Post written by: Brandon Butler, SPN’s Law & Policy Advisor
This term the Supreme Court will hear arguments in Oracle v. Google, a major software copyright case. SPN members should keep a close watch on this case, as it could shape the scope of copyright protection for software as well as the application of fair use to software. Indeed, unless the court is deadlocked (a 4-4 tie in a previous case, Lotus v. Borland, prevented the Court from setting any nationwide precedent), this will be the court’s first software copyright opinion ever, and (unless it avoids the fair use issue) its first fair use opinion in a quarter-century.
The facts of the case are difficult to explain to lay audiences, although folks with expertise in software may have an easier time understanding them. The DisCo Project blog has an excellent landing page for the case with a synopsis of the key facts and links to key documents, if you want a deeper dive. The core fact in the case is Google’s use of parts of the Java software (developed by Sun, which was subsequently acquired by Oracle) in its Android mobile operating system. The Java elements that Google used were from the platform’s API, a set of specifications for giving instructions to Java’s library of software functions. A developer could use the commands specified in the API to write code that would work on any machine running Java, regardless of the underlying operating system, and many developers were familiar with the commands and the logic of the Java API. Google’s use of the Java API calls made Android much easier for developers to learn. Google wrote its own implementing code—the part of the software that actually performs the operations specified by the API commands. Nevertheless, Oracle claims that its copyright in Java includes the right to control Google’s use of the API calls, and is seeking massive damages for copyright infringement as a result.
In response, Google has made two main arguments. First, Google argues that the Java elements it used in Android are not protected by copyright. Copyright certainly does protect software works generally (software is considered a “literary work,” because code is a kind of text), but like all copyrighted works, not every element or aspect of a piece of software is subject to the copyright monopoly. In more traditional copyright subject matter, like novels or musical compositions, there are elements so basic that they are considered part of the common stock of knowledge that all creators should be free to use—words or musical notes, for example, or common tropes or genre elements. If these elements are copied in isolation from protected aspects, there is no infringement.
In the software context, a key limitation on copyright is the exclusion of “any idea, procedure, process, system, method of operation, concept, principle, or discovery” that may be embodied in a work. Software interfaces like the APIs at issue in this case could certainly be considered “systems” or “methods of operation”—taken together, the API calls create a system, and that system is also a method to operate the underlying software. If the court sees the API that way, then copying the API is not an infringement, even if it is part of a copyrighted work.
Google’s second argument is that even if these Java elements are protected by copyright, copying them in the Android OS should be considered a fair use. As SPN members and allies know well, fair use is the flexible user’s right to use copyright-protected works without permission when what you do is socially valuable and doesn’t unfairly damage the copyright holder’s interests—in other words, uses that further the underlying purpose of copyright, to “promote progress.” Google argues that reusing the interface elements from Java facilitated the creation of a valuable new open source operating system that was easy for developers to use, and that Android did no harm to Java as a commercial product. The Java elements that Google used are also a quantitatively small part of the overall Java package, and of the resulting Android OS, as well.
The case has had a winding path in the courts. The trial court sided with Google on both issues, with the judge accepting the argument that the APIs were not subject to copyright and a jury agreeing that Google’s use was fair use. However, the appellate court reversed both decisions, siding instead with Oracle. The matter is further complicated by the fact that the case was heard by the Court of Appeals for the Federal Circuit, a specialist court that typically hears patent cases, and that has come under heavy criticism for taking a protectionist stance that the Supreme Court has rebuked repeatedly in recent years.
SPN members and allies should care about this lawsuit for a number of reasons. First, software elements like these are often involved in interoperability, because making new tools play well with older software can require copying interface elements from the older work. Preservation professionals who make tools derived from functional software elements could find themselves facing increased legal risk if the Supreme Court sides with Oracle and finds that functional elements are eligible for copyright protection.
Second, fair use is a necessary element in the legal toolkit for software preservation. We know from the Code of Best Practices in Software Preservation that fair use can apply at every step in a typical software preservation workflow, enabling the copying, distribution, adaptation, performance, and display necessary for preservation and scholarly access. The Code relies heavily on the strong judicial consensus about how fair use generally works, which in turn relies heavily on the concept of “transformative use.” In part because of the power that this concept has had in helping user communities vindicate their rights, some major copyright industry groups have lobbied hard for years to roll it back. It would be unusual and unnecessary for the court to embark on a wholesale re-work of fair use in the context of this case, but they are the Supreme Court, after all, and they can do whatever they want, especially with a law that is so thoroughly ‘judge-made.’
Even if the court does not roll back the entirety of the fair use revolution that has taken place over the last 25 years, it could say something specifically about how fair use applies to software, an issue that has rarely been litigated, and never been heard at the Supreme Court level. The possible implications for SPN members could therefore be quite serious, indeed.