Google can let out a huge sigh of relief now that the Supreme Court has saved the tech giant from billions of dollars in damages in a long-running lawsuit by Oracle over the computer code used to build the Android operating system. Like movie studios banned, while a copyright dispute over computer code may not appear to be of particular consequence to them, an opinion from Judge Stephen Breyer concluding that Google made fair use of the material copyright protected will most likely be discussed for some time and will be relied on in other contexts. As such, a few lines in particular of today’s opinion regarding public benefit and public harm could have a lot in Hollywood quite tense about a future built on intellectual property.
First, some background information on what has been dubbed the “copyright case of the century” by some experts.
Oracle is the owner of Java, a popular programming platform used to build applications for messaging, browsing, news, and social media. This copyright fight has focused on the Java API, and more specifically on how Google engineers, while writing their own task implementers, copied certain reporting codes to from Java.
Google argued, ultimately with success, that there were good reasons it relied on pre-existing statements: These were the most familiar to programmers, and the copied code allowed engineers to organize themselves before moving on to details of the implementation code. need to learn an entirely new system for calling the same tasks.
Did the code statement fall under copyright protection?
Surprisingly, this is an issue that the High Court has largely bypassed today. The case was pre-hyped as the one that would determine the copyright of the computer code, but Breyer basically says: Let’s assume all of Java is protected by copyright; Did Google Fair Use?
A quick word about Breyer: he has long been the active Supreme Court judge who, at least in copyright terms, has been found to be most wary of the expansion of property rights. It is true that seven years ago Breyer gave broadcasters a welcome victory in the Plane Case; Nonetheless, he is considered a technologist, a reputation he gained in his days as a researcher. opposing term extensions to his thoughts in cases like Grokster. There, he suggested that file-sharing technologies could get a contributory pass under the same test (“capable of substantial uses without infringement”) once given to the Sony Betamax VCR.
In the majority opinion of Breyer, who notably attracted the votes of new judges like Gorsuch and Kavanaugh, he is aware that this case involves working computer code rather than something unmistakably creative like, for example, a movie, TV show or book. It is simply the “nature of the copyrighted work”, one of the four main factors governing the fair dealing analysis (and the factor which has traditionally been spared little by judges). Breyer reiterates a precedent that some works of originality and creativity are closer to the core of copyright than others and that “the statement of the code is, if it can be protected by law copyright, further than most computer programs (such as implementation code) from the core of copyright ”.
So far, no problem at least from Hollywood’s point of view.
But then potential industry issues arise in the section on the purpose and character of the potential use, in other words, whether Google’s use of Java has been transformative.
In an amicus brief to the High Court, the Motion Picture Association (minus, notably, Netflix) urged the High Court to conclude that Google (which has long been a nemesis) has made transformative use of Java. Legal scholars have written: “Unlike purely expressive works, software by definition has a functional component that makes it inherently different. Applying the concept of transformation to partially non-expressive works like software is like trying to put the proverbial square peg in a round hole: the transformation, which focuses on a new expression, a new meaning or a new message, supposes an effect on human thought or emotion; on the other hand, the software, in much of it operates independently of these human thoughts and emotions. “
Breyer concludes otherwise by buying Google’s argument that he has achieved something truly innovative.
“Here, Google’s use of the Sun Java API is aimed at creating new products,” he writes. “He seeks to expand the use and utility of Android-based smartphones. His new product provides programmers with a highly creative and innovative tool for a smartphone environment. As Google has used parts of the Sun API Java to create a new platform that could be easily used by programmers, its use was consistent with that creative “progress” which is the fundamental constitutional purpose of copyright itself. “
Breyer also notes that Google engineers did what they did in part for the sake of interoperability before finally shifting that fair use factor to Google.
Alone, even given the amicus mandate of the industry,this may not sound fire alarms. Instead, the lines Hollywood can find most baffling come from the section that measures the fair use factor of market effects. At an earlier stage in this case, the MPA drafted a separate friend of the court brief aimed at ensuring that it is not because a Hollywood studio (or copyright holder) did not exploited his job somewhere that he wouldn’t. t ultimately do it.
So what does Breyer write?
He recognizes that copyright infringement means potential loss for an owner, but adds that one must also consider the source of the loss as well as the public benefits that the copying is likely to produce. “Are these copyright benefits, for example, related to the creative production of a new expression?” He asks. “Are they comparatively large, or unimportant, in relation to the dollar amounts likely to be lost (also considering the nature of the source of the loss)?”
Breyer nods at how a jury might have concluded that Android didn’t hurt any market for Java and how there is good evidence that Oracle was unable to enter. the mobile phone market. Google looked for a license to use the Java code and didn’t get it, but that ultimately doesn’t matter.
Breyer writes and it will likely be cited for some time “to allow Oracle’s copyright enforcement here to harm the public.”
Explaining, he seems to add a test of public benefit and harm to the usual market analysis by writing: “Considering the costs and difficulties of producing alternative APIs with a similar appeal to programmers, authorize the application here would make Sun Java APIs declaring code a lock limit the future creativity of new programs. Oracle alone would hold the key. The result could well prove to be very profitable for Oracle (or other companies holding copyright in them. computer interfaces). But these benefits may well come from creative improvements, new applications and new uses developed by users who have learned to work with this interface. To this extent, the lock would interfere with, and not more, the basic creativity goals of copyright. “
In other words, copyright can become the enemy of progress resulting in an exclusive ability to control and block a developing market. This is something that the majority of Supreme Court justices find intolerable, and it is a significant development in the history of intellectual property enforcement. As Hollywood faces new derivatives of its ownership. intellectual, in all kinds of creative and technologically advanced ways, says Breyer. could become very important indeed. Although Breyer notes that the application of fair use will depend on the context and that “copyright protection may be stronger when the copyrighted material is fiction, and not fact, when ‘it is a film rather than a newscast, or when it serves an artistic work rather than a utilitarian function, “he makes no hard lines limiting the application of his analysis of the ‘fair dealing and also sees it as a “context-based check that can help keep a copyright monopoly within its legal limits.”
It is therefore not surprising that the minority opinion uses all this to criticize.
As Judge Clarence Thomas, joined by Judge Samuel Alito, wrote, “The concern of the majority about a foreclosure effect … is speculation belied by history. First, Oracle never had any locking power. The majority (still) overlook the fact that Apple and Microsoft created mobile operating systems without using Oracle’s reporting code. “
And putting it all together, including the section on how Google has made transformative use of code through new product creation, Thomas continues, “This new definition gutters copyright. A movie studio that convert book to movie without permission not only creates a new product (the movie), but allows others to “ create products ”, movie reviews, merchandise, YouTube videos, TV interviews late night, etc. Almost any computer program, once copied, can be used to create new products. the majority would not say that an author can hack the next version of Microsoft Word just because he can read it. ‘use to create new manuscripts. “
Here is the full opinion:
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