The analysis and commentary around the Oracle v. Google litigation has been lively, and at times, rather contentious.
Today, the jury gave a verdict in favor of Google on fair use. I, like many attorneys, however, am somewhat skeptical that this will withstand an appeal. Fair use, roughly speaking, is an exception to infringement. This means that one party has already been found to commit copyright infringement. Fair use is then an exceptional remedy intended to accommodate extenuating circumstances. So its successful application, as you can imagine, is pretty rare.
To work through an example, first understand that fair use involves a balancing of four factors:
- the purpose and character of the use;
- the nature of the copyrighted work;
- the amount and substantiality of the copied portion of the work, and;
- the effect upon the copyrighted work’s market.
Showing 15 minutes of Star Wars (3) to a classroom of film students in an academic setting (1) only once a year (4) to illustrate editing techniques (2) similar to Kurosawa fits nicely within this exceptional framework. There’s a public good arising from such use and the financial consequences to the copyright holder are de minimis (indeed, it may encourage the students to buy their own copy of the film).
In contrast, decompiling and copying entire software files, including 170 lines of code (3), to further a commercial venture (1), without paying for the commercial license similarly situated entities pay (4) is closer to the opposite end of the spectrum. If the portions copied are functionally necessary for interoperability, then there’s some hope for the (2) factor, but even then, you’d probably want to demonstrate that the portions copied were narrowly selected for that exclusive purpose. Ideally, it would have no effect relative to the commercial license.
There’s no denying that these are complicated and fact intensive analyses, though.
There will almost certainly be an appeal, but if you’d like to discuss the details, don’t hesitate to reach out offline.