Why the new DICT Should Pay Attention to Google’s Android Fair Use Win

Elpidio V. Peria
29 May 2016

android fair use

Two events occurred this past week that should eventually benefit the Filipino netizen – the signing into law by Pnoy of Republic Act 10844 creating the Department of Information and Communications Technology (DICT) and Google’s favorable jury verdict in a case filed against it by Oracle Corporation upholding its fair use of some of Oracle’s application programming interfaces (APIs) that would have cost Google in back royalty payments to Oracle of around US$9 billion.

About that fair use win by Google, Public Knowledge, (a US advocacy group promotes freedom of expression, an open Internet, and access to affordable communications tools and creative works) said that it is a win for software developers and the public in general since the software developers will continue to be free to develop new products that are compatible with other pieces of software. A contrary finding would have cost the public billions and enmeshed the technology industry in litigation.

Fair use is characterized by Patricia Aufderheide and Peter Jaszi in their book Reclaiming Fair Use as the biggest and most important exemption from a copyright owner’s monopoly control. They say it is of two kinds : one, is your right to do with copyrighted material what you will for personal purposes and the other is when you reuse copyrighted material in the process of making something else.

In the case filed by Oracle against Google, Oracle claimed that when Google developed its own version of Java to be used in the Android operating system, which is one of the dominant smartphone operating systems today, Google illegally used certain application programming interfaces of Java, which Oracle claimed it has some copyright on. As helpfully explained by Timothy B. Lee of Vox, Google’s version of Java didn’t reuse any code from Oracle’s version. But to ensure compatibility, Google’s version used functions with the same names and functionality as that of Oracle.

The case though, will definitely be appealed by Oracle, but at least  for now the principle of fair use was upheld at this case.

Now, you will ask, so why should the new Department of Information Communications and Technology bother with this issue, among its more pressing concerns, like, speeding up the country’s internet speeds?

Part of the State policy written in the law that will be pursued by the DICT is, among others, to promote the development and widespread use of emerging ICT and foster and accelerate the convergence of ICT and ICT-enabled facilities.

Among emerging ICT systems that will have to be taken into account by the DICT are free and open-source operating systems, a most typical example of which is the Android smartphone operating system and these systems are, based in the case we cited, founded on the principles of fair use and given that US court decisions are given persuasive effect in cases filed under our Intellectual Property Code, it may be useful that developments in this case be closely monitored by the DICT from hereon so it may gain some useful insights  on how open-source operating systems may be helped or hindered by whatever case law that may evolve in the  principle of fair use in  copyright.


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