Google vs Oracle: Copying to hurt copyright owners

In act 3, scene 2 of William Shakespeare’s A Midsummer Night’s Dream, Helena speaks of her friend Hermia as “little but fierce”. These words find home in recent United States Supreme Court battle between Google LLC and Oracle America over software copyright infringement.

The epicentre of the claim is 11,500 lines of code copied from a programming language developed by Oracle, and Google’s activities of 2005; the development of its mobile android operating system.

To enable its programmers develop an operating system, Google admitted to copying Oracle’s source code, the genesis of the suit filed by Oracle in lower courts seeking damages of $8 billion for copyright infringement.

Two District Courts ruled in favour of Google but reversed on appeal at federal court before a further appeal at the Supreme Court. The Supreme Court ruled in favour of Google.

There were three issues for determination: Whether computer software is copyrightable? Whether Oracle has copyright over the alleged lines? And whether Google can claim a defence of fair use?

Supreme court applied avoidance doctrine and chose not to answer the first question but went ahead and answered the second and third questions in favour of Google, re-defining the significance of doctrine of fair use.

Fair use, a win for Innovation?

Fair use canon is an exception to the exclusive right granted by copyright. It intends to balance the interests of copyright holders with the public interest. The expansive categories that fall under fair use comprise parody, commentary and critique, news, education and research.

And with that tens of technology companies, including Microsoft enjoined in the case as amici curiae (friends of court), they opined that it was/is an industry tradition to use, re-use and re-implement software interfaces written by others.

BLOW TO START-UPS

In their submission, such codes assist programmers to operate in familiarity resulting in seamless interoperability. Further, they articulated that if technology entities were to be denied that ability, start-ups would be extremely disadvantaged, hitting innovation and collaboration.

The court found it in favour of doctrine of fair use, validating Google and interested parties. It was its interpretation that doctrine of fair use allows for flexible application of copyright law to facilitate creativity. Simply put, fair use is the check and balance that ensures copyright promotes creativity and innovation.

Supplementary, the court held that the 11,500 lines of code in dispute were less than one percent of the total Oracle programme. Hence, the code was used in educating programmers for writing of novel programmes for Android smartphones.

License to copy?

It is tempting to view the judgment as a vindication for the copying norm in software industry; whereby organisations re-implement portions of copyrightable software in subsequent platforms without a licence. Conversely, is it fair use for an entity to consciously duplicate and make billions while it has an option and resources to independently create?

The answer to the above lies in the wholesomeness of statute and common law that the court failed to address in the first question; whether computer code is copyrightable.

It is absurd that the majority judges “assumed, without deciding,” not to apply traditional copyright in software, betting against odds of written law and precedents.

Had the court answered this question, in all likelihood, doctrine of fair use would be untenable.

The result of this judgment will distort the market in favour of large corporations and compromise competition.

Google’s activities permanently destroyed a market for Oracle (small) and, while at it, created a mobile operating system that generates billions annually. Thus smaller entities or start-ups’ poor market position is weighed against public benefit.

Where do we go from here?

In the foregoing, Google has escaped a billion dollar damages payout. Nevertheless the verdict may prove problematic and ambiguous. Elasticity given to fair-use doctrine by Supreme Court mixes questions of facts and law, and will certainly prove uncertain.

Pragmatically, the door is ajar for further weakening of copyright protection over software programmes with far-reaching retrospective bearing on software, technology and intellectual property trades.

As a result, it is now prudent for corporates that license third-party software to review those (especially open-source) agreements as they rely on copyright law to impose terms and conditions.

EMBOLDENED PLAGIARISTS

It is needful to determine whether some elements of the said software would fundamentally be fair use as per the decision. Consequently, we will see a rise in claims of fair use and emboldened plagiarists. Technology and start-up apologists will rave this as a win for innovation.

Conversely, entities will innovate with many trade secrets for fear of giving up all certain rights, occasioning less sharing, less ability to copy consequently crushing interoperability; business models will change.

If not for anything but decency, is it just to make billions at the back of cut-and-paste provided one changes the distribution platform?

In the courts view, fair use justifies copyright infringement and resultant market destruction.

And this is how you know the Supreme Court got it wrong; its judgment will lead to absurd results.

The writer is an intellectual property law expert and patent agent