April 2021 will be remembered for the decision of the Supreme Court of the United States in the case of Google LLC v. Oracle America, Inc., which ruled in favour of Google. For some background, Oracle owns the copyright in Java and around 11,500 lines of this code were used by Google, without Oracle’s knowledge, to build a new software platform for Android mobile devices.
The Court recognised that the nature of Oracle’s code made it difficult to apply traditional copyright concepts, as the code in question was different from other types of code, insofar as it was not used to create computing tasks, but rather its value lay in its capacity to be used as a tool, by a skilled programmer, in the creative development process of new applications. For this reason, the case was analysed in light of the “fair use” doctrine, which represents an equitable rule of reason with the aim of avoiding rigid application of the law in cases where this could stifle the creativity which copyright law is intended to foster. Accordingly, in this case it was simply examined whether Google’s conduct constituted a “fair use” of the 11,500 lines of Oracle’s Java code, thereby freeing Google from copyright liability as it needed this code in order to develop its exclusive Android operating system.
The Court started by considering that the platform developed by Google was undeniably highly creative, as it was a free and open platform that would attract programmers familiar with its structure and function to use the tools found there free of charge, for the purpose of developing more Android-based applications for mobile devices.
Thus, in this specific case, the use of Oracle’s code by Google did not simply add something new, with a further purpose or different character. Rather, it formed the basis for the development of a new Android platform, in a different computing environment – i.e. mobile devices – and its use would favour the development of new applications. All of these factors led the Court to acknowledge the “transformative” nature of such use, which weighed in favour of the finding of fair use on the part of Google. Furthermore, the Court recognised that the lines of code in question were not used solely because of their “creativity or beauty”, but because they would allow specialist programmers to create new computing environments and only represented 0.4% of the entire platform developed by Google. Since those lines represented a very small portion of the whole Google code, this factor also weighed in favour of fair use. Also strengthening the argument of fair use on the part of Google, the Court further found that the copyrighted lines of code were inherently bound with the knowledge of programmers, which is uncopyrightable material, meaning that the nature of this code would intrinsically weigh in favour of fair use. Finally, the Court observed that the new platform was not in direct competition with the Java code, but rather was a totally new “system”. The Court consequently determined that its use would actually benefit Oracle, the copyright holder, as the code was being reimplemented into a different market.
In summary, the Court ruled that the use of Oracle’s Java code by Google was a “fair use” of that material. Thus, the legal conclusion of this case recognises that Google infringed Oracle’s copyright, but since the copying constituted a fair use of the protected code, Google was freed from copyright liability for that infringement.
This decision is giving rise to some controversy, as Google and Oracle were initially in negotiations for a licensing agreement for part of the Java code and it was only after the negotiations broke down that Google decided to use part of this code to develop the Android system, which would later become the largest mobile operating system in the world.
Therefore, it would be legitimate to question the conduct of both parties throughout these proceedings and whether the ends justify the means…
