Editor’s Note: This piece was originally published on Dec. 26, 2017. It has been updated to reflect new proceedings in the case. 

[Update: As reported on CNBC and many places elsewhere: On March 27, the Federal Appeals court in Washington DC reopened the long-running copyright fight between Google and Oracle and sent the case back to its originating court in California.  The U.S. Court of Appeals for the Federal Circuit (Washington DC), which heard the appeal, in effect overturned the jury decision, which is itself a little unusual; a further and ultimate appeal to the US Supreme Court is now more likely than ever.]

The Google versus Oracle story dates back a few years, but the copyright aspect of the case is relatively new, and brings in some larger questions than the run-of-the-mill “you stole my code” case.

As many outlets, including The New York Times  and Business Insider, have reported, back in 2010 Oracle initiated a copyright infringement action against Google, based upon Google’s re-use of several thousand lines of Oracle’s Java programming code. This code is used in accessing Application Programming Interfaces (API’s) whose software function is to bring in and ingest data from a variety of sources, on-the-fly. Google argued fair use, claiming that its copying of Oracle’s lines of code was relatively small and ‘transformative.’

During the current round of the case, the jury made two crucial findings:  first was that these API’s met the criteria of copyrightability – they were determined to be sufficiently original, expressive, and fixed. (The first trial in the case had decided that the APIs were not protected by copyright law, and the first appeals court reversed that decision.) Secondly however, the jury went on to find that Google’s use of Oracle’s copyright-protected APIs was excusable as a fair use, a finding which again pushed the envelope of what fair use is said to be.

On appeal of the jury decision, Google has argued that its use of Oracle’s lines of Java code is a “transformative use,” stemming from the fact that Java had not previously been tweaked for use on mobile devices. Many students of copyright law find that assertion troubling.  As one of Oracle’s lawyers argued, “You cannot take the most recognizable part of a short story, adapt it into a film and then defend that by saying: ‘You were in books, we were in films’.

The other key point Google raised on appeal focused on the 4th fair use factor, “effect on the market.” It argued that since Oracle was unlikely to go into the market for applications on mobile devices, this factor (according to Google) should be weighed in Google’s favor.  In response, Oracle actually has some evidence that it had written Java code for mobile devices – and that Google knew that – but had simply not commercialized the development.

Google generally finds itself arguing in favor of greater openness and of greater latitude in the use of the materials owned or controlled by others. Oracle tends to go with a stricter “license as you go” model, and is a member of the Business Software Alliance.

Google’s use of the “transformative” notion here seems a stretch to me, as does its argument that its use had and will have no meaningful effect on Oracle’s potential market. But those were questions for the jury, and now again for the appeals panel.

The larger implications of this case

Taken more broadly, this is not simply a case between quarreling giants. If Google’s use of Oracle’s APIs were generalized, such that use of this sort became considered presumptively ‘fair’, what becomes of software producers and their profit motive? As Immanuel Kant, and my mom (and actually Oracle too), have asked, “What if everyone did that?” If Google’s reasoning prevails, what will become of the business of software development? Are its incentives to produce in danger of being reduced?

It seems likely, then, that these larger questions are going to need to be sorted out, possibly soon.  As we go on into our digital future, we will constantly be surrounded by software, whether it resides in devices in our pockets, our vehicles, or our refrigerators. This fight, like earlier fights in copyright, is not so much about money as it is about control. In that way, it might almost be seen as a primarily political contest, of which the court actions are merely a single aspect.

Most likely, a decision on the appeal will arrive in the spring of 2018. And then, another round in a higher court? Seems more likely than not.

Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as a research consultant. He previously held directorships in both public and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. He is the owner/operator of Pyegar Press, LLC.
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