Oracle v. Google: A Critique Of The View Of Prince I. Ubochi As To Whether Google Can Comfortably Come Under The Doctrine Of Fair Use

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By Arinze J. Oduburu



I recently read an article by Prince I. Ubochi published on the 12th day of October, 2020, where the author expressed the view that Google can comfortably hide under the umbrella of fair use/dealing as a shield in the pending case of Oracle v. Google. While this is maintained as his personal view, my humble take is that his opinion as personal and persuasive as it seems to be, cannot be swallowed whole. Hence, this article.


My stance on critiquing his material is predicated on the ground that no human being is an omni-knower. His view to my mind, emotion and subjectivity apart, is capable of making readers and researchers grope in darkness. This is because the issue of fair use is not a one way traffic.

To this end, the matter before the Supreme Court of the United States is a very contentious one, and owing to its uniqueness and recondite nature, the Court had sought an amicus brief of the Solicitor General of the United States to enable it know the position of the government on the case. The government’s brief, as a matter of fact, tilted in favour of Oracle, while the amicus briefs filed by a host of others tilted in support of Google. But in the midst of the divergent views, the law resides in the bosom of the Supreme Court, in which everyone has too much confidence in.

What then is the doctrine of fair use?

The doctrine of fair use is a principle that specifies the legal limitations of using copyrighted material without the permission of the copyright owner. But even if the source of the material taken was acknowledged, fair use cannot be implied if the taking was substantial and untransformed. Hence, even the de minimis defence, is a question for the Court to determine.

Hence, the facts and circumstances of the case between Oracle v. Google are as clear as a crystal: Google copied verbatim for the enhancement of its nascent Android, 170 lines of the Application Programming Interfaces (APIs), which Oracle as a matter of fact, is the copyright holder, without rewriting or attempting to rewrite the API code.

The lone issue for determination is: whether Google can hide under the umbrella of fair use as a doctrine in Intellectual Property?

The author answered in the affirmative. But I beg to disagree since, considering the facts of the case, the intent and purpose of the use was commercial and not fair use per se. And if competition can be factored into the verbatim taking by Google, then the competition is a cut-throat kind of competition.

In determining fair use, however, the law is settled that Courts consider four factors to wit: the purpose and character of the use, the transformativity of the use, the amount and substantiality of the use, and the commerciality of the use. See Rogers v. Koons, 960 F. 2d 301(2d Cir 1992), on the effect of the use upon the potential market.

In considering the transformativity of the use, the author opined that: ‘Although the purpose and character of the use of Oracle’s Java programming language in its Android mobile operating system has a commercial flavour, the use of the said Java programming language by Google, can still be considered fair.’

The singular question arising from this assertion is: to what extent should the use of the said Java programming language by Google be considered fair, since Google needed only 170 lines of the API code for its Android mobile operating system, and did nothing other than verbatim copying of the API code, without transforming or attempting to transform the said API code?

I maintain the view that the doctrine of transformativity, in its objective sense, was not obeyed. This is because, considering the facts and circumstances of the case, the portion taken by Google was not only substantial but also untransformed, and because the portion was not transformed, the Court may not excuse it as a fair use.

Again, in considering the amount and substantiality of the portion taken, the author stated that: ‘Notwithstanding the fact that a large portion of the copyrighted work was used as the facts of the case under consideration may present, it is primarily to[sic] the benefit of the public interest and only secondarily to[sic] the benefit of the author.’

My view is that this position ought to be otherwise. The 170 lines of the API code was not only unfairly taken, but also substantially used, and the fact that commercialism is the major purpose of such use, is glaring. As a matter of fact, Google’s commercial benefit was indeed primary, while the interest of the public takes the secondary place.

I totally agree with the author that the doctrine of fair use ‘is really cardinal and should be respected,’ which is part of the reason the law protects every copyrighted work from abuse. But I agree only in part when he goes on to say that: ‘…it is impracticable to make any progress in research in a field of knowledge without recourse to what has been done in that field of knowledge before the current research.’ My stance is that recourse to what has been done in any field of knowledge does not entail a mindless lifting and slavish copying of that which has been done in such field of knowledge, as that will truncate creativity and innovation rather than promote them.

Every case has always been decided on its own merit. Hence, the decision of the Supreme Court in Campbell v. Acuff-Rose Music Inc. 510 U.S 569(1994), is meritorious. To my mind, when the Court maintained the view that nothing is truly new, the reasonable effort that must be put up by an originator is contemplated. This is why originality refers to the effort an originator has put up in synthesizing a concept or producing an artifact. Hence, the aim of copyright generally, is to encourage, foster and promote creativity and not to discourage or threaten it.


We are waiting with curiosity on the Supreme Court of the United States, to deliver its inimitable judgment. My position is that the Supreme Court should jettison any amicus brief perceived by it to be subjectively rendered. The law is, and has always been in the breast of the Supreme Court, whose decisions are final and binding. A judgement in favour of Google, in my view, would be to set a bad precedent in the Court. I stand in support of Oracle that a judgement against it will not only suck blood out of software code developers, but also weaken innovation in the software industry. I maintain that owing to the peculiarity of the case, Google cannot comfortably hide under the blanket of fair use. I expect the best from the Court. All weaknesses, if any, are mine.


Arinze J. Oduburu, a final year law student of Ebonyi State University, Abakaliki, Nigeria., +2347035051869




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