the Court’s opinion in Campbell v. Acuff-Rose Music.