The Supreme Court ruled that the use of 11,500 lines of code for Oracle’s software programming language by Google was a “fair use”, a decision that may have implications for how copyrighted material is used without permission as a “ fair use ”in the future.
Decision 6-2 (read here) was closely watched by the legal teams in the entertainment industry, as the Motion Picture Association warned that Google’s interpretation of the law “would threaten the legitimate rights of copyright owners, to the detriment of the public. ”They warned that a broader interpretation of fair use could allow unauthorized copies of popular TV shows and films.
In the majority opinion, Judge Stephen Breyer wrote that Google’s use of the Sun Java API code was transformative, a basic ingredient in determining whether parts of copyrighted material can be used without permission as “fair use”.
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“Here, Google’s use of the Sun Java API seeks to create new products. It seeks to expand the use and utility of Android-based smartphones, ”wrote Breyer. “Its new product offers programmers a highly creative and innovative tool for a smartphone environment. Insofar as Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with the creative ‘progress’ that is the basic constitutional objective of copyright itself. “
What is “fair use”? For courts, it is largely a matter of assessing unauthorized uses on a case-by-case basis. The Copyright Law applies four factors in the assessment of “fair use”: the purpose and character of the use, the nature of the copyrighted work, the quantity of the material used in comparison to the entire work and the effect that the use has value of copyrighted material on the market.
Google’s case was different from other copyright cases, as it involved the use of Oracle code so that programmers could use it to work with their Android platform. Breyer wrote that Google “reimplemented a user interface, taking only what was necessary to allow users to put their accumulated talents to work on a new and transformative program, Google’s copy of the Sun Java API was a fair use of that material as a matter of law. “
In an amicus petition filed with the court last year, the Motion Picture Association said that “if Google’s twisted approach to transformation was applied to traditional expressive works like films and was given undue weight at the expense of other important factors, the law of copyright and fair use defense would get off track. ”
“If Google’s unprecedented approach to transformation were to become law, a producer who makes an unauthorized feature film from the hit TV series The Game of Thrones (HBO 2011) could claim that the use was new, innovative and socially valuable and, therefore, a fair transformative use – an absurd legal position. “
But Breyer also moderated the decision with a suggestion that it does not change the way the courts consider whether the unauthorized use of copyrighted material is “fair use”, something that has protected everything, from satirists in The Daily Show in the use of news clips for book reviewers citing passages from a job.
Breyer wrote that “it does not nullify or modify our previous cases involving fair use – cases, for example, that involve ‘counterfeit’ products, journalistic writings and parodies. Instead, we recognize here that the application of a copyright doctrine, such as fair use, has long proved to be a cooperative effort by legislatures and courts, and that Congress, in our opinion, intended it to continue. “
In a dissent, Judge Clarence Thomas, along with Judge Samuel Alito, wrote: “The Court comes to this unlikely outcome largely because it clearly ignores the antecedent issue before us: the software code in question here is protected by Law of Copyright? Most intend to assume, without deciding, that the code is protected. But his analysis of fair use is totally inconsistent with the substantial protection that Congress has given computer code. When skipping the issue of copyright, most disregard half of the relevant legal text and distort their analysis of fair use. Properly considering this statutory text, the Oracle code in question here is subject to copyright, and Google’s use of this copyrighted code was anything but fair. “