The Fair Use Doctrine Remains an Issue in the Courts Even for Tech Giants

By: Veronica Medina
As technology advances, the fair use doctrine in 17 U.S.C. § 107 is becoming more of an issue in the courts. The application of the fair use doctrine by judges in courts portrayed inconsistencies in variance because the factors are applied on a case-by-case basis.1 The courts apply a four factor analysis from the fair use doctrine to cases where a defendant is accused of copyright infringement.2 17 U.S.C. § 107 considers whether a work is transformative, its purpose, the nature of the original, the amount taken, and the market effect.3
Once a work is considered transformative, the fair use doctrine then analyzes the other factors.4 To apply the factors in a way that would not cause too much variance in decisions, the courts balance the weight of the factors.5 The main factors they focus on are the work’s
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1 T. Randolph Beard et. al., Fair Use in the Digital Age, 65 J. Copyright Soc’y, 1, 23 (2018).
2 17 U.S.C.S. § 107 (LexisNexis 2018).
3 Id.
4 Richard Stim, Fair Use: The Four Factors Courts Consider in a Copyright Infringement Case, NOLO (2018), https://www.nolo.com/legal-encyclopedia/fair-use-the-four-factors.html.
5 See id.; See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584(1994).
purpose and the market effect.6 However, as technology advanced and became the norm, the courts varied in their decisions with the fair use doctrine.
Oracle American Inc. v. Google LLC was described as being deadlocked when centralizing on the issue of fair use.7 The case concerned whether Google’s use of Oracle’s packages from Java application programming interface (API) was within fair use.8 Google used 37 of Oracle’s API packages and formed the rest with their own code.9 Google then used that for Android software.10 The case traveled through the courts since 2012 when the district court held the API packages were not subject to copyright.11 However, the issue of fair use began in 2014 when the federal circuit held Oracle’s API packages were copyrighted.12 The federal circuit sent it back to the lower courts to decide if Google’s actions were within fair use.13 Google was
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6 See id.
7 Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1186 (Fed. Cir. 2018).
8 Id.
9 Id.
10 Id. at 1187.
11 Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D. Cal. 2012).
12 Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1348 (Fed. Cir. 2014).
13 Id.
found to be within fair use in the second jury trial and by the district court.14 The district court also rejected the motion Oracle filed for a judgment as a matter of law.15
In the recent ruling of Oracle Am., Inc. v. Google LLC, the court ruled in favor of Oracle.16 The court held that Google’s code was not transformative because even taking a little portion of the implementing code was not transformative.17 This then weighed into the purpose factor with the court’s analysis of profitability, which ruled against Google that Google’s Java in Android was commercial.18 The second and third factors were also against Google because the court found the API to be creative, which Google plagiarized a sufficient amount.19 The fourth factor was found against Google because the court claimed Google competed with the same market as Oracle.20
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14 Oracle Am., Inc. v. Google Inc., No. C 10-03561, 2016 U.S. Dist. LEXIS 74931 (N.D. Cal. June 8, 2016).
15 Id.
16 Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1211 (Fed. Cir. 2018).
17 Id. at 1197-98.
18 Id.
19 Id. at 1204-1207.
20 Id. at 1211.
Oracle Am., Inc. v. Google LLC is of great significance. The case depicts evidence that the fair use doctrine needs reform. Specifically, in obtaining more direct and fair rules that are applicable to software. For example, lower courts like the one presented in this case applied fair use differently than the court of appeals here.21 For instance, it should be a form of transformation when Google used a small portion of Oracle’s code and then used its own code.22 Software, as Android stated, is complicated to form.23 Hence, it should be within fair use to use little portions of other software to advance technology at a quicker speed.
Since courts do not focus on the second and third factors, perhaps the doctrine should re-word them more specifically or not include them.24 Lastly, for the fourth factor, the doctrine should be more specific in which types of markets count as competition for software purposes.25 This way, Tech Giants in the future can be more aware before they use another’s software that is not counted as fair use.
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21 See id. at 1186.
22 See Oracle, 886 F.3d at 1186; See also id. at 1199.
23 Id. at 1187.
24 See 17 U.S.C.S. § 107(2-3) (LexisNexis 2018).
25 See id. at (4).

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