S2 E9: Software, copyright, and Fair Use/Dealing – the Case of Google v. Oracle
A recent decision in the US Supreme Court held that copying parts of an application program interface is a “fair use” under US Copyright Law. In this episode, Isaac Rutenberg looks at whether a similar ruling would result in a “fair dealing” framework, and the wider implications of the case.
Thanks to the International Development Research Centre (IDRC) for general support of CIPIT, which allows us to make these podcasts.
Music credits (selected for the appropriate title, given the two parties in the court case!):
Showdown by Kevin MacLeod
Dr. Rutenberg is the Director of CIPIT and a senior lecturer at the Strathmore Law School.
He has a BS in Math/Computer Science, a BS in Chemistry, a PHD in Chemistry, and a JD in Law, all from universities in the United States.
Dr. Rutenberg is actively involved in guiding intellectual property and information technology policy and academic work in Kenya through his research activities, blogging, direct interaction with governments, and civil society interactions.
Dr. Melissa Omino:
Dr Omino holds an LLB (University Of Fort Hare), LLM (Stellenbosch University) and an LLD (University of Fort Hare). She is a member of the Kenyan Bar and practices law as a Partner in MJD Associates LLP in Nairobi, Kenya.
Melissa has a special interest in intellectual property. Her current focus is academic research in the niche area of pharmaceutical patents and international trade in relation to the phenomena of “evergreening”. Melissa is also co-founder of the IPCheckIn a monthly meeting of IP enthusiasts that includes patent examiners, attorneys, professors, musicians and law students who offer their services in IP awareness and knowledge dissemination pro bono in Kenya.
Angeline Wairegi, Ph.D.:
Angeline holds a BS in Chemistry (University of North Texas), MS in Food Science (Chapman University), and a Ph.D. in Physical Chemistry (Utah State University). She is an experienced educator and research scientist with a proven track record in effectively instructing large and small size classrooms in institutions of higher learning, designing educational and training programs for scholars in the scientific field, and in successfully managing and conducting complex research projects. She also has comprehensive technological and pedagogical knowledge on the best practices of designing educational programs, for both online and conventional classrooms, that cater to the educational needs of diverse student populations; as well as the strategies required for carrying out systematic, comprehensive, and successful research projects.
Chebet is an experienced advocate of the High Court of Kenya, who has specialized in intellectual property law. One of her focal areas is intellectual property education with an emphasis on commercialisation of intellectual property assets. At CIPIT, she leads research on the intersection of intellectual property law and innovation with the aim of informing policy change in Kenya, regionally and globally.
Nelly C. Rotich:
Nelly is a Doctor of Laws Candidate at the University of Pretoria. She holds a Master of Law (Pretoria) and a Bachelor of Laws (Kabarak). Nelly is an Advocate of the High Court of Kenya and a Certified Professional Mediator. Her research interest and areas of practice are digital trade, digital rights, and data protection and governance. Nelly currently heads the Data Policy and Governance and Cyber Law and Policy Departments.
Valerie Lyaka Kutima:
I have a Master of Laws from the University of Pretoria, Centre for Human Rights and a Bachelor of Laws from University of Nairobi. I am and Advocate of the High Court of Kenya and a Certified Professional Mediator. I have an interest in the adoption of Artificial Intelligence in Justice Systems. My focus is on Algorithmic Bias and its Implication in the Judicial Decision-Making Process.
Kendi holds a Bachelor of Commerce from Strathmore University in Finance and Business Administration, a CPA 5, and an MBA in Finance from USIU-Africa (2020).
She joined the team in 2014 overseeing all the administrative and finance functions of the Centre. Beyond CIPIT, she enjoys conversations on wealth creation, financial freedom and entrepreneurship.
Catriona is a CPA Finalist and a holder of a Bachelor of Commerce Degree (Accounting Option) from the University of Nairobi.
Kevin Muchwat is a Bachelor of Science degree holder in Physics from South Eastern Kenya University and possesses extensive experience in developing desktop, mobile, and web applications as a full-stack developer. He served as a technical consultant for IFRC, contributing to the design and implementation of Volunteer Management Systems for national societies across Africa. Kevin's expertise lies in the efficiency and performance of server applications and their scalability, which is fueled by his immense passion for the field.
Chemutai is a data-driven Marketer, with a strong passion for leveraging valuable insights to deliver tangible strategies that can effectively drive meaningful results. Her ultimate objective is to help brands make informed decisions and reach their desired goals.
Prof Luis G. Franceschi:
Prof Luis G. Franceschi, LLB, LL.M, LL.D is Founding Dean of Strathmore University Law
School, which is today regarded as one of the most reputable and innovative law schools in
Africa. As a thinker, educator and writer, he loves positive and disruptive innovation. He is
currently engaged on the Courts of the Future initiative, where he has brought together
academia, practitioners, governments and judicial officers to transform the way justice
systems operate in Africa. He is the recipient of the 2018 Utumishi Bora National Award in
Research & Writing, the 2016 Australian Award and Visiting Fellowship at Griffith Law
School (Brisbane) and he has been appointed as Visiting Fellow of Mansfield College during
his visit to Oxford.
His area of expertise focuses on the convergence between Constitutional law and Public
International Law “the constitutional regulation of the foreign affairs power”. He is also a
legal advisor to several national and international government agencies, commissions and
programmes, including international and regional courts, the United Nations and the World
Bank. He sits on several boards: Transparency International (Kenya), the International
Justice Commission (The Hague), the African Prisons Project (London), the Africa Legal
Network (ALN) Academy (Mauritius), the International Association of Law Schools (New
York), among others.
His latest publications include “The Rule of Law, Human Rights and Judicial Control of
Power”, Springer; “Judicial Independence and Accountability in Light of judiciary Code of Conduct and Ethics of Kenya” ICJ Kenya; “The Cost of the Constitution in Kenya: A Cost
Analysis of the New Governance Framework Introduced by the 2010 Constitution of Kenya”,
Harvard Africa Policy Review; “The Constitution of Kenya; A Commentary” (a 900-page
article by article commentary of the Constitution), SUP (second edition); and “The African
Human Rights Judicial System; Streamlining Structures and Domestications Mechanisms
Viewed from the Foreign Affairs Power Perspective”. He is also a weekly columnist with the
Daily Nation Newspaper (Kenya). He has also conducted executive leadership courses for
CEOs in more than 25 countries. He is a Kenyan citizen and resides in Nairobi.
Angela Wasunna is Vice President, Emerging Markets Policy at Pfizer. In her role, she is responsible for leading the development and implementation of a coordinated approach to advance business-focused policy issues related to drug pricing, intellectual property, health systems, healthcare financing and regulatory reform in Emerging Markets. Previously Angela was Assistant General Counsel, Intellectual Property Policy in Pfizer’s Legal Division.
Angela received her law degree from the University of Nairobi Kenya, and advanced law degrees from McGill University, Canada and Harvard Law School. She is admitted to practice law in the State of New York and is an Advocate of the High Court of Kenya.
Before moving to Pfizer, Angela was Associate for International Programs at the Hastings Center for Bioethics, New York. At the Hastings Center, she managed projects on intellectual property rights, market mechanisms in health systems, and public health policy.
Angela has also served as consultant to several agencies including the World Health Organization, the Institute of Medicine (IOM), the Centers for Disease Control (CDC), the World Health Organization, the Bill and Melinda Gates Foundation, the World Bank and the Department for International Development, UK (DFID). Angela has published several peer-reviewed articles in academic journals, and lectured internationally.
She is co-author of the book: Medicine and the Market: Equity v Choice, Johns Hopkins University Press, 2006.
Prof. Githu Muigai:
Professor Githu Muigai hold an LLB and a PhD from the University of Nairobi, an LLM from the Colombia University Law School and Diploma in law from the Kenya School of Law. He is a Fellow of the Chartered Institute of Arbitrators (FCIArb). He was called to the Bar in 1985. He specializes in public procurement law, corporate finance, civil and commercial litigation. In addition to the practice of Law, he is the immediate former Attorney General of the Republic of Kenya.
Florence is an Advocate of the High Court of Kenya, with three years’ experience post admission.
Her interests are in the intersection of human rights with technology.
She is a social impact enthusiast and a member of Vitabu Vyetu Foundation.
Alberto J. Cerda Silva:
Alberto J. Cerda Silva is tenured assistant professor in law and technology at the University of Chile Law School. As a former Fulbright Commission scholar, he holds a doctoral degree from Georgetown University with a dissertation on human rights, copyright, and internet regulation in Latin America. Currently, he is program officer at the Ford Foundation’s International Technology and Society Program, from where he supports organizations advancing internet policies from a social justice and human rights viewpoint worldwide. E-mail: email@example.com
Nanjala Nyabola is an independent writer and researcher based in Nairobi, Kenya. Her work focuses on the intersection between technology, media, and society. She holds an MSc in African Studies and an MSc in Forced Migration, both from the University of Oxford, as well as a JD from Harvard Law School. She has held numerous research associate positions including with the Overseas Development Institute (ODI), the Oxford Internet Institute (OII) and other institutions, and has worked as a research lead for several projects on human rights broadly and digital rights specifically around the world. She is a Fellow at the Stanford Digital Civil Society Programme, and the Centre for International Governance Innovation. Nanjala has published in several academic journals including the African Security Review and The Women's Studies Quarterly, and contributed to numerous edited collections. Nanjala also writes commentary for publications like The Nation (US), Al Jazeera, The Boston Review and others. She is the author of Digital Democracy, Analogue Politics: How the Internet Era is Transforming Politics in Kenya (Zed Books, 2018) and Travelling While Black: Essays Inspired by a Life on the Move (Hurst Books, 2020).
Award-winning Research Analyst and Corporate Strategist with over 10 years’ experience working in the Digital Identification sub-sector. Proficient in researching, analyzing, interpreting, and presenting data related to markets, operation, and economies. Extensively adept in helping organizations design paths to growth and profitability amidst competition and constant change. Holds a Bachelor’s Degree in Economics and two Master’s degree respectively in International Affairs and Political Economy. Certified in Project Management and Data Analytics. Received a Diploma in ICT from ISP Computer Institute. Obtained an International Certificate in SME Banking and Financial Analytics from the Entrepreneurship Development Institute of India (EDII). Participant in the 2020 Digital Identity and National Security Fellowship from the Center for African Affairs and Conflict Research (CAACOR). Policy Ambassador at the Nigerian Global Affairs Council (NIGAC). Currently a Doctoral Student at the University of Abuja, Nigeria.
DR. JOHN OTIENO OREDO:
Dr. John Otieno Oredo, PhD is an educator with over twenty years teaching experience in secondary and university levels. John is a lecturer in the Department of Information Science at the University of Nairobi and previously served as a Research Associate at Kenya Education Network (KENET). He holds a PhD degree in Business Administration - Strategic Information Systems (University of Nairobi); MSc. in Information Technology (Strathmore University); and a Bachelor of Education (Moi University). John is a researcher who has published on educational technology and information systems. His current research revolves around Public Automation, Machine Learning, Data Science, Adoption of Emerging Digital Technologies, Data Analytics, ICTs in Education and Technology Related Stress. He has facilitated workshops on educational technology and academic integrity for University staff and Library Professionals. John is trained in scientific communication and publishing (UON); Research writing (INASP), Item Writing (KNEC), E-Learning course design (ETSU) and supporting faculty in developing online course proficiencies (EDUCAUSE), Advanced Research Design (PASGR) and Critical Discourse Analysis (Stellenbosch University). He is an active member of several professional bodies: ISACA; Full member of Kenya Institute of Management (KIM) and a columnist for its MANAGEMENT magazine; Computer Society of Kenya (CSK), Association for Advancement of Computing in Education (AACE); Project Management Institute (PMI) and Association for Information Systems (AIS) where he serves as the Eastern Africa Chapter President. He is a certified Project Management Professional (PMP), Big Data Engineer and Artificial Intelligence Analyst. John also has an Executive Education in Supply Chain Management from Kuhne Logistics University (Germany). He spends his free time tinkering with open-source productivity and research tools.
FELIX ATANDI ACHIRA:
Felix Atandi is a cybersecurity consultant, data governance expert and an applied researcher in privacy-preserving technologies. He is the Security Solutions Architect at CyberTembo, a cybersecurity company in East Africa and has been a Subject Matter Expert with over 10 years of experience in the field. His research interests span theoretical and applied cryptography and their application to everyday problems throughout computer science regarding Security by Default and Design.
He has a BSc. In Computer Science from Kabarak University and an MSc. Computer Forensics and Cyber Security; ‘Threat Intelligence using Honeypots’ from the University of Greenwich, London. Throughout his career, Felix has developed a skill set directly relevant to cybersecurity including an intersection of digital forensics, cyber policy & governance, information security regulatory compliance, development of strategic cybersecurity frameworks as well as industry best practices and methodologies.
His research interest covers the design, analysis and implementation of efficient privacy-preserving cryptographic techniques and their applications. Specifically, with a strong focus on topics covering Homomorphic Encryption, Secure Multiparty Computations, Differential Privacy and Post-Quantum Cryptography. His research is inherently ground-up and driven by the co-production of knowledge with diverse groups of people, in order to understand the wider security implications of information technology.
FAITH O. AMATIKA:
Faith is a Kenyan lawyer, an Advocate of the High Court of Kenya of over twelve (12) years standing. She holds a Bachelor of Laws degree (LL.B) from Moi University and a Master of Laws degree (LL.M) in Intellectual Property Law from Ankara University, Turkey. She currently works at the Kenya Copyright Board as a Senior Legal Counsel where she doubles up as the country focal point in the World Intellectual Property Organization (WIPO) project on the use of IP in the software sector. Faith has great passion for emerging technologies for instance artificial intelligence, blockchain technologies, internet of things etc. She likes interrogating the interplay between these technologies and the law. She is also interested in intellectual property and intangible asset valuation and helping SMEs and start-ups make the most of their intangible assets.
Gitinywa Louis is an attorney and litigator, specializing in Constitutional law and International Human Rights law, where he has a particular interest on issues related to digital rights for instance: Freedom of expression online, Data privacy, Internet governance and Fintech.
Before joining the private practice he also served as public Prosecutor for the Rwanda National Public Prosecution Authority since 2011 up to March 2016where he has been involved in many cases related to prosecution of economic crimes, and others criminal cases before domestic courts in Rwanda.
He is also a regular contributor to Global Voices where he has published different articles on issues related to freedom of expression online, the massive use of surveillance technologies and their impacts on data privacy in Rwanda.
He is called to Rwanda Bar Association and holds a Masters of Law (UDSM) and a Postgraduate Diploma in Constitutional law (CEU-Budapest).
Oscar is a recognized and results-oriented Cyber Security Leader and researcher with over 7 years’ experience in Cyber security and Technology risk management. Oscar begun his career at The Copy Cat Ltd as a Management trainee then later as a Pre-sales
Systems Security Engineer where he led the go to market in Security technologies. He then Co-founded an IoT based technology company, Sine solutions Ltd that carried out location-based adverts in public service vehicles in Nairobi and had a partnership with IBM research Africa, The government of Kenya and major advertising agencies. He later worked as a Systems analyst at the
Christ Is the answer ministries (CITAM). Oscar is a Chevening Scholarships alumni of (2018-2019) through which he pursued an MSc IT Cyber Security at the University of Glasgow, Scotland, UK. Where he researched on the application of Artificial intelligence on Cloud data loss prevention and developed a model to demonstrate the research, a project that earned him an entry into the University of Glasgow School of computing Science Hall of fame. Oscar is also a US-Aid Scholar at the Strathmore
University for a Bachelor of business Information & Technology (2009-2013) and holds a diploma in Computer studies from the Technical University of Kenya. Oscar is also a member of the John Smith centre for public policy at the University of Glasgow as well as a general member of the Chatham house. Oscar Okwero is currently a Cyber security researcher with particular interest in Cyber threat intelligence and general application security in the cloud. His other interests are in Technology
Law, Artificial intelligence & Machine learning as pertains to Cyber Security.
Wakesho Kililo is the Africa Coordinator, Digital Rights, Greater Internet Freedom (GIF) Project at Internews. Previously, Wakesho worked with the Kenyan Section of the International Commission of International Jurists where she managed the International Justice Program, implementing programs geared at pursuing accountability for victims of autrocities. She also worked on electoral governance Issues at Act change Transform in their Democracy Governance and Human Rights Program, Transparency International Kenya, and Article 19 Eastern Africa. She serves as a member of the Law Society of Kenya Public Interest Litigation and Legal Aid committee. Wakesho was named Civil Society Lawyer of The Year 1st Runners Up in 2019 and Top 35 under 35 Youth Advocate of the year 2020. She is an advocate of the High Court of Kenya and has a post graduate diploma in Law from the Kenya School of Law.
Phionah Achieng Uhuru:
Phionah holds an LLB (Moi University), a Postgraduate Diploma in Law (Kenya School of Law), and an LLM in Intellectual Property and Competition Law (Munich Intellectual Property Law Center). She is a member of the Kenyan Bar with a special interest in research and policy development, particularly in the areas of Intellectual Property Law, Competition Law, and Information Privacy. She is currently focusing on research in the areas of pharmaceutical patents and health data privacy.
Oarabile is a Policy Researcher and a Technologist whose focus is Public Interest Technology at the intersection of digital governance, policy, and regulation. He also assists AUDA-NEPAD in driving strategic approaches to Africa's scientific capacity for regionally oriented regulation and management of the innovation ecosystem and emerging technologies as a Member of the writing team for the AU-AI Continental Strategy for the AU High Level Panel on Emerging Technologies (APET).
He currently serves on the MIT Sloan Management Review's Responsible AI Expert Panel, which assesses how companies design and approach Responsible AI practices, policies, and standards. Oarabile is also a recipient of the Media Democracy Fund and Ford Foundation's Public Interest Technology Exchange Fellowship. He is currently a Policy Specialist working in the Africa AI Observatory project, where he specializes on mapping AI country policy practices, strategies, and data governance legislation.
Lilian Olivia Orero:
Lilian Olivia Orero is an Advocate of the High Court of Kenya and Award-winning writer based in Nairobi, Kenya. She is a Researcher with Berkman Klein Center for Internet & Society at Harvard University. She has participated in a research sprint examining the challenges of navigating digital identity amid crises. She is a Fellow of the Kenya School of Internet Governance, Future Africa and East Africa Emerging Public Interest Advocates Programme. She serves as Civil Society Regional Reference Group Member with UN Women Spotlight Initiative Africa Regional Program advocating for ending violence against women and girls. Olivia has published with London School of Economics and Political Science, Manchester Journal of International Economic Law and Youth Law Journal. She has published a blog titled “Balancing the protection of fundamental rights in the fight against disinformation” with the African Union-European Union Digital for Development Hub. She has also published on gendered topics such as domestic violence, sexual consent, rape, abortion and digital gender divide. She holds Advanced Human Rights Certificates on the right to privacy from Centre for Human Rights, University of Pretoria, Post-Graduate Diploma in Law from Kenya School of Law and Bachelor of Laws Degree from Moi University.
Joshua Kitili is an Advocate of the High Court and also holds an LLM (University of Strathclyde) in Information Technology & Telecommunications law. His interests are in privacy, data protection and Information Technology law in general.
Natasha holds an LLB from the University of Kent and an LLM in International Commercial and Economic Law from SOAS University of London. She is enthusiastic about the centre's mission of creating and sharing knowledge of the development of intellectual property and information technology within the African setting. This falls in line with her passion of engaging with conscious policy making that has a lasting impact on the well being of the African populace.
Doreen Aoko Abiero:
Doreen is an Advocate of the High Court of Kenya and holds an LLB degree from the University of Nairobi. Her interests revolve around the areas of environmental law, health law, intellectual property law, artificial intelligence, data protection and digital rights in general. She is particularly interested in how these diverse fields intersect for the provision of innovative and holistic solutions to societal issues and for the benefit of posterity. She aims to further enhance these interests under the artificial intelligence and data governance centres at CIPIT.
Lilian Olivia Orero:
Lilian Olivia Orero is an Advocate of the High Court of Kenya. She was previously a Researcher with Berkman Klein Center for Internet & Society at Harvard University. Her interests lie in the intersection of gender studies, data governance and artificial intelligence.
Dan Allan Kipkoech:
Kipkoech holds an LL.B from the University of Nairobi and is currently pursuing an LL.M in Intellectual Property and Information Technology Law from the same institution. Dan is particularly interested in data security. His current area of expertise is the interplay between data protection and artificial intelligence. In addition to being a member of the Kenyan bar, Dan has a strong interest in legal analysis and research in intellectual property. Dan is an avid researcher having worked for MG Law Advocates, the Women Economic Empowerment Hub, and the Volvo Research and Education Foundation.
Josephine Kaaniru is an upcoming lawyer and researcher who is passionate about tech policy research, advocacy and formulation. She is keen on ensuring that technological advancement does not interfere with human rights, but solves existing problems. Her research interests range from digital rights, data governance and AI policy.
Peace Kioko is an Advocates Training Program student at the Kenya School of Law and an LL.B Degree holder from Strathmore University. At CIPIT, she works on the United States-Kenya Strategic Trade and Investment Partnership (STIP) Project which delves into the intersection of the STIP with Intellectual Property, Data Protection and Digital Rights. She also takes a keen interest in academic research for IP and IT Law matters. Beyond this, she is passionate about the fair treatment and equitable status of all individuals and social groups within the state.