ipleaders

by Abhyudaya Agarwal

Programmers will know about the similarities between writing code for Android and creating a Java application. Did you know that there was a high-profile copyright litigation in the US courts around this against Google? Did Google violate Oracle’s copyright over the Java language? Well, the matter is still not settled, as this piece will show.

A recent ruling of the US Federal Court of Appeal in the Oracle America vs. Google case – this is the case filed by Oracle against Google for infringement of its copyright over the Java programming language. The case makes for an interesting study because we are living in a world where technology companies (e.g. Samsung, Apple, HTC) are engaged in patent wars and acquiring patent portfolios and copyright violation cases are very few – patents grant much stronger protection in comparison to copyright, which has been a very weak way of protecting software (incidentally, this is the most reliable way in India to protect software). This is because the copyright on software is over the code, and some other company can always find a different way or a different language to write that code and make that software perform the same functionality.  Patent protection, on the other hand, prevents another entity from achieving the same outcome or functionality itself.

The Google-Oracle case, however, was different – let’s understand what happened:

Java is a proprietary language developed by Sun Microsystems (which was subsequently acquired by Oracle), but is free language – that is, no license fees for are required for using it to develop applications or software. Sun allowed programmers to use the platform with the condition that they do not modify it (this has been well-explained in the recent book called Dogfight: How Apple and Google went to War and Started a Revolution by Fred Vogelstein, a former Wired reporter. The relevant license term of Java is represented by Clause (E)(IV):

The JDK must be reproduced in its entirety and without any modification whatsoever (including with respect to all proprietary notices) and distributed with your Publication subject to a license agreement that is a complete, unmodified reproduction of this Agreement

Google needed to modify the language for the Android platform, and was willing to pay up to USD 35 million in license fees to have the right to modify the Java Platform for Android, but Oracle refused to permit Google to modify the language. Google therefore, had no option but to structure a workaround, and it independently developed a new language for the Android platform, borrowing from the Java APIs. Oracle sued for copyright infringement.

The court’s decision depended on two issues:

1)      Whether Oracle had any copyright on the API.

2)      If yes, whether Google was entitled to a fair use defense.

The Federal District Court held in 2012 rejected that Oracle had any copyright in the first place over the Java API because it was ‘functional’ in nature (functional elements cannot typically be copyrighted because it denies third parties from achieving the same end result), and that the overall organization of names simply comprised of short phrases (anything that is copyrightable must have a certain minimum element of originality and uniqueness, and it is difficult to attribute that to unusually short phrases – this had happened in India with respect to Pepsi’s Yeh Dil Maange More slogan, which was denied copyright). The US court’s decision is available here.

The Court of Appeal, however, was of the opinion that the API was copyrightable despite being functional, because every computer program is functional, and because the organization of names satisfied the test of creativity (see the judgment here).

The three-judgment bench of the Court of Appeal, reversing the judgment of the Federal District Court, held that while Oracle cannot claim any copyright over APIs with the exact same SSO (Structure, Sequence and Organization), Java API was copyrightable and Google in creating Android had copied the same name organization as that of Java.

Once it was determined that Oracle had copyright over the Java API, it had to be determined whether Google was entitled to a fair use defense, which can excuse it from copyright infringement. For this, the matter has been remanded back to the district court, where Google will have to establish whether its deployment has been this was ‘transformative’ to qualify for the ‘fair use’ defense. You can read more about the implications for Android developers here.

This post is written by Abhyudaya Agarwal, founder of iPleaders, a legal education startup helping Indian universities launch highly accessible online courses and Utkarsh Agarwal, a law student at National University of Juridical Sciences (NUJS), Kolkata. Interested readers can find click here to find out more about how to use business law strategically in their professional lives.

(c) Published with permission from the author