DOJ Argues Google’s Copying of Oracle Code Isn’t ‘Fair Use’

Google's "verbatim copying” of Oracle computer code into a “competing commercial product” wasn’t fair use, the Trump administration said in a Supreme Court filing Wednesday (see 2002190058). Also siding with Oracle in separate filings were USTelecom, the Motion Picture Association, the RIAA, the National Music Publishers' Association and the Copyright Alliance.

Software code is copyright-protected, the solicitor general argued. DOJ rejected Google’s interoperability arguments, saying Google “designed its Android platform in a manner that made it incompatible with” Oracle’s Java platform.

Google has support from the Internet Association, the Computer & Communications Industry Association, Microsoft, Mozilla, Reddit, Etsy and the Electronic Frontier Foundation (see 2001130050). The Supreme Court should strike down Oracle’s lawsuit against Google’s use of Java programming code because innovation relies on interoperability and fair use, tech companies and groups argued.

Failing to recognize software interface copyright would undermine service providers’ ability to “fulfill key legal obligations” for network security, resilience and privacy, USTelecom said. It would also harm flexibility for innovation and the rise of new business models, it said: “The loss of this protection would imperil their ability to comply with legal obligations and market imperatives alike, harming consumers and the broader public.”

If Google’s unprecedented approach were applied to the film industry, it would “unduly impair” exclusive rights for copyright owners, MPA argued. It would potentially “eviscerate” rights to create sequels, prequels and spinoffs, it said.

Recording industry members depend on an “appropriately balanced fair use doctrine” that “furthers the purposes of copyright law,” for reproduction, distribution and licensing of derivative works, said a group including RIAA, NMPA and the Nashville Songwriters Association International. Fair use is a “limited exception to the general rule that creativity is best promoted by granting exclusive rights to creators,” who should be able to control how their works and derivatives are used, the Copyright Alliance argued.

Fair use enables new work that “alters the expressive content or message of the original work or has a purpose distinct from the purpose of the original work,” a group of 25 journalism and media professors said.

Copyright protection encourages time and resource commitment from investors and developers, said the Alliance of U.S. Startups & Inventors for Jobs. Google “engaged in verbatim copying to use the copied code in commercial competition with others who either licensed the works or avoided infringement by applying their own creativity to write different code to perform those functions,” filed a group of copyright thought leaders.