Clark D. Asay, Transformative Use in Software, 70 Sᴛᴀɴ. L. Rᴇᴠ. Oɴʟɪɴᴇ 9 (2017).
Transformative Use in Software
copyright, fair use, transformative use, Java, Android, Google, Oracle
Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”
When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of Oracle’s Java software in its Android platform constituted fair use. Oracle has appealed the decision, claiming, among other things, that Google’s use of its copyrighted Java software could not be fair use because the use was not transformative. The use was not transformative, claim Oracle and its amici, because Google uses Oracle’s software for the same functional purposes for which it was written.
This Essay contends that accepting Oracle’s argument would mean that fair use rarely if ever applies in the software reuse context. Software’s functional nature, after all, means that reuses of software will inevitably involve the software carrying out the same functions for which it was designed. But if that reality alone forecloses the possibility of a fair use defense, it means the productive balance that fair use helps strike between copyright holders and follow-on software innovators may be imperiled. The Essay concludes with some thoughts on how best to apply the transformative use inquiry in software reuse cases.
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