THE LEGAL BATTLE BETWEEN BIG TECHS, GOOGLE LLC. AND ORACLE AMERICA INC; THE NIGERIAN PERSPECTIVE
By Isaac Adeyanju
A decade old legal battle between Google and Oracle arose over Google’s use of about 11,500 lines of source codes owned by Oracle from its Java Application Programming Interface (API) in the development of Google’s Android operating system in a familiar coding language. Application Programming Interface are features that enables programs to interface, and communicate with one another, to enable a smooth delivery of users’ instructions.
Following the above, Oracle instituted an action in 2010 at the Northern District Court of California for Copyright enforcement, against Google for infringements, claiming the sum of $8.8 Million (Dollars) in damages.
In May 2012, the Northern District Court of California following a deadlock from the Jury decided in favour of Google Inc. where it held that the source codes are not subject to copyright protection. The philosophy and reasoning of the decision was founded on the Court reasoning thus;
“. . .There is only one way to declare a given method functionality, (so that) everyone using that function must write that specific line of code in the same way. . .” such coding language or functionality cannot be given the privilege of copyrightability.
The above decision of the Northern District of California began a vicious cycle of Judicial actions, appeals and cross-appeals which has today framed the U.S regime of Copyrights enforcement within its Silicon Valley and Technology market.
Oracle, ensuing from the decision of the District Court of California appealed to the U.S Court of Appeal for the Federal Circuit Court on 30 May, 2013 where they argued that the source codes were copyrightable and that the unauthorized use of their source codes by Google had amounted to a Copyright infringement.
Ensuing from the above legal tussles and the multiplicity of attempts to resolve this issue at the District Court, the Court of Appeal for the Federal Circuit Court in March 2018 reversed the District Court’s decision declaring that the source codes and organizational structures are copyrightable and remanded for a Jury trial as to Fair Use. On remand, the Jury found in favour of Google for Fair Use. The Federal Circuit Court, however, held that Google’s use did not amount to Fair use as a matter of law and held that Google had infringed Oracle’s copyright.
In January 2019, Google petitioned the Supreme Court for a Certiorari and review of the United States Court of Appeal decision in favour of Oracle. The petition was granted in November 2019, Oral arguments were heard on the merits of the case in October 2020.
In April 2021, the U.S Supreme court delivered a judgement reversing the decision of the Court of Appeal holding that Google’s use of Oracle’s Java API, amounted to fair use as a matter of law, and as such, no copyright breach had occurred.
THE US. SUPREME COURT DECISION
A judgement which has been lauded by Software developers, Programmers, Startups and members of the American innovation community alike, and described by members of her Technology industry as a victory for Innovation in the High-tech space, has perhaps been viewed as a spite on Intellectual Property Rights, protection and enforcement on all fronts.
The Supreme Court of the United States (SCOTUS) in determining what many has termed the “Copyright Case of the Century”, by a 6-2 legal opinion, reached a decision on the propriety or otherwise of the issues in contentions, when it assumed that the codes in contention were copyrightable and instead focused the crux of its decision on the Principle of Fair Use, under the American Copyrights Protection System to determine whether or not a breach had arisen.
THE COPYRIGHT PRINCIPLE OF FAIR USE
To adequately appreciate the decision of the SCOTUS, it is imperative to appreciate the principle of Fair Use under the American Intellectual property rights protection, as same represents the philosophy of the Court’s decision.
The Common Law principle of Fair Use as recognized under the American legal system, has been established by the provisions of Section 17 and 107 of the U.S. Codes, as “Fair Use” provides a defense for a party accused of Copyrights violations, where such party reasonably believes that such copyright violation was within the ambit of a Fair usage of such content, or material component, subject to the elements provided in the above provision.
The above principle is capable of exculpating a Defendant from liabilities under a Copyrights claim, where the accused individual discharges the burden of establishing the following elements of Fair use in his/her favour namely;
- The Purpose and Character of the Use,
- The nature of the copyrighted work used,
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: and
- The effect which the use will have on the market value or potential market value of the Copyrighted Work.
The above were the indices considered by SCOTUS, in reaching its decisions, in favour of Google.
On the first element, The Purpose and Character of the Use of Oracle’s codes by Google; SCOTUS held that the codes copied, were mere declaring codes rather than implementation codes, and only served as an organizational function in the context of copyright. It noted further on the above element, that Google had copied the Java Codes, not because of its lack of creativity, but because Programmers had learnt to work with Java SE, and as such needed to copy the above lines to help adapt its software’s to Java trained Developers.
On the second element, the Court noted that Google’s use of Java’s codes was intended to expand the use and usefulness of Android-based smartphones which was characterized by creating a new platform that could be readily used by programmers and consistent with the very objective of Copyrights itself, being creativity.
Furthermore, in resolving the third element, the amount and substantiality, the Court opined, that those 11,500 codes were quite a bit of codes, but it amounted to a tiny fraction (about 0.4 %) of 2.86 Million lines of Java source codes in the relevant programs for the purpose of easing programmers’ interface, with their products (Android smartphones). In light of the above, the element of amount and substantiality was determined in favour of Google.
On the final element, the Court noted, that it was unclear that Java SE would have been successful in the Smartphone market, and that Android should not be regarded as a market substitute for Java’s software, but rather as a mobile operating stack (that is) a very different type of product. Suggesting that the Java-based mobile phone business was declining because the market increasingly demanded a new form of smartphone technology, as such concluding that Google (and Android) are not responsible for that decline, since Google’s Android could not be seen as a market replacement for Java products.
In resolving the above issues in favour of Google, the Court noted summarily, that allowing the enforcement of Oracle’s copyright would risk harm to the public, where it opined that, “. . . such would create a lock limiting the future creativity of new programs to which Oracle alone would hold the keys, which will interfere with Copyrights fundamental objectives, Creativity . . . “
THE NIGERIAN PERSPECTIVE
The resolution of the above legal controversy has created an interesting legal angle in the application of copyright in the technology ecosystem and it is important for Nigerian Technological outfits, to understand where we stand, in light of the above decision.
By the combined import of Section 6 (1) and Par. A of the Second Schedule to the Nigerian Copyright Act, the Common Law principle of Fair use, has been incorporated as the principle of “Fair Dealing” which serves as a defense in the Nigerians Copyright’s liability regime. This principle of “Fair Dealing” will apply where such copyrightable material is used for the following purpose:
- Private use,
- Criticism, or review of the reporting of current events.
While the American Supreme Court decision in Google LLC. v. Oracle American Inc. has expanded the principle of Fair Use from the domain of mere literary, research and entertainment copyrightability, and infused it into the domain of Technology and software innovations, it is yet to be determined whether the same is the case in Nigerian Courts as espoused under our Copyright regime. At present, the U.S. Supreme Court decision might at best be a persuasive decision for Courts in Nigeria.
Thus, it is imprudent to submit that the doctrine of Fair dealing has gained recognition for the purposes of creating a defense to copyright liability in Software and innovation industries, as against the present domain of Copyright protection presently recognized and in force in Nigeria (I.E., in literary, research and entertainment Copyright’s enforcement).
Following the above decision, it is imperative to note that notwithstanding the possible defense of Fair dealing against Copyright liabilities in the Nigerian software and innovation space, intellectual property protection remains a fundamental tool in the development and protection of innovative intellectual capitals in our technology space.
Here are few things for Nigerian Tech Platforms to note going forward, with respect to the expedience of Copyrighting their Innovations:
- Nigerian Tech Companies must understand that unless their Technological innovations, codes, algorithms, designs, and ideas are appropriately registered either as Patents, Copyrights, or Trade secrets, they do not stand a chance to initiate a lawsuit for enforcement of such intellectual property rights against possible breaches.
- Copyright protection is not restricted to the legal protection of Intellectual property rights against literal copying of source codes. Tech innovators can further protect the structures, sequence and organization of their computer software, algorithms, and innovations from potential infringement.
- The best way to ensure that intellectual capital, such as software Ideas, designs and innovations can command maximal productivity in Tech markets through Venture investments, is to assure investors that innovations and software products have the requisite intellectual protection afforded under local and international I.P laws.
- Finally, registration of an author’s intellectual properties entitles same to a claim for financial compensation (damages) in court, in the event that there is an identified breach of such right.
It is imperative to note that while the U.S Supreme Court decision in Google LLC. V. Oracle America, Inc. has been lauded for its impact in shaping the American Silicon Valley, and by extension, the global technology and innovations eco-system, for its affirmation of the Developers rights to explore and reimplement API’s, Nigeria’s Judicial system must take this cue and assume the responsibility of exploring and developing a better Legal environment and ecosystem for innovations and Technological ingenuities of Programmers in our markets to thrive.
Our Legal and judicial system in itself must completely depart from its archaic roles wherein it stifled innovations, and rather Disciple them.
It is clear that the African market is fast becoming a market for software products and innovations, following the African Continental Free Trade Agreement. It is thus expedient that Nigeria positions itself and develops a favourable platform for Software exports across the African and global market space.
About the Author
Isaac Adeyanju is an Associate at OMAPLEX Law Frim and doubles as the Team Lead, Fintech and Cybersecurity Practice Group. You can contact him via mail: firstname.lastname@example.org, or telephone: +234 8074 267 218
 18-956 Google LLC v. Oracle America, Inc
 Associate Omaplex Law Firm, Team lead, Fintech and Cybersecurity. Contact: email@example.com, +234 8074 267 218