Last week’s deadline to file amicus briefs in Oracle v. Google saw a flurry of submissions in what could be one of the most influential copyright cases before the Supreme Court in over 25 years. More than thirty of those briefs—including a brief by the Copyright Alliance—were filed in support of Oracle, and they represent the expert opinions of creators, legal scholars, industry leaders, computer scientists, and the United States government. The Supreme Court has two critical issues to examine in the case; the copyrightability of Oracle’s API code and whether Google has a valid fair use claim. In honor of Fair Use Week, we are going to take a look at what some of the amici had to say about Google’s fair use defense.
When considering whether the use of a copyrighted work is a fair use, courts apply the four factors codified in Section 107 of the Copyright Act. These factors are (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, (4) the effect of the use upon the potential market for or value of the copyrighted work. Although all four factors are meant to be weighed together, courts have routinely put a larger focus on factors 1 and 4.
The last time the Supreme Court analyzed these factors was in the 1994 musical parody case Campbell v. Acuff-Rose Music, Inc.. In its seminal decision, the Court relied heavily on the transformative nature of the alleged infringing work, and in the years since, increasingly expansive interpretations of transformativeness have come to dominate factor 1 analyses. Like most alleged infringers who raise a fair use affirmative defense these days, Google has attempted to convince courts and the public that its use serves a transformative purpose and is therefore a fair use of the underlying software code. Below is a summary of arguments amici make against this transformative factor 1 proposition. In subsequent posts, we will take a closer look at what the briefs have to say about factors 2, 3, and 4.
- RIAA et al. Brief:
- “In the twenty-five years since Campbell, fair use jurisprudence has not only been inconsistent and unpredictable, but most troublingly has provided increasing immunity from infringement claims against unlicensed users of copyrighted works. There is a significant inter- and intra-circuit split regarding how the fair use analysis should be applied, and the amount of emphasis that should be placed on the various factors. Where transformation is emphasized, the expansion of what some courts will find to be “transformative fair use” both profoundly undermines the copyright protection contemplated in the Constitution and exceeds the scope of the fair use doctrine as codified by Congress.”
- Digital Justice Foundation’s Brief:
- “Because Google’s fair uses argument implies that it owes Oracle nothing, not even a reasonable royalty, Google has taken a Manichean, all-or-nothing view of fair use. It’s the view that all fair uses—no matter how profitable or how commercial—justify a complete absence of any compensation to the rightsholder(s) whatsoever. This view is a crude and problematic response to a recurring and complex fair use dilemma.”
- Ralph Oman’s Brief:
- “The fair use doctrine was created to distinguish between “fair” uses of protected works that generate further creativity, and infringing uses that merely seek to replicate or replace the original work.”
Concerning Fair Use Factor 1: Purpose and Character of the Use
- S. Government’s Brief:
- “Petitioner did not transform respondent’s code by incorporating a verbatim copy into the Android platform. Pet. App. 35a-37a. Just as a copier does not ordinarily give a copyrighted poem a “further purpose or different character” by including it in his own book of poetry, Campbell, 510 U.S. at 579, simply copying code from one computer program into the “new technological environment” of another computer program (Pet. Br. 37) is not transformative. Petitioner used respondent’s declaring code for the same purpose for which that code had originally been created, without changing its expression, meaning, or message.”
- Copyright Alliance’s Brief:
- “The Court of Appeals correctly held that a work is not transformative simply because it allegedly uses copyrighted material in a new medium for the same purpose.”
- “Google seeks to capitalize on the muddied caselaw— starting with the most expansive notion of “transformative” and then stretching the concept even further. This Court should reject Google’s arguments, and provide clarity to both creators and appellate courts as to what does and (critically) does not make a use “transformative” …. “Courts have been”—and should continue to be—“reluctant to find fair use when an original work is merely retransmitted in a different medium.”
- RIAA et al. Brief:
- “The court properly determined that Google’s use of Oracle’s software did not fit within any use listed in the preamble to Section 107 and was transformative in neither purpose nor content.
The court found that “taking only select passages of a copyrighted work is, by itself, not transformative” because “[t]he relevant question is whether Google altered ‘the expressive content or message of the original work’ that it copied — not whether it rewrote the portions it did not copy.””
- Journalism Professors’ Brief:
- “As the Federal Circuit stated: “where, as here, the copying is verbatim, for an identical function and purpose, and there are no changes to the expressive content or message, a mere change in format (e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use.”
If Google engaged in exact copying of the Java declaring code and SSO of the API packages, without altering their expressive content or message, and in order to use them in the android for the identical purpose they serve in Java, but used them in the different context of smartphones or tablets instead of desktops or laptops, this would appear to be a quintessential example of a change in form, the hallmark of a derivative work, rather than a fair use, which alters the original for a transformative purpose.”
- American Legislative Exchange Counsel’s Brief:
- “Economic gain need not be a motivation when copying a protected work. Rather, repeated and exploitative copying of copyrighted works, even if the copies are not offered for sale, may constitute a commercial use. Under these standards, Google copied Java for a commercial purpose.”