Ahead of the Curve: Fair Use Concepts and the Oracle-Google Lawsuit

There are few issues more confusing in the general populace than the concept of ?fair use? in copyright law. ?The verdict in the Oracle-Google lawsuit over infringement of Oracle?s copyrighted code is yet another example of how the concept of fair use is vaguely understood. ?Here are some basics on fair use in copyright law.?

Copyright Law

The legal provisions for?copyright protection are as old as the US Constitution itself.?

In Section 8, paragraph 8, of the Constitution, Congress is given the power to enact copyright protection in the following terms:?

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Congress has done this over the years by enacting copyright, patent, and trademark laws that secure exclusive rights to inventors and creative artists.?

However, those exclusive rights have limits, the most obvious of which is the ?limited time? frame for those rights. ?All copyrights and patents have expiration dates, at which point the invention or creative expression becomes part of the public domain.?

Furthermore, there are limits to the exclusive rights held by inventors and artists, the most prominent of which is the ?fair use? clause.?

Fair Use

The intention of the fair use concept, as established by legal precedent, is to balance the exclusive rights granted to a creator with the right of the public to criticize, discuss, and distribute the basic concepts of protected works. ?

The most obvious example of this concept is the ?quotation? of a protected work, either by a critic or news reporter, or other person who ?repeats? the copyrighted work as part of critique or review.?

If such quotation of a protected work were protected, it has been felt that?the free speech rights granted by the First Amendment would be frustrated by the rights granted to a copyright owner.?

However, the extent and boundaries of the rights granted by copyright law are often a very vague and gray-zone area.?

The exact boundaries defining where the exclusive rights of copyright end and the fair use rights of the public begin have historically been determined in court on a case-by-case basis, and not precisely defined in legislative terms.?

The Oracle-Google lawsuit is destined to become the latest court case defining this boundary of software copyright laws.?

Fair Use Law?

Title 17 of the United States Code defines copyright law and the rights granted to inventors and creators of expressive ideas.?

The concept of fair use, as applicable to all situations, is defined in Chapter 1 of Title 17, in section 107.

This section is extremely short and vague, however. We have reprinted the entire section defining fair use in the code.?

?107 ? Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the?fair use of a copyrighted work, including such use by reproduction in?copies or phonorecords or by any other means specified by that section, for?purposes such as criticism, comment, news reporting, teaching (including multiple copies?for classroom use), scholarship, or research, is not an infringement of?copyright. In determining?whether the use made of a work in any particular case is a?fair use the factors to be considered shall include?

(1) the purpose and character of the use, including whether?such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in?relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

As can be seen, the concept of fair use is both extremely vague and broad reaching.?

All of these core concepts, taken together, are generally considered in a court case involving whether a copyright infringement constitutes fair use.?

Many people, particularly persons posting copyrighted material on YouTube or other Internet sites, seem to think that fair use can be determined simply by whether a person is charging for access to the copyrighted material. If they are not charging for access, they think, the reproduction of copyrighted material is fair use.?

This line of thinking, however, involves only the first point of the above four aspects of fair use.?

Such a criterion is not enough to define a fair use situation of copyrighted material. The ?purpose? of the reuse of copyrighted material is only one of the factors to be examined.?

All of the four concepts listed above need to be considered when determining fair use of copyrighted material.?

Note: ?An extremely good single page ?check list? summary of these concepts, as published by the Columbia University Library, can be found at:?http://copyright.columbia.edu/copyright/files/2009/10/fairusechecklist.pdf.?This checklist is meant to be used as a guideline, however, and is not a definitive legal document.?

Particular Situations Defined in Legislation?

Although the definition of fair use is vague in the code, there are additional sections that further define fair use in particular situations, some of which are listed below:?

• the right of a library to make copies?
• the right of a purchaser of copyrighted material to resell that material without permission from the copyright owner,?
• the rights of educational institutions to use copyrighted material for teaching
• the use of copyrighted material in jukeboxes and radio transmissions?
• the retransmission of copyrighted material over digital satellites and cable television systems

Each of these particular situations is precisely defined in various sections of the code, as it has been amended over time.?

The Definition of Fair Use by Court Cases ?

Most particular situations have been determined by cases brought to court, however, and such cases then become precedent for further defining the concepts of copyright and fair use.?

For example, the right of owners of VCRs to videotape televised copyrighted materials was established by a lawsuit brought by Universal Studios against Sony, when the Betamax VCR was first introduced. Universal claimed that home taping of video movies was an infringement of the exclusive right of copyright granted to the creator of the movie or television show.?

This particular court case lasted three years and involved a series of decisions in lower courts that first ruled in favor of Universal Studios, then Sony, then back to Universal.?

In January of 1984, the Supreme Court eventually ruled that home use of a VCR, which was not used for commercial ventures nor was recopied and distributed (whether commercially or not) constituted fair use of the copyrighted material. ?

The concept of fair use has, as this example illustrates, been defined over time by particular court cases.?

The Oracle-Google lawsuit is, therefore, yet another in a long line of legal precedents defining the concept of fair use.?

The Oracle-Google Lawsuit?

The much publicized Oracle lawsuit against Google generally summarizes the jury?s verdict as ?mixed.??

However, such an assessment is far from the last word on this issue, as that particular verdict involved only Oracle?s claims of copyright infringement, not patent infringement.?

Oracle originally argued that Google had infringed on?seven patents held by Oracle, all involving Java programming. Over time, those claims were reduced to just infringement on?two patents. In addition, Oracle claimed copyright infringement on Google?s use of 37 Java APIs (application programming interfaces).?

During the course of the trial, however, the case was split into two separate phases, with the copyright infringement claims being litigated and a verdict reached prior to any proceedings regarding the patent infringement claims.?

On Monday, the jury ruled on the copyright infringement claims only. The very same jury has now begun hearing arguments on the patent infringement claims.?

The jury ruled that Google actually did copy 37 separate APIs used in Java programming, but was unable to reach a decision on whether such copying was protected under the fair use doctrine, which Google claimed in defense, having admitted they did copy the APIs.?

What Is an API?

The purpose of an API is to define the way in which a program interacts with another program.?

Google?s Android system uses Java APIs because most developers write code for applications in Java. The API allows an Android device to receive and send requests to other Java programs in a standardized manner.?

Each of the 37 Java APIs that Oracle claims under copyright consists of lines of code. However, Oracle has not claimed that Google actually copied the exact lines of code that constitute the API. Instead, the claim is that the structure and format of the API is copyrightable and that Google?s use of the API constitutes infringement.?

Google, however, claims that the use of the APIs is fair use by applying the four basic concepts of fair use:?

• that the purpose of using the APIs is actually to further the use of Java, which is in Oracle?s interest;
• that the nature of the APIs is actually that they are to be copied?
• that the APIs are only a small portion of the Java language, not the entirety;
• that there is no impact on the licensing of Java by Oracle; in fact, that it encourages others to license Java in order to write applications for Android devices?

The actual Google code for the Android is not written in Java at all; only the structure of the APIs themselves are claimed as infringement by Oracle, which were copied by Google engineers.?

There were actually nine lines of code copied exactly by Google, which have since been rewritten and removed from Android systems, and were claimed to have been included ?by accident.? ?

The question of whether Google?s use of the Java APIs is copyright infringement or permitted under the fair use doctrine was too complex for the jury to reach a decision.?

Whether this becomes an important factor in the patent infringement phase of the trial remains to be seen.?

Conclusions:?Are APIs Fair Use? Or Even Copyrightable?

At Briefing.com, we cannot render an opinion as to whether unlicensed use of APIs for Java applications is copyrightable or whether it constitutes fair use.?

A core concept behind the copyright principle is that ideas cannot actually be copyrighted. Only the expression of an idea can be copyrighted.?

This makes a core question in this case whether APIs, by their very nature, can be copyrighted.?

It is clear that the exact code used to create an API can be copyrighted, but whether the resulting structure of the API is copyrightable is unclear.?

Google actually argued this line earlier in the trial. The judge rejected this line of argument, but reserved the right to render such a decision by himself at a later point in the trial. ?Whether he does so or not is anyone?s guess.?

Both parties have agreed that the patent infringement phase of the trail will be conducted quickly. ?Expectations are that this phase of the trail, which began on Tuesday, will last only two weeks.?

This means that another jury verdict on the patent infringement claims is likely before Memorial Day.?

The only certainty at this point, however, is that the case will be appealed to a higher court, no matter what decision is reached by the jury in the patent infringement claims or what the judge might rule about whether APIs are copyrightable.?

Comments may be emailed to the author, Robert V. Green, at aheadofthecurve@briefing.com

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There are few issues more confusing in the general populace than the concept of ?fair use? in copyright law. The verdict in the

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