The technology industry was dealt a major setback when the Federal Circuit recently decided in Oracle v. Google that Google’s use of Java “declaring code” was not a fair use. The copyright doctrine of Fair Use impacts a developer’s ability to learn from and improve on the work of others, which is a crucial part of software development. Because of this ruling, copyright law today is now at odds with how software is developed.*

This is the second time in this eight year case that the Federal Circuit’s ruling has diverged from how software is written. In 2014, the court decided that declaring code can be copyrighted, a ruling with which we disagreed. Last year we filed another amicus brief in this case, advocating that Google’s implementation of the APIs should be considered a fair use. In this recent decision, the court found that copying the Java declaring code was not a protected fair use of that code.

We believe that open source software is vital to security, privacy, and open access to the internet. We also believe that Fair Use is critical to developing better, more secure, more private, and more open software because it allows developers to learn from each other and improve on existing work. Even the Mozilla Public License explicitly acknowledges that it “is not intended to limit any rights” under applicable copyright doctrines such as fair use.

The Federal Circuit’s decision is a big step in the wrong direction. We hope Google appeals to the Supreme Court and that the Supreme Court sets us back on a better course.

* When Google released its Android operating system, it incorporated some code from Sun Microsystem’s Java APIs into the software. Google copied code in those APIs that merely names functions and performs other general housekeeping functions (called “declaring code”) but wrote all the substantive code (called “implementing code”) from scratch. Software developers generally use declaring code to define the names, format, and organization ideas for certain functions, and implementing code to do the actual work (telling the program how to perform the functions). Developers specifically rely on “declaring code” to enable their own programs to interact with other software, resulting in code that is efficient and easy for others to use.