Fair Use of Software



Google v. Oracle:  Does Google have the right to verbatim copy 11,000 lines of copyrighted Java SE code?  If yes, then how will a small software developer’s original software be protected from “rip-off”?  What is fair use of software?  See my post on the Google dispute and “fair use”.  This is supposed to be the most significant software case of the decade.  This dispute is now before the Supreme Court.



I listened to the extensive questioning of the Google and Oracle attorneys by the Supreme Court.  (The Supreme Court proceedings are now recorded as a result of the remote hearings due to COVID-19.  A court decision will be published in approximately 4 months.)  In response to questions (Tuesday, October 6, 2020) Google conceded that the Java code was an original work and valuable because it was so popular.  Google thereby conceded the code was properly protectable as a copyrighted work.


Google next tried to justify the copying since the copied code comprised the keys to the Java software and if unable to copy it, Oracle would have a monopoly on Java as an essential resource.  An analogy was suggested of having a copyright on the QWERTY keyboard with a resulting monopoly upon all keyboards.  Some of the Justices pointed out the QWERTY keyboard was not the most efficient and other versions could be developed that allowed letters to be manually selected for typing.  Based upon the comments of the Supreme Court Justices, the monopoly argument (merger doctrine) was not successful.  The Justices grasped that the Google could have invested the time and money to develop their own (and possibly better) code that would accomplish Google’s goal, i.e., making Java accessible for use on Android phones.  It was discussed that Apple developed their own code (with considerable expense and time) and did not copy from their competitors.


Although not specifically named, reference was made by several Justices of the Linux royalty free license open source software model.


Google then attempted to justify the blatant copying since it was “transforming” use of Java code on to mobile phones and it would help facilitate development of apps on the Google Android smart phone platform.  This is one of the factors justifying copying as “fair use”.  The other factors are nature of the work, substantiality of the copying  and the effect on the market for the original work.


The “transforming use” argument was dismissed by analogy of transforming code form desktop to laptop or tablet platforms.  Oracle correctly noted that transforming film from movie projectors to computer streaming would still involve infringement of the original film copyright.


Google attempted to make much of an earlier jury decision that the copying constitute fair use.  However the Court was buying it and questions focused upon whether to return the dispute to lower appeal court with instructions to make its own decision of fair use.  Further legal arguments were discussed whether fair use was a matter of law to be determined based upon viewing the facts most favorably to the copying party.



Fair use of software.  In spite of some industry opinion that made its way to the Supreme Court’s attention that the “sky will fall” in the software development industry if Google was prohibited from copying the “necessary” Oracle code of Java SE, it appears that Google will not be able to get away with blatantly copying 11,000 lines of code.  Oracle has asked for $9 billion in damages for copyright infringement.


It appears that software developers will be able to rely upon copyright protection for their code.  The Supreme Court seem very aware of the justification for protecting original works and creativity.


© David McEwing, 2020