- Whether a Court can expand the list of uses in the Preamble
- Whether Google’s use of Oracle’s Java API packages could be considered “research”, or
- Whether there is a suggested characterization or new category with which the US Supreme Court might agree
- Whether the argument is worth making
17 U.S.C Section 107 states that notwithstanding the provisions of 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction in copies or phone records, 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 fair use the factors considered shall include- (a) the purpose or character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (b) the nature of the copyrighted work; (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C Section 107 uses the word including while stating the purposes for which fair use is legitimate. Include means as parts of a whole or to contain. Cambridge Dictionary 8th ed. The list can therefore be expanded and is not limited to comment, teaching, scholarship, research or news reporting. The justification of the right to fair use is to encourage and stimulate new ideas in technology that enhance the already exiting one. Open and free APIs are significant in current software development. Steven 2020. Programmers rely on modifying, sharing and enhancing previously existing software to develop new software and new products in the market. The Supreme Court will put into consideration such factors and it is likely that it might expand the scope of the preamble because of the necessity of technological advancement and public policy.
Research is defined as the diligent inquiry or examination to seek or revise facts, principles, theories, applications etc. Id. Google copied the organization, sequence and structure of the 37 APIs into Android. Oracle Am. Inc v Google Inc., 872 Supp. 2d 974 (N.D Cal. 2012). In Oracle, the plaintiff claimed that Google did not have license relating to the SSO Code and documentation of 37 APIs and the range Check function. (Contra Oracle AM., Inc v. Google Inc,. 872 F. Supp. 2d 974 (N.D Cal. 2012)………so long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in Java API. It does not matter that the declaration or method header lines are identical).In this case Google copied the sequence, organization and structure of 37 APIs and used them in their android, that cannot be considered as research. Research constitutes an inquiry and examination to seek or revise facts, principles, theories and applications. The actions by Google cannot constitute research.
Considering the Oracle case is being looked into keenly by major corporations and organizations like Software Freedom Conservancy, Open Source Initiative, Mozilla, Creative Commons and Wikimedia. Id. In addition, considering that programmers rely on modifying, enhancing and sharing previously developed codes to create new products and develop functionality. It is likely that the US Supreme Court will come up with new criteria for determining fair use. Such criteria may be called technology advancement. APIs are important in developing modern software hence copyrighting APIs will not be beneficial towards technological advancement.
The use of Oracle APIs by Google does not constitute research because Google copied the structure, organization and sequence of the 37 APIs. There is possibility for the US Supreme Court to expand the Preamble of U.S.C 17 section 107. Such expansion will be based on the importance of APIs in the modern technological and the impact of limitation on technology advancement.
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