hiddenMay 27, 2016 19:34:20 IST
By Asheeta Regidi
The Jury in the ongoing Google vs Oracle case gave a finding that Google did not infringe Oracle’s copyrights yesterday. While the case is far from over, with a promise of an appeal by Oracle soon, this first decision is a huge relief for the software industry.
The Google vs Oracle dispute revolves around Oracle’s Java API packages. These packages were made available to software developers through a license. Google incorporated 37 of these API packages in its Android operating system without a license from Oracle. Hence, the copyright infringement suit followed in 2010. The outcome of this case will have far-reaching implications not just for Google but for software development in general.
Free use of APIs is crucial for innovation in the software industry
The case revolves around certain pieces of software, known as Application Programming Interfaces (APIs). APIs are sets of pre-written computer programs which are used to perform common computer functions. These can be used by software developers while writing software code, without the need to write every bit of code from scratch. For example, the Android operating system has its own set of APIs, which can be used by any app developer to develop an app that is compatible with it.
APIs are used extensively in the development of software today. A restriction imposed on the free use of these APIs can greatly hamper creativity and innovation in the software industry, forcing software developers to write software code from scratch in order to avoid copyright infringement.
Think of it this way, if you’re designing a program for typing, like Word, you would have to write the code that would accept keyboard input from the user, code to display the text on your screen and so on. If you take advantage of a pre-existing keyboard API, that’s one bit of code that you don’t have to implement and programming is full of such examples.
(Also read: Why Google winning ‘fair use’ lawsuit against Oracle is good, bad and ugly)
Original and creative APIs can be copyright protected
Under the law of copyright, any written work, including a software program, that is original and creative can be copyrighted. Even once it is copyrighted, aspects of it that are far too basic are not protected by the copyright. For example, though a book in itself may be copyrighted, the basic plot, or the idea behind the story cannot be copyrighted. In the case of APIs, there is a difference of opinion regarding how basic APIs are. Given the extensive use of APIs in software development today, a large portion of the industry would stand to benefit if APIs were considered to be too basic to be copyrighted.
In the Google vs Oracle case, initially APIs were held to be too basic to be copyrightable. This position was, however, overruled on appeal, with the Court finding sufficient originality and creativity in Oracle’s APIs to be protected by copyright. This initial ruling was seen as a huge setback for software developers, who would now have to consider if they infringed any copyrights through the use of APIs.
It’s important to note however, that this ruling does not mean that all APIs are automatically protected by copyright. The ruling did not hold that APIs in general could be protected by copyright, but that APIs which are original and creative enough, like Oracle’s APIs, can be so protected. This still leaves some breathing space for software developers, for if the APIs used by them are found to be too basic to be protected by copyright, then they would not have infringed any copyrights.
A ‘transformative’ use of APIs will be protected as ‘fair use’
Once it was established that Oracle’s APIs were copyright protected, the next question that arose was whether Google made ‘fair use’ of the APIs. This was the point on which the jury ruled yesterday. ‘Fair use’ is a concept under copyright law which allows people to use a copyrighted work without the owner’s permission under certain situations. For example, if a copyrighted work is used for the purposes of research or education, it will be ‘fair use’. In the absence of a license, Google’s use would be protected only if it has made ‘fair use’ of Oracle’s APIs.
The rules regarding what constitutes fair use vary from one country to another. The US, in fact, offers much larger grounds of fair use than those found under Indian law. While the grounds of the jury’s findings are yet unavailable, the instructions to the jury are indicative of their reasoning. The jury appears to have applied what is known as the ‘transformative work’ rule.
Under this rule, if the work that is accused of infringing copyrights is found to be so completely different from the original copyrighted work that there can be no comparison, then there is no question of copyright violation. For example, if the work created is used for a completely different purpose from the original, it may be considered to be transformative.
The jury appears to have based their verdict on the huge difference between the Android operating system created by Google and the original purpose of the Java API packages that were used. A similar test can be found under Indian copyright law, in R.G. Anand vs Delux Films and Ors. Software developers who have created entirely different works using APIs may therefore find respite under this ruling.
Will the use of open-source APIs enforce the open-sourcing of derived software?
While this case will be watched closely until it reaches its conclusion, this case will only address unlicensed use of APIs. Oracle’s API licenses were open-source licenses, which would have required the derived software, in this case the Android operating system, to also be licensed as open-source software. It would have been interesting to see if a company using open-source APIs would also have been forced to license the derived software as open-source software in enforcement of this provision. In this case, Android happens to be open-source software.
This important issue, however, will therefore remain unanswered in this case.
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.
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