As you probably remember, a jury decided in Google's favor after a somewhat wacky trial that its use of some of the Java APIs was considered fair use. Oracle, of course, isn't going down quietly. It immediately asked the judge, William Alsup, to reject the jury's verdict, which he refused to do. Everyone expects that Oracle will appeal this as high as it can go, though its chances aren't great.
In the meantime, though, Oracle isn't done trying every possible door at the district court level. Last week it simply asked for a new trial in what I can only describe as Oracle's sour grapes motion. It starts out by claiming that "the verdict was against the weight of the evidence" and thus a new trial is necessary. And then it whines about a whole bunch of other issues, including Google's plans to use Android on computers, meaning that the "harm" portion of the trial was unfairly limited to just tablets and phones. It also whines about certain limitations and exclusions of information it was not allowed to present. These are purely "waaaaah, we lost, fix it, waaaaaah" kinds of arguments. The court also excluded lots of Google evidence as well, and Oracle may not really want to revisit some of that either. You can read the full document below or at the link above, but analyzing all of it is pretty silly. It's strictly a sour grapes argument that is unlikely to go anywhere.
At the same time, Oracle filed yet another motion for judgment as a matter of law... that also seems unlikely to go anywhere. Here, though, the argument is basically that the jury got fair use wrong. The argument here is pretty laughable. It goes through each of the four factors and argues why the jury got it wrong. Now, it's true, as some have argued, that a court can take the four fair use factors and basically come to any conclusion it wants, but it's hard to see Judge Alsup doing that here. It would be shocking to see him do so actually. And, rather than go through each argument, I'll just present the table of contents of Oracle's filing here so you can see how desperate the company is:
Basically, Oracle is continuing to falsely pretend that fair use only applies to non-commercial use (it doesn't), and that creating something new with an API isn't transformative unless it's like artwork or something (this is wrong). Oracle's interpretation of fair use is not supported by the history or case law of fair use, and it would be shocking to see the court accept it here.
Meanwhile, on the flip side, Google is looking to punish Oracle's lawyers and asking for sanctions against them for revealing in open court sensitive information that had been sealed by the court.
On January 14, 2016, Oracle’s counsel Annette Hurst disclosed in open court representations
of sensitive confidential financial information of both Google and third-party Apple Inc., as well as
extremely confidential internal Google financial information.... After Ms. Hurst’s
improper disclosures, Oracle and its counsel neither sought to remedy the effects of the disclosures
nor acknowledged their wrongdoing. They instead refused to take responsibility for the disclosures,
claimed they were inconsequential because Oracle hoped to use the information at trial (which it
never did), and even argued that Google’s motion to seal the third party Apple information—which
Judge Ryu subsequently granted,... —was “merely a delaying tactic.” ... Within days of the disclosures, and following Oracle’s failure to take
remedial action, this information became headline news for major news outlets, at least one of which
noted that, thanks to Ms. Hurst, the press could finally report on confidential information that had
theretofore been only a subject of speculation.
Oracle’s disclosures and its subsequent actions reveal a profound disregard for this Court’s
Protective Order and for other parties’ confidential information. Google and third party Apple were
harmed by Oracle’s counsel’s disclosure regarding the terms of a significant and confidential
commercial agreement. Google believes it is important, both for this case and for other cases in this
District, for the Court to make clear that Oracle’s counsel’s actions were improper, that Oracle’s
excuses for the disclosures are invalid, and that Oracle’s failure, after the fact, to cooperate in
remedying the disclosures was inconsistent with the Protective Order.
Disclosing confidential/sealed information in court is a pretty big deal, though I have no idea how the court will rule on this matter.
Either way, it's safe to say that there's little love lost between Google and Oracle (and their lawyers).
Earlier this month, we wrote briefly about the Supreme Court's second Kirtsaeng ruling, which focused on the issue of fee shifting in copyright cases. We didn't spend that much time on it (and hadn't covered the run up to the Supreme Court either). We had basically assumed that the first Kirtsaeng ruling from the Supreme Court, about whether or not the First Sale Doctrine applied to goods outside the US, was the real legacy of the Kirtsaeng fight, rather than a more mundane issue about fee shifting -- especially when the more recent Kirtsaeng ruling was basically just "courts need to look at more than just if the original lawsuit was 'objectively reasonable'" (but fails to give much guidance about what else should be looked at). Yes, we noted, this may ward off some bogus copyright lawsuits, depending on what standards the courts start to coalesce around, but there wasn't much big news in the ruling.
However, copyright expert Jonathan Band spotted something important that many folks missed. Buried within the ruling are some statements about the purpose of copyright that may become quite useful in future cases. Specifically, it looks like the Supreme Court has just blessed the fact that copyright should encourage people to build upon existing works, and appears to be giving a nod to a broad interpretation of fair use that says that building on the works of others is a key part of the purpose copyright itself.
The Court quoted its 1994 decision in Fogerty v. Fantasy that “copyright law ultimately serves the purpose of enriching the general public through access to creative works.” The Court then stated, “the statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors’ creations while enabling others to build on that work.”
The Court’s focus on the subsidiary aim of “enabling others to build on that work” goes beyond its previous pronouncements concerning how to achieve the objective of enriching the public through access to works. In 1984, in Sony v. Universal, the Court recognized that defining the appropriate scope of copyright protection “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other…” In 1991, in Feist v. Rural Telephone, the Court stated that “copyright assures authors the right to their original expression, but encourages others to build freely on the ideas and information conveyed by a work.”
Thus, in these earlier cases, the Court discussed building on “the ideas and information conveyed by a work.” But in Kirtsaeng, the Court did not limit the reuse to “the ideas and information conveyed by a work;” rather, it more broadly addressed building “on that work.” Presumably the Kirtsaeng Court was referring not only to the ideas and information in the work, but also the expression in the work–to the extent use of the expression served “the purpose of enriching the general through access to creative works.” In other words, the Kirtsaeng Court was referring to fair use and other exceptions and limitations in the Copyright Act.
Band notes that hopefully this will help serve as a reminder to Congress about the important public interest objectives built into copyright. But I think it may start to show up in lots of other fair use lawsuits as well...
We've been covering the still going lawsuit by CBS and Paramount against Axanar Productions for making a crowdfunded fan film that they claim is infringing because it's looking pretty good. Things got a little weird last month when the producer of the latest Star Trek film, JJ Abrams, and its director, Justin Lin, basically leaked a bit of news saying that after they had gone to Paramount, the studio was going to end the lawsuit. At the time, Paramount said that it was in "settlement discussions" and that it was "also working on a set of fan film guidelines."
We pointed out that we were concerned about what those guidelines might entail, and worried that they would undermine fair use. In the meantime, as settlement talks continued, the case moved forward. I'm still a little surprised that the two sides didn't ask the court for more time to continue settlement talks, as that's not that uncommon, and it's something that a judge often is willing to grant if it looks like the two sides in a dispute can come to an agreement. But, without that, the case has continued to move forward with ongoing filings from each side.
In the meantime, however, the StarTrek.com website, run by CBS and Paramount, has now posted those "fan film guidelines" and they are absolutely ridiculous. The Axanar team sums it up nicely by saying that:
The CBS "Guidelines" for Fan Films basically make it impossible for fan films to continue as they have.
The first item, for example, completely rules out Axanar's plan for a feature length fan film:
The fan production must be less than 15 minutes for a single self-contained story, or no more than 2 segments, episodes or parts, not to exceed 30 minutes total, with no additional seasons, episodes, parts, sequels or remakes.
And there's another one that's clearly targeted at Axanar:
The fan production must be a real “fan” production, i.e., creators, actors and all other participants must be amateurs, cannot be compensated for their services, and cannot be currently or previously employed on any Star Trek series, films, production of DVDs or with any of CBS or Paramount Pictures’ licensees.
I don't quite see how or where that fits into fair use's rules...
Another one clearly targeted at Axanar -- which raised over a million dollars in Kickstarter and IndieGoGo crowdfunding campaigns:
CBS and Paramount Pictures do not object to limited fundraising for the creation of a fan production, whether 1 or 2 segments and consistent with these guidelines, so long as the total amount does not exceed $50,000, including all platform fees, and when the $50,000 goal is reached, all fundraising must cease.
That seems rather limiting.
Some of the other terms are more reasonable, but it seems clear that these guidelines are pretty specifically designed to cut off an Axanar style fan film, and seem to be trying to cut off a lot more than fair use almost certainly allows. While for the sake of the folks working on Axanar, I still hope that this settles amicably, it might be a lot nicer to have Axanar be able to win a fair use claim in court over this.
Lots of people are talking about the fact that President Obama went on the Tonight Show with Jimmy Fallon on Thursday night to "slow jam the news" and play up a bunch of his accomplishments while stumping for the TPP agreement. If you haven't seen it yet, it's here:
Here's the key part on TPP:
"I believe it is of the utmost importance to work alongside other leaders. That's why I signed the Iran nuclear deal, that’s why we reopened diplomatic ties with Cuba, and that is why I negotiated the new trade deal called the Trans-Pacific Partnership, or TPP," Obama said, to the backdrop of the Roots.
"Now, hold on there, Prez dispenser. Are you saying you’re down with TPP?" Fallon responded.
"Yeah, you know me. Look, Jimmy, the TPP allows American businesses to sell their products both at home and abroad. The more we sell abroad, the more higher-paying jobs we provide at home. It’s that simple," Obama said.
"So what are you saying, that this trade deal would put Americans back to work, work, work, work, work?" Fallon said, singing Rihanna as Obama joined in.
The President is being misleading, but we'll get to that. The really amusing point, as pointed out by Johnjac is that the little Rihanna homage breakdown there is legal thanks to fair use. But the TPP, contrary to the claims of some, actually looks to limit fair use, by putting in place a test (that US fair use wouldn't currently qualify for) -- and making any fair use optional.
So... that seems like a bit of irony. But it's the kind of thing almost no one is going to comment on, because ha ha, the President is singing and it's funny.
As for the claim that the TPP allows American businesses to sell their products both at home and abroad, that's... not really true. Most American businesses can already sell their products at home (obviously) and abroad. The TPP only removes tariffs and other restrictions in a few limited cases. It's not really going to open up that many markets. And as we've seen with other trade deals (e.g., NAFTA) it's arguable how much it helps to put Americans who are out of work "back to work." But if this were just about trade then he might have a point, but as we've pointed out over and over again, trade is such a small part of the TPP. So much more of it is about "non-tariff barriers" which is basically another way of talking about setting up protectionist laws like stronger copyright and patent requirements.
This is extremely unfortunate, but not surprising. Google has made some noise sounding supportive of the TPP over the past year or so, and now it's put out a blog post strongly supporting the agreement, and claiming that it's good for intellectual property and the internet. The company is wrong. The statement is right about a big problem on the internet -- the growing restrictions and limitations on the internet in different jurisdictions:
But Internet restrictions -- like censorship, site-blocking, and forced local storage of data -- threaten the Internet’s open architecture. This can seriously harm established businesses, startups trying to reach a global audience, and Internet users seeking to communicate and collaborate across national borders.
Yes, absolutely. And the TPP only tackles a tiny part of that -- and in some ways makes other aspects worse. But that's not what Google says. Instead, it misrepresents what the TPP really does. The post is correct about the issue of cross-border data flows and localization -- and I agree that these are good things -- but they're small parts of an agreement that has so many other problems:
The Internet has revolutionized how people can share and access information, and the TPP promotes the free flow of information in ways that are unprecedented for a binding international agreement. The TPP requires the 12 participating countries to allow cross-border transfers of information and prohibits them from requiring local storage of data. These provisions will support the Internet’s open architecture and make it more difficult for TPP countries to block Internet sites -- so that users have access to a web that is global, not just local.
It's after that where the post goes off the rails:
The TPP provides strong copyright protections, while also requiring fair and reasonable copyright exceptions and limitations that protect the Internet. It balances the interests of copyright holders with the public’s interest in the wider distribution and use of creative works -- enabling innovations like search engines, social networks, video recording, the iPod, cloud computing, and machine learning. The endorsement of balanced copyright is unprecedented for a trade agreement. The TPP similarly requires the kinds of copyright safe harbors that have been critical to the Internet’s success, with allowances for some variation to account for different legal systems.
This is just wrong, and it's the most frustrating part of the post. The TPP expands copyright rules to ridiculous levels in many countries, including extending copyright terms at a time when there is no sound basis for advocating for extending copyright terms. And the "requiring fair and reasonable copyright exceptions and limitations that protect the Internet" is just wrong. Yes, it's true that for the first time the USTR actually acknowledges user rights in such an agreement. In the past, all such trade agreements only focused on expanding copyright holder rights. So you can argue that's progress. But the details showed that it's not creating "fair and reasonable copyright exceptions and limitations," but instead pushing a misleading tool that will limit the way countries can explore fair use, and (even more important) makes the fair use stuff optional. Google claiming that it requires such things is just... wrong.
The TPP advances other important Internet policy goals. It prohibits discrimination against foreign Internet services, limits governments’ ability to demand access to encryption keys or other cryptographic methods, requires pro-innovation telecom access policies, prohibits customs duties on digital products, requires proportionality in intellectual property remedies, and advances other key digital goals.
Yes, this part is also a good thing that it's in the TPP, but (1) it's so outweighed by bad things that it's really not that big of a deal and (2) the issues around encryption and telecom access policies are not nearly as clear cut in the TPP as this blog post implies, nor are they necessary to do via the TPP process.
As I've said before, I'm a supporter of free trade, generally (unlike many who oppose the TPP). But the TPP is not about free trade, other than at the margins. There's so much in there that's about blatant protectionism and supporting certain business models over others. Of course, that's how the trade game is played these days. Companies get big enough to influence the USTR to advocate for closed room deals that favor them. And Google is big enough to play that game. This public support of the TPP is a part of that game, but it's unfortunate. The company could have and should have taken a stand on this, noting the things that are important in the TPP, but also being honest about the disastrous IP section and other problems in the agreement (such as the corporate sovereignty provisions that will almost certainly come back to bite Google and others).
There are good trade agreements to be made. And they can focus on things like protecting a free and open internet, and creating important safe harbors for communication and innovation. But the TPP is not that agreement -- and it's disappointing that Google has decided to jump on board, rather than highlight the very clear and very real problems of the TPP.
Obtaining formal permission to use three quotations from New York Times articles in a book ultimately cost two professors $1,884. They’re outraged, and have taken to Kickstarter — in part to recoup the charges, but primarily, they say, to “protest the Times’ and publishers’ lack of respect for Fair Use.”
These professors used quotes from other sources in their book about press coverage of health issues, but only the Gray Lady stood there with her hand out, expecting nearly $2,000 in exchange for three quotes totalling less than 300 words.
The professors paid, but the New York Times "policy" just ensures it will be avoided by others looking to source quotes for their publications. The high rate it charges (which it claims is a "20% discount") for fair use of its work will be viewed by others as proxy censorship. And when censorship of this sort rears its head, most people just route around it. Other sources will be sought and the New York Times won't be padding its bottom line with ridiculous fees for de minimis use of its articles.
The authors' Kickstarter isn't so much to pay off the Times, but more to raise awareness of the publication's unwillingness to respect fair use.
The Times' claim has no legal basis, and represents an arrogant rejection of the principle of fair use that is ironic for an organization that presents itself as a defender of freedom of expression.
[...]
We could have paid this amount out of research funds from our University, but it seemed to us unethical to use taxpayer funds to subsidize a big media corporation and undermine a right that belongs to all scholars and the public in general. So we paid out of pocket (our advance on royalties for the book will be $800).
The Times statement in response momentarily reflects on its status as a beneficiary of fair use protections, but swiftly moves past that brief digression to let its lawyers talk.
The Times strongly supports fair use, which is a complicated and highly confusing concept of Copyright Law. We are regularly on both sides of the fair use issue, as both content creators and users.
It would be impossible for us to make ‘fair use’ judgments for the vast number of people and organizations that wish to use New York Times content — we leave that to them and their attorneys to work out for themselves, just as our lawyers make judgments about fair use for The New York Times. If those third parties don’t feel comfortable that their proposed use of our content is a fair use, then we are happy to make the content available through our licensing program.
Our journalism costs money to produce and we share royalties with the reporters, photographers and others who helped create it.
Somehow, I doubt the lower level, non-attorney staff members support the Times decision to charge $1,844 for three quotes ranging from 69 to 102 words. Those closer to the street (as it were) likely have more sympathy for authors who've been handed a bill for quotations that is more than double the amount of their advance.
Following the jury verdict finding in favor of fair use for Google and its use of Oracle's Java APIs (if you haven't yet, you should listen to our podcast about the trial), Oracle asked Judge Alsup to basically ignore the jury ruling. Specifically, Oracle asked Judge Alsup to rule that "as a matter of law" that Google's use was not fair use, thus negating the need for the jury to settle any dispute. This is actually how the original Alsup ruling in this case came about. After the first trial had a jury find Google had infringed, Alsup said that, as a matter of law, APIs were not eligible for copyright protection and effectively dumped the jury ruling... until the appeals court overturned that ruling and sent the case back for a second trial focused solely on the fair use question.
This time, however, Judge Alsup was not at all willing to say that either side prevailed as a matter of law, and has declared the jury verdict final. Alsup's explanation for denying the motions to ignore the jury is well argued, and basically said "look, there was a clear trialable issue here and the jury handled it":
Under the law as stated in the final charge and on our trial record, our jury could
reasonably have found for either side on the fair use issue. Our trial presented a series of
credibility calls for our jury. Both sides are wrong in saying that all reasonable balancings of
the statutory factors favor their side only. To the extent either side now quarrels with the law
as stated in the final charge, the time for those arguments was at or before the
charging conference or eventually on appeal. For now, at the district court, the jury instructions
control.
Alsup notes that, of course Oracle is going to appeal, so as with last time, he adds some background potentially directed at the appeals court more than either of the parties in the case. Concerning the main line of attack that Oracle is expected to use on appeal -- over the instructions to the jury concerning fair use, Alsup notes that there was nothing wrong with the instructions at all, and that both parties had plenty of chances to weigh in on those instructions:
The fair use instructions followed largely the review of fair use law as set forth
in the Federal Circuit’s opinion except for modifications urged by counsel and to account for
how the case was actually tried. The final jury charge culminated an exhaustive and iterative
process of proposals by the judge followed by critiques by counsel. Months before trial, the
Court informed both sides that it expected to use the Federal Circuit’s opinion canvassing
fair use law as the starting point and requested briefing from the parties addressing what
modifications should be made. After reviewing those comments,
the Court circulated a first proposed charge on fair use and requested critiques.
Counsel submitted their critiques a week later with replies the following week. In light of the
critiques, a second draft made substantial revisions, asking counsel to
meet and confer to reach an agreed-on instruction in light of that proposal and to submit briefs
and responses regarding the areas of disagreement. After reviewing the further briefs and
responses, the Court next circulated “penultimate instructions on fair use,” a third draft, and
invited a third round of comment. Those critiques also led to modifications
and a final notice of the pre-instruction on fair use to be read to the jury before the start of the
evidence. Counsel (and the jury) were advised that the final instructions at the
end of the evidence would possibly be adjusted to reflect the way the case was tried (and, in
fact, some minor modifications did occur). During the trial, the judge sought briefs on several
issues in play as the evidence came in. Based thereon, a notice of the proposed final charge
circulated the night before the close of evidence. At the charging conference,
counsel raised both new points and old ones (although they were permitted to rest on prior
critiques). Final modifications followed. The jury was charged accordingly
Alsup also goes into great detail (again, remember that he taught himself Java to better understand the issues in this case the first time around -- and it shows here) discussing the dividing line between Java and not just the APIs, but the "necessary" APIs and the non-necessary APIs. Check out the following, excerpted at great length, to show how thoroughly deep into the weeds Judge Alsup got to understand this case (for clarification, the term "SSO" stands for "Structure, Sequence, and Organization" and was a key issue in the case):
Oracle has portrayed the Java programming language as distinct from the Java API
library, insisting that only the language itself was free for all to use. Turns out, however, that in
order to write at all in the Java programming language, 62 classes (and some of their methods),
spread across three packages within the Java API library, must be used. Otherwise, the
language itself will fail. The 62 “necessary” classes are mixed with “unnecessary” ones in the
Java API library and it takes experts to comb them out. As a result, Oracle has now stipulated
before the jury that it was fair to use the 62 “necessary” classes given that the Java
programming language itself was free and open to use without a license....
That the 62 “necessary” classes reside without any identification as such within the Java
API library (rather than reside within the programming language) supports Google’s contention
that the Java API library is simply an extension of the programming language itself and helps
explain why some view the Java API declarations as free and open for use as the programming
language itself. At least to the extent of the 62 “necessary” classes, Oracle agrees.
All this said, our fair use issue, as presented to our jury, came down to whether someone
using the Java programming language to build their own library of Java packages was free to
duplicate, not just the “necessary” functions in the Java API library but also to duplicate any
other functions in it and, in doing so, use the same interfaces, i.e., declaring code, to specify the
methods — so long as they supplied their own implementing code.
Oracle’s argument in the negative amounts to saying: Yes, all were free to use the Java
programming language. Yes, all were free to use the 62 necessary classes from the Java API.
Yes, all were free to duplicate the same functionality of any and all methods in the Java API
library so long as they “re-implemented” (since copyright does not protect functionality or
ideas, only expression). But, Oracle would say, anyone doing so should have scrambled the
functionalities among a different taxonomy of packages and classes (except as to the 62
“necessary” classes). That is, they should have used a different SSO.
Here, the undramatic yet practical point comes into sharp focus. If, as it was entitled to
do, Google had simply reorganized the same functionality of the 37 re-implemented Java
packages into a different SSO (taking care, however, not to disturb the 62 necessary classes and
their three respective packages), then Java programmers, in order to use the Java system as well
as the reorganized Android system, would have had to master and keep straight two different
SSO’s as they switched between the two systems for different projects. Our jury could
reasonably have found that this incompatibility would have fomented confusion and error to
the detriment of both Java-based systems and to the detriment of Java programmers at large.
By analogy, all typewriters use the same QWERTY keyboard — imagine the confusion and
universal disservice if every typewriter maker had to scramble the keyboard. Since both
systems presupposed the Java programming language in the first place, it was better for both to
share the same SSO insofar as they offered the same functionalities, thus maintaining usage
consistency across systems and avoiding cross-system confusion, just as all typewriter
keyboards should use the QWERTY layout — or so our jury could reasonably have found.
The same could have been reasonably found for the second purpose of the declaring
code — specifying the inputs, outputs, and their type. To the extent a specification could be
written in more than one way to carry out a given function, it was nevertheless better for all
using the Java language to master a single specification rather than having to master, for the
same function, different specifications, one for each system, with the attendant risk of error
in switching between systems — or so our jury could reasonably have found.
In terms of the four statutory factors, this consideration bears significantly upon the
nature and character of the use (the First Factor), the functional character of the declaring code
(the Second Factor), and the limited extent of copying (the Third Factor), that is, Google copied
only so much declaring code as was necessary to maintain inter-system consistency among Java
users. Google supplied its own code for the rest. Overall, avoiding cross-system babel
promoted the progress of science and useful arts — or so our jury could reasonably have found.
Honestly that's one of the most thorough and clear descriptions I've seen to date of the fair use question here.
Another issue that came up was whether or not Oracle showed that Google acted in "bad faith." Oracle used a number of emails (often taken out of context) to argue that Google knew it was infringing on Sun's copyrights (though, many of the details suggested the actual concern was more about trademark -- or involved people who didn't really understand the nuances of copyright law). Judge Alsup points out that it's not even clear "good faith" or "bad faith" are even allowed as considerations in fair use analysis, though he notes that he allowed Oracle to pursue it -- and then allowed Google to build a case for "good faith" in response. For the question of whether or not this is an issue "as a matter of law," Alsup notes that it's clearly one that a jury should decide (and did, in Google's favor):
... our jury could reasonably have concluded that Google’s use
of parts of the Java API as an accelerant was undertaken based on a good faith belief that
at least the declaring code and SSO were free to use (which it did use), while a license was
necessary for the implementing code (which it did not use). Our jury could reasonably have
concluded that Google’s concern about making an enemy of Sun reflected concern about the
parties’ business relationship in light of the failed negotiations that would have brought Sun
in as a major partner in Android, rather than concerns about litigation. Mental state was and
remains a classic province of the jury.
The judge also rejects Oracle's claim that no one could possibly argue that direct copying of the APIs was "transformative." That's not how the "transformative" test works, Alsup notes, pointing to previous fair use cases, such as the Campbell case over the parody of the song "Pretty Woman," which involved direct copying
In Campbell, the accused work (a rap parody song) used the same bass riff and an
identical first line of Roy Orbison’s “Oh, Pretty Woman.” The parody also included exact
copies of certain phrases in subsequent lines and maintained the same structure and rhyme
scheme throughout. The copied elements served the same function in the accused work as in
the original. Nevertheless, the Supreme Court acknowledged that the transformative purpose
of parody had a “need to mimic an original to make its point,” and thus, warranted copying some
exact elements. The question of the extent of the copying permissible to serve
that function was the subject of the inquiry of the third statutory fair use factor. So too here.
Android did not merely incorporate the copyrighted work “as part of a broader work,”
without any change to the purpose, message, or meaning of the underlying work. Android did not merely adopt the Java platform wholesale as part of a broader
software platform without any changes. Instead, it integrated selected elements, namely
declarations from 37 packages to interface with all new implementing code optimized for mobile
smartphones and added entirely new Java packages written by Google itself. This enabled a
purpose distinct from the desktop purpose of the copyrighted works — or so our jury could
reasonably have found.
In light of the foregoing, our jury could reasonably have concluded that Google’s use of
the declaring code and SSO of 37 API packages from the desktop platform work in a full-stack,
open-source mobile operating system for smartphones was transformative.
The ruling goes on like this, over and over again pointing out that the jury's decision is not so crazy and has support in the law. And then it concludes with a big slap to Oracle, noting that it seems to be making completely inconsistent arguments:
Stepping back, it seems hard to reconcile Oracle’s current position with the one it
took just as the trial was getting underway, namely, that fair use is an equitable rule of reason
and each case requires its own balancing of factors. In its critique of the first proposed jury
instructions on fair use..., Oracle argued that the Court’s draft characterization
of the policy of fair use contravened the legislative history, and Oracle cited the following
language from a Senate report on the 1976 Copyright Act (which language was repeated in the
House Report):
Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has
ever emerged. Indeed, since the doctrine is an equitable rule of
reason, no generally applicable definition is possible, and each
case raising the question must be decided on its own facts.
.... The Court adopted Oracle’s proposed instruction in the next
draft as well as in the final charge to the jury, stating: “Since the doctrine of fair use is an
equitable rule of reason, no generally accepted definition is possible, and each case raising the
question must be decided on its own facts”....
Now, Oracle argues instead that this case must be decided as a matter of law, and not
“on its own facts.” Oracle argues that Google’s copying fails to resemble any of the statutory
examples of fair use listed in the precatory language of Section 107, again contradicting its
earlier position that “no generally applicable definition is possible.”
Once again, much of this seems more addressed to the appeals court than the parties. Unfortunately, last time around that didn't work, as the appeals court got it wrong. Now we'll have to wait and see what happens this time around.
Show of hands: who remembers Axl Rose? Last we here at Techdirt checked in on him, Rose was busy suing video games and hassling music bloggers over album leaks. The younger among you may chiefly be familiar with his Axl-ness via a somewhat popular string of internet memes centered on some rather unflattering pictures of the musician taken from a concert in 2010.
There are, like, tons of these. And, as you can surely understand, Rose isn't pleased that these memes are going around. Hell, we all have photos taken of us that we probably don't find flattering, and Father Time ends up foisting pounds and wrinkles on all of us that we'd rather not have. What most of us don't do, however, is cook up a copyright claim on a photograph we didn't take and try to get Google to remove every use of the picture from the internet. Rose has done that. And you'll never guess who he employed to help him do so!
“Copyright image of Axl Rose. Please be advised that no permission has been granted to publish the copyright image so we cannot direct you to an authorized example of it,” the notices sent by Web Sheriff on behalf of the singer read.
Hi there, Web Sheriff! In between money-laundering, abusing human rights, and generally breaking roughly all the laws over here at Techdirt, we had just enough time to notice you have a strange view on how copyright law works! This comes as only a mild shock to us, given how confused you folks appear to be on all the other laws you routinely talk about, but let's give this a go, shall we?
The DMCA notices all revolve around photos taken in 2010 at a concert. Those photos were taken by Boris Minkevich and published by the Winnipeg Free Press.
TorrentFreak tracked down the photographer who captured this moment to see if he was aware of these takedown efforts. We eventually found Boris Minkevich at the Winnipeg Free Press where his fine work is published in all its glory. During our initial discussions a few things became clear. Firstly, Minkevich definitely took the photo. Second, Minkevich had no idea that Rose was trying to “cleanse the web” of his photo. Perhaps the first reaction here is that Rose has no right to take down Minkevich’s photo. Since Minkevich was the one who took it, he must own the copyright, right? Web Sheriff doesn’t seem to think so.
“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company,” the company told TF in a statement.
Now, TorrentFreak reached out to Minkevich, who had no idea this takedown blitz was underway. He confirmed that some concerts do indeed make photographers sign these types of agreements, but couldn't recall if this concert included one or not. Web Sheriff, who certainly should be able to produce the agreement, having taken the lead on the copyright claims, isn't doing so. When asked, Web Sheriff's response was instead to insist that even if the photographer had not signed an agreement -- leading me to believe he probably didn't --, that Rose would still be able to claim ownership over the photo.
“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” TF was informed.
I would politely ask Web Sheriff what the sweet child of mine it is talking about here. Unless the photographer transferred copyright of the photo over to Axl Rose, the photographer retains copyright ownership over it. One would think that if any transfer had actually taken place, Web Sheriff would simply produce it, but it hasn't. If no transfer ever occurred, Web Sheriff is simply wrong in claiming copyright over the image. Indeed, Minkevich even mentioned to TorrentFreak that the photos are infringing, but that they are infringing on his and/or the Winnipeg Free Press' copyrights. And even that may not be true, given the room that Fair Use carves for using copyright images.
And the best part of this is that Axl Rose employed Web Sheriff to do all of this to keep the unflattering images out of the public sphere. How is that working out for him?
This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
conditional.
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
recordings.
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
permission.
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.
Over the past few weeks, a jury heard the second round of the copyright fight between Oracle and Google over whether Google's use of the Java APIs in Android constituted copyright infringement, or whether it was fair use. In the end, the jury went with fair use. Reporter Sarah Jeong watched the entire trial from the courtroom and joins us on the Techdirt podcast this week to discuss both the legal details and the various oddities of this particular trial.
