If you’ve been following a battle in the United States between tech giant Google and tech not-so-giant-but-still-bloody-big Oracle, you’ll be disappointed (or not) to know that it’s over. Spoiler alert: Google won. Nathan Mattock and Emma Johnsen from Marque Lawyers* explain why, and what that might mean for Australia.
Picture this: it is 2030, a small app developer creates an app that detects smells through your phone. Google steals some of the code, modifies it and develops something new and exciting called “Google Smell.”
Billions of people start using Google Smell. The developer tries to sue for infringement but, because Google Smell has become part of everyday life, US law says there’s no case for Google to answer.
Sound fair? Well, a recent US Supreme Court decision suggests that’s where we’re heading.
Back in 2005, Google included some 11,500 lines of code from an Application Programming Interface (API) in its mobile Android operating system. The API had been developed by Sun Microsystems, which Oracle purchased in 2010.
Oracle sued Google, seeking $9 billion in damages. Google relied on “fair use” (a legal doctrine that does not exist in Australia) as its defence. The argument was that Google needed to use those lines of code to allow programmers that are familiar with the Java programming language to work with Google’s Android platform.
Google used the API to make a whole new, and now much more popular, mobile operating system.
Google won, the court ruling that the API was “critical interface”, basically essential infrastructure, over which the copyright holder (its creator) can’t maintain a monopoly over its use.
The problem is, where the company that has taken the source code already has its own monopoly, it is fairly easy for it to argue that the thing it stole is essential.
The decision won’t have any direct effect on copyright law here in Australia because our law is different, however, it has been labelled by some as a huge victory for computer programmers and users, at the same time being slated as a decision that eviscerates copyright in the US.
Our view is that, while there is certainly a need for copyright law to catch up to the modern world, this case may create a precedent where source code theft by powerful companies like Google is protected by law.
Justice Stephen Breyer, who was in the majority of the 6-2 decision, notably stated that it is difficult to apply traditional copyright concepts in the technological world.
Don’t we know it.
*Marque Lawyers provide ongoing pro-bono assistance for New Matilda… i.e. they keep us out of jail. Most of the time.
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