Monday, February 24, 2020

Supreme Court's case Oracle v. Google shows polarised views on copyright and fair use

By Emmanuel Legrand

The US Supreme Court will start hearing arguments in the Oracle v. Google case on March 24, 2020, in what Google described as “the copyright case of the decade.” The case shows deep divides between the proponents of copyright protection and the advocates of “fair use.”

  Google is asking the Supreme Court to reverse the decisions of the US Court of Appeals for the Federal Circuit, which overturned a district court ruling that found that the use by Google of Oracle-owned Java software fell under “fair use” provisions of copyright law. Google was accused by Oracle of using without license 11,000 lines of Java's original code.

filed its brief with the Supreme Court, while Google’s reply brief is expected on March 13, 2020. Oral argument will take place in Washington, DC on March 24, 2020. The Supreme Court is expected to issue its decision by the end of June 2020.

Rewrite copyright protection rules

  "Google is attempting to rewrite the fundamental copyright protections that fuel innovation in this country,” said Oracle General Counsel Dorian Daley.

  "Openness and interoperability have helped developers create a variety of new products that consumers use to communicate, work, and play across different platforms,” responded in a statement Google Policy Communications Senior Associate Jose Castaneda.

  Project Disco has identified 32 amicus briefs supporting Oracle, from the Department of Justice (DoJ) to a wide range of copyright-driven sectors, such as Hollywood studios (MPA), major record labels (RIAA) and independents (A2IM), music publishers (NMPA, AIMP), rights organisations (ASCAP, BMI), songwriters (Songwriters Guild of America, SONA), authors (Authors' Guild), book publishers (APA), media organisations (News Media Alliance), copyright experts (Sandra Aistars, former Register of Copyrights Ralph Oman), and conservative think tanks.

Not just about software

  Meanwhile, 26 briefs have come in support of Google, mostly tech and software firms, such as Microsoft and IBM, trade organisations such as the Computer & Communications Industry Association (CCIA) and the Internet Association (IA), and advocacy groups such as the Electronic Frontier Foundation and Public Knowledge.

  [A comprehensive summary of the various briefs in favour of Oracle can be found on the Project Disco site
here and the briefs supporting can be found here. All the briefs are available of the Supreme Court's site.]

  Austin, Texas-based lawyer Chris Castle penned the brief on behalf of the Songwriters' Guild of America, Swedish songwriter Helienne Lindvall, American singer, songwriter and producer Blake Morgan and David Lowery, frontman for Cracker and Camper van Beethoven, and activist for the cause of creators. Castle told Creative Industries Newsletter that although the case was about software, its relevance resonated way beyond, not least because of Google's use of “fair use” as the foundation of its defense.

  "What’s at stake is Google’s hoped for expansion of fair use to cover verbatim copies on a mass scale,” explained Castle. “We go into this in some detail in the brief. That could make fair use like the mouse that ate New York.”  

Clarify the fair use doctrine

  Castle said that the case can impact all creative sectors. “I think it’s a mistake to see it as a software case that doesn’t involve any other creator group just because it’s Oracle," said Castle. He added: “The point of the brief is to get the perspective of independent artists and songwriters in front of the court so the justices can see an argument about why we are all in this together in the copyright house.”

  Central to the case is the notion of “fair use.” In their filing, various music industry organisations, including the RIAA, 
argue that “any analysis or clarification of the fair use doctrine by the Court in this case will have an immediate and enduring impact on amici’s members, who include those who invest in, manufacture, license, and distribute music, as well as the writers and artists who create it.”

  The Motion Picture Association
concurred: “The unintended consequences of applying legal concepts developed in fair use cases involving purely expressive works to a software case like this one, especially in the radical manner advocated by Google, could cause a seismic shift away from long-established law and legitimate marketplace expectations.”

Harmful consequences

  The MPA added, “The harmful consequences would be felt not only in the instant case, but also across the creative industries, should the resulting analysis be inappropriately applied to future cases involving traditional, purely expressive works.”

  Filing on behalf of the United States, Solicitor General Noel Francisco and assistant attorney general of the DoJ's Civil Division Joseph Hunt, found that Oracle "holds a valid copyright" over the Java code and that Google's policy arguments were “unpersuasive." 

  Their filing reads: "Petitioner has not identified any industry understanding that software 'interfaces' are per se uncopyrightable, and concerns about the interaction of copyright and emerging technology do not justify such an atextual rule."

Threat to software development

  Microsoft, on the other hand, argued that by overturning the jury’s verdict favourable to Google, the court took “an un-duly narrow view of fair use that elevates functional code to the same level of copyright protection as the creative expression in a novel. That ruling threatens modern paradigms of software development.”

  In a brief filed on behalf of behalf of 72 intellectual property law scholars, Professor Pam Samuelson
wrote that “programmers should have to write their own implementation code, as Google did, but interfaces that enable compatibility should be free from copyright restrictions,” adding that the Federal Circuit’s “copyrightability ruling in Oracle misconstrued the text of the Copyright Act.”  

  Google welcomed the support shown by the various authors of the amicus briefs. “A remarkable range of consumers, developers, computer scientists, and businesses agree that open software interfaces promote innovation and that no single company should be able to monopolise creativity by blocking software tools from working together," said Google's Castaneda.

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