INTERVIEW: MR. THOMAS JOSEPH ON GOOGLE v. ORACLE

The April-May edition of Au courant features an interview with Mr. Thomas Josheph, Associate at Spice Route Legal, Bangalore, wherein he discusses the Google v. Oracle dispute.

MR. THOMAS JOSEPH

(Associate at Spice Route Legal, Bangalore)

Mr. Thomas Joseph is an IP and TMT lawyer, currently working as an Associate at Spice Route Legal, Bangalore. He has close to 7 years of extensive experience in the field of IP, media, and entertainment, and has worked with leading broadcasters and media houses like Sony Pictures Networks India Private Limited and Yash Raj Films Private Limited.

He is a 2013 graduate from the National University of Advanced Legal Studies (NUALS), Kochi, and has a keen academic interest in Intellectual Property Law (among other facets of Technology and Media laws), evinced by his specialised LL.M in Intellectual Property Laws from the National Law University, Jodhpur.

1. The decade long battle between Google and Oracle has come to an end with the Supreme Court of the United States ruling that Google copying the Java Application Programming Interface (API) was a fair use of that material. While applying the fair use doctrine on copyrightable property, one of the important factors is the purpose and character of the use. Given that, how do you think the doctrine should be tested on public APIs? What is your take on the four guiding factors examined by the court in the Copyright Act’s fair use provision?

The US Supreme Court, to determine if Google’s limited copying of the API is fair, examined and analysed their actions in the light of the following four factors as per the Copyright Act’s fair use provision:

1. Purpose and character of the use

2. Nature of the copyrighted work

3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. Effect of the use upon the potential market for or value of the copyrighted work.

These four factors are the primary principles of copyright law and echo across the rest of the intellectual property field as well. They, therefore, form the bedrock upon which any judgement on fair use must be made. One may argue that since APIs are such basic, useful tools necessary for interoperability, they should not be protected under copyright law in order to ensure maximum accessibility. Unfortunately, the court in this judgement wisely refrained from deciding upon this controversial issue.

Drawing a parallel with Standard Essential Patents (SEPs), which are basic tools and features that are necessary for the development and functioning of higher-order systems and interoperability, and are protected under patent law, I don’t see why APIs should not be copyrightable merely due to the fact that their primary function is to achieve interoperability.

Furthermore, considering copyright law does not mandate a high threshold to determine whether a work is copyrightable (relying on the concepts such as ‘modicum of creativity’ and the ‘sweat of the brow doctrine), I feel APIs would be eligible for protection under copyright law. Since public APIs are open to developers over the world to build on as creatively as they please, the fair use doctrine must be applied in this context with care. The mere fact that such APIs are publicly available, should not play any role in the determination of copyrightability or assessment of fair use.

2. The judgement is limited only to the 'fair use doctrine and no finding has been made on the question of copyrightability of APIs. Do you think declaring code from the APIs should be copyrightable at all since most of it comes from the syntax of the language that is largely not built by whoever wrote it or do you think applying the fair use doctrine on a case-to-case basis is a significantly more cogent approach?

I feel it would not be a fair conclusion to state that the code behind an API, written in a particular programming language, should not be copyrightable merely because the coder did not create that programming language. That, according to me is like saying that anything written in English cannot be copyrightable because the writer did not invent English. The fundamental concept under copyright law is that the complexity, aesthetics, or efficacy of the written material has no bearing on its copyrightability, so this argument does not stand per se. I do acknowledge the existence of several doctrines such as the doctrine of merger, that form the basis of copyright law. They, however, need to be redefined to effectively address changes brought forth by technology and the works created therefrom.

With regard to the second part of the question, I don’t believe that making a choice between the determination of copyrightability or assessing whether a use is fair is the right approach. I feel the determination of copyrightability should always be the first step in dealing with disputes such as these; and which would subsequently warrant the need to assess the fairness of usage, only if the work is copyrightable in the first place.

3. Justice Clarence Thomas’ dissenting opinion on the judgement specifically warns that usage of the fair use doctrine be applied upon this case, by allowing fair use simply because it allows new products to be created effectively redefines the idea. Is that view on the usage of copyrights valid considering the modern software industry and copyrights law as a whole?

To answer this question, I believe we need to first discuss the context of the minority opinion, that was picked up from the judgement. Justice Clarence criticized the majority for redefining what is understood by “transformative” under copyright law. What we need to understand is that the mere fact of making new physical products that carries the verbatim code is not per se “transformative”. In fact, it is a term used when we refer to the process of supplementing creativity to an underlying work of an author. By simply adopting a verbatim copy of the work on a different platform wouldn’t suffice the tenets of “transformativeness” and hence, would not be a valid fair use of the work. The minority noted the undisputed factual finding that Google’s use of Oracle’s code was not to reverse engineer a system to ensure compatibility or interoperability, but rather a simple case of copying of the “declaring code” and using it for the same function as intended by the original author without adding any creativity to it; but in a competing platform.

The minority also observed that neither Google challenged the smaller court’s judgements wherein they held that Google copied the primary points of Oracle’s work. According to the minority, in such a circumstance, especially where Google’s contribution was not “transformative” of the copied work and was intended to result in a product that competed with Oracle’s potential revenue, the copying was indeed qualitatively and quantitatively substantial. In the face of a judgement wherein Google’s blatant copying would be considered fair use, I agree with the minority that the approach taken by the majority redefines the concept of fair use, and not in the right direction, in my opinion.

4. Justice Stephen Breyer’s majority opinion acknowledges that it is "difficult to apply traditional copyright concepts in that technological world." Is this an accurate summary of the applicability of traditional intellectual property laws on modern industries such as software, or is it an alternative approach to the application of existing law the right way?

In my opinion, I feel that the problem with the application of traditional copyright law on newer media such as software is that the laws were not written keeping such media in mind. As the fundamental properties of software and other digital literary materials differ from their physical versions, it is easy to see why such law may fall short in some situations involving traditional concepts. For example, traditional copyright law gives the right of production of copies of literary works to its author. In this, it contemplates the entire printing process that makes use of the printing press and the considerable monetary input required for the same. However, digital works can be copied with just a click, meaning that virtually anyone can create and sell copies of the work.

In my opinion, in the fast-paced technological world, it is necessary that copyright law not only be updated but also be applied to software with a nuanced approach based on the awareness of its unique properties. While I am personally of the opinion that the majority opinion in Google v Oracle is flawed, I was quite pleased to see the Supreme Court put effort into understanding the distinction between declaring code and implementing code before coming to a conclusion.

5. Market experts have discussed the detrimental effects of a ruling in favour of Google, arguing that it might harm fair competition laws in favour of large monopolists. Is the judgement in consonance with these expectations, or was the limited and specific application of fair use law useful for the same?

There has been much that has and will be written about how this case is a win for innovation because it allows programmers to copy code for the purpose of “interoperability”. However, even though I see merit to this argument, a question that is raised and I see validity in is – but at what cost? Without disregarding the relevance of technical interoperability as a fundamental part of any technological revolution, I feel the “interoperability” as recognized by the Supreme Court in this judgement will put valuable, original code at the risk of being copied verbatim in the future. To my understanding, the Supreme Court ruled Google’s copying transformative because it was used to attract developers to build innovative software, which aligns with the objective of copyright law to enhance creativity. I read that the use of APIs by Google was to achieve “human interoperability”, rather than “software interoperability”, which I believe is the case here, which unfortunately does not constitute “fair use”. Additionally, the reliance on the argument that Java is used on desktop and laptop computers and Google used the code on a smartphone does not bring about transformation either, considering a smartphone is just a miniature computer.

It’s very natural for a judgement of this kind to result in a disproportionate, unequal and massive overreaction by creators of all types. It is being suggested that companies now need to keep their software code secret and not release code in the public domain unless they are willing to give up all rights to it. This consequently may culminate in a snowball effect with less and less sharing of software code and reduced ability to copy, leading to a fundamental change in business models. In my humble opinion, the judgement might do far more harm than good to other copyrighted works due to the gradual detrimental effect it will inflict on the doctrine of fair use.

6. A majority of the software industry relies on open source, in that regard what might be the ramifications of this judgement on independent developers and the programming industry at large?

From what I understand, software developers have been using APIs quite freely. I feel the judgement, in that respect, will not have any impact on changing the status quo. That being said, with this judgement, software developers would exercise more caution in limiting accessing to their APIs and restricting the reproduction of the same. Before they do so, independent developers could act fast relying on the judgement to profit from the use of APIs falling within the ambit of fair use to modularly combine and recombine functionality and data for new uses, with virtually no marginal cost for each additional use of the API. As far as open-source software is concerned, the judgement has enhanced developers’ freedom to innovate using widely available tools instead of building everything from scratch. For example, developers can use Android as a platform to build million-dollar applications.

7. Can software interfaces be included in the fair use definition? A legislative solution might be a suitable course of action or would it be too early to go in that direction for now?

Software interfaces, or programming interfaces, are the languages, codes, and messages that programs use to communicate with each other and to the hardware. It could be the Windows, Mac, and Linux operating systems, SMTP email, IP network protocols, and the software drivers that activate the peripheral devices. Now, in the Indian context, Section 52 of the Copyright Act, 1957, uses the term “computer programme”, which is defined broadly in S. 2(ffc) to mean a set of instructions expressed in words, codes, schemes, or in any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result. Therefore, as the definition of “computer programme” stands, software interfaces do fall within its scope, and consequently within the ambit of fair use.

S. 52 gives an outline of fair use of computer programmes. It permits copying in order to use the program for which it was supplied, and to make temporary backup copies for this purpose; educational purposes; to ensure interoperability, and for any non-commercial personal use. I believe, from a bare reading of the Copyright Act, it is evident that such use of software interfaces would be permissible. The only challenge would be keeping the concept of ‘fair use’ in line with the developments in technology.

8. Section 52 of the Copyrights Act, 1957 provides for certain exceptions to infringement of copyright in India. What value does the judgement in Google v. Oracle hold in India's Legal Landscape?

In the Indian context, the assumption made by the US Supreme Court with respect to the copyrightability of the “declaring code” of Sun Java API would be of significant relevance. The same cannot however be said about the determination by the Supreme Court of Google’s usage of the Java API as fair use. The concept of “fair use” as recognized in the US is different from the concept of “fair dealing” as envisaged under Section 52 of the Indian Copyright Act, 1957. While there is a specific exception for use of computer programmes to achieve interoperability under Section 52(1)(ab), its applicability is negated by the fact that Google’s usage of the Java API was not to achieve technical interoperability. Google’s use of the Java API in fact does not fall within the ambit of any of the exceptions specified under Section 52. Accordingly, the decision of the US Supreme Court in Google vs Oracle does not hold much value in the Indian legal landscape.