There's a whole lot of doomsday stories out there on the Internet about Oracle v. Google, the Android-Java copyright case. In reality, the ongoing trial, in which jury deliberations will begin shortly, is not going to provide clarification regarding incompatible, unlicensed reimplementations of application programming interfaces (APIs) either way.
Let me be clear about this: I believe in pluralism, and that's why people certainly have every right to campaign against intellectual property (IP) protection of the declaring code and structure, sequence and organization (SSO) of APIs. What I do take issue with is that the anti-API IP crowd consistently advocates a misguided approach. If they wanted to talk to lawmakers on Capitol Hill about copyright and APIs, that would be democratically legitimate. If they showed a case in which a major API owner abused its rights in an anticompetitive manner, I'd most probably support a call for compulsory licensing. But after that non-copyrightability idiocy that failed at the appeals court (and that the Supreme Court declined to buy), the anti-API IP movement now picks a second inappropriate vehicle: the "fair use" exception to copyright infringement.
I'm investing a lot in software development (you'll see the results later this year) and I will fight hard against anyone seeking to unreasonably weaken software IP for purely ideological reasons. App developers like me would suffer collateral damage if anti-API IP advocates got their way on the wrong basis. On the right basis, such as compulsory licensing, I wouldn't have a problem with it. But I'll continue to speak out against a carpet-bombing of software copyright that would render even the most creative program code unprotected. That's where I draw the line, and the longer this takes, the more people will likely agree with me.
I'm 100% independent from Oracle but 100% behind its motion (filed Tuesday) for judgment as a matter of law (JMOL) against Google's "fair use" claim. And after reading Google's opposition brief, filed last night, my support for Oracle's motion is undiminished and I may be even more determined now because Google's lawyers have filed something utterly absurd.
To all you dreamers out there: it's time to wake up and face the facts. And the law.
The only regard in which Google has a point is that Sun Microsystems' management, including one of the industry's worst CEOs ever, failed to make it consistently clear to Google that the way it incorporated the Java API headers into Android was against the law. And failed to enforce. That combination of inconsistencies and weakness, however, is still a far cry from Google having had a license or that Java was "fair game." In fact, even the very Google-friendly jury in the first (spring 2012) trial accurately concluded that Google didn't actually rely upon its conduct being permitted. The retrial jury would almost certainly arrive at the same conclusion, and Oracle has shown some strong evidence that proved Google believed it needed a license at least for the sake of legal certainty, but most of the willful-infringement evidence has been withheld from the current jury by an unfair, biased, partial judge an IP lawyer (and software developer) described as a "sore loser."
JMOL in Oracle's favor is more than warranted because no reasonable, unbiased jury could possibly side with Google on "fair use" in this case. Google bears the burden of proof, but its defense is incredibly weak. You can read this in excruciating detail in Oracle's JMOL motion, which I published a few days ago. What I'll do now is point out the key deficiencies of Google's "fair use" defense, factor by factor based on the four-factor test in 17 U.S.C. § 107.
1. "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"
There's no dispute about this being commercial. If Judge Alsup had followed the instructions from the appeals court more clearly, he wouldn't have stricken the adverb "purely" before the word "commercial".
The availability of (most but not even all of) Android on open-source terms changes nothing about this.
Commercial use doesn't automatically defeat a "fair use" defense, but it does up the ante for Google.
Commercial nature is one of several aspects of the purpose and character of the use. The one Google mostly stresses here (and no doubt it's going to be key on appeal) is whether its use was "transformative." And it's this area in which I find Google's argument most absurd. It provides a large part of the reason for the headline of this post calling Google's defense an insult to human intelligence.
The fact of the matter is that any given API header has the same meaning in Android as it had and continues to have in Java. There's no change of expression or meaning here whatosever. So Google is making a context-based argument: Android is a mobile operating system and it's open source. I'll say it bluntly what I think of this: transformative my ass!
First, Java was in use on a huge number of mobile devices (BlackBerry, Nokia, Samsung etc.) before Android. Some of those device makers have meanwhile adopted Android, and others have more or less gone out of business. But at the time Android was launched, no one needed Google to take Java to mobile phones, and even Eric Schmidt, Google's former CEO and now the executive chairman of its corporate parent (Alphabet), conceded that BlackBerry phones were smartphones.
Second, Java was already available on open-source terms (OpenJDK) at the time, but Google didn't want to have the so-called copyleft obligation of contributing derivative works back to the free and open-source software (FOSS) community. The open-source argument is furthermore ridiculous because Android is licensed on Apache terms, meaning that anyone can take that code and build closed-source, proprietary software.
2. "the nature of the copyrighted work"
Already at the time of the first trial, exceptional creativity in API design had been conceded. There's plenty of evidence for it in the current record, such as an admission by one of Google's own witnesses that API design is more of an art than a science.
The (flawed) jury instructions suggest that something functional (such as program code) gets weaker protection than something very creative. However, here we are talking about highly creative and expressive code.
This is also an aspect that could become a big topic on appeal because it threatens to vitiate all software copyright. I also think it's at least unbalanced to suggest weak protection of software in connection with the second factor without simultaneously clarifying in connection with the first factor that functional arguments for "transformative" use are generally weaker than creative arguments. The perfect "fair use" case involves, as § 107 says, "criticism, comment, news reporting, teaching (...), scholarship, or research." I also think that parody is at a level with that list. But if you take someone's program code and simply build another program, you don't criticize, ridicule, comment, report, teach or research anything. You just steal. Nothing more than that.
It's very rare that someone uses program code for the purpose of criticism/parody. One of the very few examples I know is only a few months old: the Trump programming language. I don't think it treats the candidate fairly, but that doesn't matter: this clearly is a humorous use of program code. Android, however, is just another program, not a parody, nor commentary.
3. "the amount and substantiality of the portion used in relation to the copyrighted work as a whole"
I don't blame programmers for misunderstanding this part, but I've also seen some inexcusable nonsense from at least one lawyer about this.
While there's a lot more implementing code in those Java APIs than declaring code (as in any computer program), this factor must be seen in light of the applicable case law. Taking the "heart" of a work is what Google has done here, but there's also plenty of case law that shows even a minor percentage of an overall work is often enough to defeat a "fair use" defense. For example, the Supreme Court held in its 1985 Harper & Row v. Nation Enterprises ruling that even just copying a Gerald Ford speech manuscript of 300 words taken from a biography was enough to constitute copyright infringement.
Here we're talking about 11,000 lines of code, more lines of code than NASA used to control the Apollo moon landing.
Oracle's JMOL motion provides additional examples from the case law.
4. "the effect of the use upon the potential market for or value of the copyrighted work"
Java may still be popular in some other areas, but Oracle has shown plenty of evidence of losing business from customers such as Samsung (which is now the biggest Android device maker). Now, Google (and potentially Judge Alsup) would like to make a distinction between Java ME and Java SE. The stolen code has been taken from Java SE; Java ME was the mobile edition. But the question of whether Java ME was a derivative work of Java SE or vice versa is ultimately not going to decide this case.
Key holdings in Google Books case
Last month, the Supeme Court declined to take a look at the "Google Books" case. Earlier on, the Second Circuit had ruled in favor of Google's related fair use defense, and as I explained at the time, the rationale actually supports Oracle's case against "fair use" in connection with Android. I'd like to just quote and briefly discuss two key passages from the Second Circuit's Google Books ruling:
"Google's division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyright interests)"
Note particularly the part in parentheses. Google Books basically provide a teaser that can generate book sales. But Android does not use only so little of Java that programmers would ultimately prefer the real thing.
"Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs' books [...])"
Here, too, the part in parentheses is key. Android crossed the line because it did become a competing substitute for Java-based mobile platforms.
The body of evidence is far stronger now than in 2012
There was enough evidence on the table back in 2012 that I called Google's "fair use" defense a fairy tale. But now there is so much more evidence, especially but not only regarding market impact, that no jury should even have to deliberate. This is a no-brainer. It's unfair use. As unfair as it gets. It may require an appeals court, though, to arrive at the correct result.
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