Fair Use of Copyrighted Software




At issue is the scope of permitted fair use of copyrighted software.  I have written on the scope of copyright protection and contrasted it with patent coverage.  Copyright does protect an embodiment of an idea, but not the underlying idea.  Ideas are protected by the 20 year term of a patent, and then devolve into the public domain.  I have also written about copyright infringement and “fair use”.


This week, the Supreme Court will be hearing argument regarding whether copying 11,000 lines of software code can be considered “fair use” of copyrighted software.  That sounds like a lot of code.  However it is reported that it comprises less that 1% of the entire program.  See the link to an insightful summary of the dispute from the SCOTUSBlog.



There is a threshold issue that must be addressed before taking up the topic of fair use.  The scope of coverage of copyright protection (protecting the embodiment of the idea but not the underlying idea) has a wrinkle.  (Who would have guessed the law is less than clear on any topic?)  Copyright cannot be extended to protect the idea and the rub occurs when the embodiment (or expression of the idea) becomes the “idea, procedure, process, system, or method of operation”, i.e., the expression of the idea can comprise the exclusive use of the idea.


At issue is Google copying 11,000 lines of Oracle code (specifically Java code) in order to facilitate a user’s ability to operate an Android device with the Java platform.  Google argues that the specific lines of code operate as an interface to the mass of the Java platform.  Without the copied code (less than 1% of the total), it is not possible to access Java.  Apparently Google argues the entire idea represented by the Java program is locked up by the 11,000 lines of interface code.  Oracle argues that it is possible to create a new interface without copying, but it just won’t have the familiarity of the original Java software interface.


I side with Oracle on this issue of protecting software that has been copyrighted.  It may be a relatively small portion, but it is the key to the easy access to the entire Java program.  It sounds like Google wants to be excused from plagiarizing Oracle copyrighted software because it is so much easier.


Google can’t argue (in my opinion) that it is copying only a small part of the total when, at the same time, it argues that the 11,000 lines of code (interface) is so essential.  It sounds to me as if the interface is the prime code that deserves copyright protection.


Further, a substitute software code could be created that would accomplish the function of the interface.  However it would not have the same familiarity of use for user’s familiar with Java.


Note that in my opinion, the interface code is precisely the type of expression or embodiment intended to be protected by copyright.  It was the software developer’s choice to write the code, using a choice of labels and commands, as he/she wished.  Others can write code performing the same task, but use a different mode of expression.


This is not a matter of fair use.  Factors determining fair use include whether the work was transformative, the nature of the work, the substantiality of the copying and the effect on the market for the original work, i.e., the Java platform.


Here, there was nothing transformative in the Google work since it was verbatim copying of the Oracle Java code, the copied code was original to Oracle since substitute code could be written, the quantity of code was immaterial since it was an essential component and with the copied interface code access could be obtained by anyone.



In view of the difficulty in achieve patent protection for software and the importance of software, it is my opinion that software should be entitled to strong copyright protection.   See my previous article “When is Computer Software Patentable” and article “Patenting Software, Another Wrinkle”.


The pending dispute of Google v. Oracle has been billed as perhaps the most important copyright decision of the decade.  It will be worth watching for the decision.  Will code writers be left with any protection?  Fair use of copyrighted software should be narrowly construed.


© David McEwing, 2020