Reforming 17 U.S.C. s. 107 for Software Creators with a Helpful Approach from the Uniform Trade Secrets Act.

• Author: Medina, Veronica

ABSTRACT 47 I. INTRODUCTION 47 II. FAIR USE FACTORS 49 III. ORACLE v. GOOGLE SAGA 50 IV. SOFTWARE CREATORS FEAR CREATING SOFTWARE WITH BUGS: AN ANALYSIS OF INTEROPERABILITY AND REVERSE ENGINEERING 56 V. HISTORY OF SOFTWARE COMPANIES AND EXPERTS STRUGGLING WITH COMPREHENDING CREATING SOFTWARE WITHIN FAIR USE 59 A. THE TRANSFORMATIVE STANDARD 59 B. SOFTWARE AND THE FAIR USE DOCTRINE IN THE COURTS 60 VI. BRIGHT-LINED RULES 64 A. THE UNIFORM TRADE SECRETS ACT 65 B. REFORMING THE FAIR USE DOCTRINE WITH BRIGHT-LINED RULES SIMILAR TO THE UTS A 67 VII. CONCLUSION 70 I. INTRODUCTION

For years, 17 U.S.C. [section] 107, the fair use doctrine, portrayed inconsistencies in variance because the factors are applied on a case-by-case basis. (2) Google now faces a cost of paying Oracle billions of dollars due to the most recent court case where the appeals court ruled that Google did not use Oracle's API packages within fair use. (3) In 2016, the court ruled the opposite that Google's use of the API packages were within fair use because Java was made to be open to everyone. (4)

Google likely would not have been caught up in this lawsuit if the 17 U.S.C. [section]107 would have been written clearer for software creators. Google noted that experts in software were the ones that used the API packages from Oracle. (5) Since software creators are used to designing software by modifying already created software (6), these software experts in Google likely did not see it as a problem to use software from another company's usage of it. Interoperability has existed for years with software copyright law, which allows creators of software to use parts of developing software from other software already created by others. (7)

To refrain other lawsuits from occurring like the Oracle v. Google saga, this article argues the 17 U.S.C. [section] 107 should be written clearer with bright-lined rules, similar to those stated in the Uniform Trade Secrets Act. (8) In the Oracle v. Google saga and cases before it, the courts focused on the rules of the application of the fair use doctrine, especially for the transformative part from other cases dealing with songs, books, and other creative works. (9) The cases are different in those materials dealing with other creative works from software because software has this concept of interoperability, since creating software is known to be difficult. (10) The bright-lined approach should be specific to the transformative part of the doctrine with an incorporation of interoperability. The transformative portion of the fair use doctrine is the part that was most debated about in courts on what was considered to be within fair use concerning software." This way software creators can know how much to transform when designing software from modifying already made software to stay within fair use. (12)

Part II discusses the fair use doctrine in detail and how the factors are applied on a case-by-case basis. (13) Part III discusses an in-depth analysis of the most recent Oracle v. Google case on how the court applied 17 U.S.C. [section] 107 to Google's taking of Oracle's API packages in contrast to the 2016 case in the Oracle v. Google saga. (14) Part IV discusses different methods of how software creators are used to designing software. (15) The different methods include interoperability and reverse engineering. (16) Part V is divided up in to two parts. (17) The first part discusses issues within the transformative standard of the fair use doctrine and the second part discusses cases that have applied the transformative standard of the fair use doctrine to cases involving software. (18) Part VI discusses bright-lined rules that the fair use doctrine should have to apply strictly to software. This part is divided up in to two sections. The first being the Uniform Trade Secrets Act (UTSA). (19) The second being how the fair use doctrine should be drafted similar to the UTSA with the bright-lined rules format with several suggestions relating to software creators and lawmakers. (20) Part VII includes a conclusion to this note.

2. FAIR USE FACTORS

   Fair use is codified as 7 7 U.S.C. [section] 107 of the Copyright Act. (21) Fair use "allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances." (22) The fair use doctrine has no rigidity in its structure of rules. (23) Because of this lack of bright-lined rules, the statute is applied on a case-by-case basis instead of from the doctrine itself. (24)

   The fair use doctrine includes four factors to determine if a work is within fair use. (25) The statute identifies the factors as factors that shall be considered by the courts when they are determining if a work is using a copyrighted work within fair use. (26) The factors are applied to any work that is using copyrighted work, such as, software, songs, and magazines. (27) The factors are: 1.) the purpose and character of the use, 2.) the nature of the copyrighted work, 3.) the amount and substantiality of the portion used; and 4.) the effect of the use on the potential market for or value of the copyrighted work. (28)

   The fair use doctrine does not include specific guidelines on how much weight each factor has in determining whether a work lies within fair use. (29) There is also no order in how the factors should be applied to each case. (30) Courts are allowed to apply the fair use doctrine by balancing the factors in any way possible to any situation on a case-by-case basis. (31)

3. ORACLE V. GOOGLE SAGA

   Oracle II is the most recent case concerning the fair use doctrine in the Oracle v. Google saga that has been going on since 2012. (32) This long running case began when Google used 37 packages from Oracle's Java application programming interface (APIs), which is a program that stores memory data in an operating system (33), without Oracle's authorization. (34) Then, Google wrote its own implementing code to be placed in software for Android. (35) Oracle first started owning the declaring code for the API packages from their predecessor, Sun Microsystems, Inc. (36) Sun developed the Java platform and then Oracle purchased Sun. (37) Oracle created a licensing project to allow other programmers to use Java declaring code for free. (38) From this licensing scheme, Oracle licensed the Java in "700 million PCs by 2005." (39)

   Google acquired Android, Inc. and then Google discussed obtaining a license from Sun to use the Java packages for the Android system. (40) Google saw that it was hard for Android to create their own APIs because the team kept trying to make them, despite this, the APIs did not successfully work for their planned new platform. (41) That is when Google decided to use 37 Java API packages, all of which equal to 11,500 lines of Oracle's declaring code. Additionally, Google created the implementing code for the new Android phone to work. (42) In 2014, the Federal Circuit stated that Oracle's API packages were entitled to copyright protection. (43) However, Google used the open source license rule as their fair use defense, which promotes interoperability to use other company's declaring codes for other works. (44)

   The lower court in 2016 ruled in favor of Google when applying the fair use factors to this case. (45) For the first factor, the court concluded based off a reasonable jury standpoint that Google's use was commercial, but it was transformative. (46) Google used Oracle's code, but added their own implementing code which was transformative enough to the programming language. (47) For factor two, the court decided a reasonable jury could find that the declaring code was not highly creative since Oracle received the code from Sun. (48) Factor three was decided by the court that a reasonable jury could find that Google copied enough to be within a necessary amount. (49) In doing so, the court noted the amount taken from Oracle was small. (50) Finally, for the fourth factor, it was not considered to be a harm to Oracle's market. (51) The court here found Oracle had their market to include laptops and desktop computers, while Google reached out to Android's smartphones and tablets. (52) In figuring out this decision, the district court followed the ruling in Atari Games Corp. v. Nintendo of America Inc., which found reverse engineering software to be within fair use. (53)

   When Oracle appealed the case, the court held in favor of Oracle in 2018. (54) In deciding that Google's use of Oracle's API packages were against a finding of fair use, the court emphasized the first factor is "a question of fact and a question of law." (55) The first part is fact, which is determining whether a new work is commercial. (56) The second part of the first factor is law in determining whether the work that used the copyrighted work is transformative or is the same as the original. (57) The court determined Google's use of the API packages in the Android were of commercial use. (58) Although Google had non-commercial motives by having Android free of charge, the direct economic way of getting money from the advertisements was considered commercial. (59)

   The transformative portion of the first factor was spent on the most throughout the case. (60) The court was deadlocked in deciding whether Google transformed the language of the APIs before sticking them in to the Android. (61) The court held Google's use of the API packages with the implementing code was not within fair use because: (1) it did not fit in with the uses that were listed in 77 U.S.C. [section] 107; (2) the purpose of placing the API packages in Android matched the purpose of packages in Java platform; (3) Google did not convey a new message with the material; and (4) smartphones were not that new in technological existence. (62)

   In figuring out whether Google's use of Oracle's API packages were transformative, the court relied on a series of cases that were not software...