GOOGLE, ORACLE AND LINES OF CODE: COPYRIGHT OR FAIR USE?

On 5 April 2021, the US Supreme Court put an end to the dispute between Oracle and Google. By confirming that Google was not at fault in reproducing more than 11,500 lines of code, this decision raises questions about the fate of programmers in Europe.

After a decade-long legal battle, Google has just won the case against Oracle over whether Application Programming Interfaces (APIs) are open source or protected by US copyright law. It is true that Google, which had acquired the Android start-up, had copied more than 11 500 lines of code from the Java API for its own system. As the owner of these lines of code, Oracle then brought an action before the American courts regarding the acts of infringement committed by Google.

However, this view has now been challenged by the supreme judges on the grounds that "Google's copying of the API to reimplement a user interface, taking only what was necessary to allow users to put their accumulated talents to work in a new and transformative program, was a fair use of that material at law. To arrive at this solution based on American fair use - an exception to copyright, just as there are exceptions to French copyright “. To arrive at this solution based on American fair use - an exception to copyright, just as there are exceptions to French copyright (Intellectual Property Code, Article L. 122-5) - the judges considered that: the disputed copy only concerned "declaring codes" linked to free-range ideas; Google's approach was one of creative progress; the lines of code copied represented only 0.4% of the overall code. Therefore, no infringement was evident since Google could invoke fair use. The problem is that there is nothing in the decision to confirm that APIs are not copyrightable or protected.

Indeed, the Supreme Judges tacitly considered the application of fair use without specifying the legal argument that APIs are susceptible to copyright protection, perhaps so as not to cause serious harm to computer creation and innovation. This is a surprising solution since, on the other side of the Atlantic, Directive 2009/24/EC provides that the ideas and principles underlying a computer program are not protected by copyright but could be the subject of an action for unfair or parasitic competition. It now remains to be seen whether a European programmer would be liable to be worried if he or she copied lines of code developed on American territory. Another battle for digital sovereignty in the face of this foreign element.

IP/IT DATA TEAM

Within the framework of its activity dedicated to new technologies, the Altij law firm assists individuals, companies and local authorities in the face of the challenges of the new digital economy and the exploitation and protection of software, algorithms and big data.