Factors 2 and 3 Weigh Against Google’s Fair Use Defense

Note: This is a continuation from Amici Explain Why Google’s Copying of Oracle’s APIs is Not Fair Use

In addition to exposing the flaws in Google’s factor 1 transformative purpose argument, amici supporting Oracle demonstrate how factors 2 and 3 also weigh against any fair use defense. As a reminder, factor 2 addresses the nature of the copyrighted work and factor 3 addresses the amount and substantiality of the portion used in relation to the copyrighted work as a whole. Factor 2 also considers whether the work was published or unpublished, affording greater protection to unpublished works. Factor 3 considers not only the quantitative amount copied but also the qualitative value of what was copied. This is often referred to as the “heart of the work” test. Below are excerpts from the briefs explaining why factors 2 and 3 weigh against Google’s fair use defense.

Concerning Fair Use Factor 2: Nature of the Copyrighted Work

• Former Congressmen’s Brief:
  • “On the second factor, Google argues that the jury in this case had “ample basis” to find that Google’s copying of Oracle’s declaring code was fair, because the code is “functional, not creative.” Brief for the Petitioner, supra, at 46. But allowing a computer program’s functional purpose to always weigh conclusively in favor of a finding of fair use would contravene not only Congress’s instruction that all four statutory fair-use factors “be considered,” but also its command that the analysis look at “the use made of a work in any particular case.” 17 U.S.C. ¤ 107 (emphasis added).”
• American Legislative Exchange Counsel’s Brief:
  • “It is without question that computer programs are the result of intellectual labor. As such, for the purpose of fair use, they fall within the intended protections of copyright law.”
• Creators Rights Organizations Brief:
  • “To provide further guidance on the proper application of the fair use analysis, the Court should take this opportunity to emphasize the importance of considering the second factor and to reiterate that all of the fair use factors matter and should be considered.”

Concerning Fair Use Factor 3: Amount and Substantiality of the Portion Taken

• RIAA et al. Brief:
  • “Generally, however, the third factor weighed against a finding of fair use because Google copied “11,330 more lines [of code] than necessary” and because “no reasonable jury could conclude that what was copied was qualitatively insignificant.”
• Journalism Professors’ Brief:
  • “As the Federal Circuit explained, “no reasonable jury could conclude that what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the android platform. Google conceded as much when it explained to the jury the importance of the APIs to the developers it wished to attract.””
• Association of American Publishers’ Brief:
  • “Here, the Federal Circuit recognized under the third factor that “there is no inherent right to copy in order to capitalize on the popularity of the copyrighted work or to meet the expectations of intended customers. Taking those aspects of the copyrighted material that were familiar to software developers to create a similar work designed to be popular with those same developers is not fair use.””
• Creators Rights Organizations’ Brief:
  • “In Campbell, the Court described the analysis of the third factor as taking no more than “necessary” for the purpose of the use. The Court should clarify that the third factor should be evaluated in each instance, and that taking the entire work should weigh against fair use which is not the same as saying taking an entire work is never fair use. The amount and substantiality of the use is simply one of the factors that should be considered among the others, even when a use is considered transformative.”
• Synopsys’s Brief:
  • “The amount of copying alone has never determined whether the use of a work is “fair.” Taking fifty-five seconds out of a film that lasts an hour and 29 minutes (1.5%) can still be so substantial as to not be “fair.” Instead, the proper focus is on “the qualitative nature of the taking.” Imagine missing an entire whodunit film except for the last three minutes where the killer is revealed. The last three minutes may not be “substantial,” but still be highly significant as a qualitative matter.”