Is Code Killing Copyright?

By: Katherine Czubakowski

Early last month, the Supreme Court released its long-awaited decision in Google LLC v. Oracle America Inc.  The Court found that Google’s unauthorized copying of 11,500 lines of code from Oracle’s Java SE API was fair use because Google took only as much code as it needed to create a new and transformative program. While some argue that this outcome protects fundamental aspects of how code is created and the technology industry, others see this decision as a significant blow to copyright protections. This disagreement comes down to a fundamental question the Supreme Court seems to have side-stepped in this case: whether code should be protected under copyright at all.

An API, or Application Programming Interface, is a list of actions one can take regarding specific software and how one would take those actions. For example, if gardening were a software, you could choose the action you want to perform (dig, e.g.) and how you want to perform that action (with a shovel, a hoe, a pickaxe, your hands, etc.). The Java API in question contains a basic list of common actions (sorting a list, for example) and how those actions are accomplished (alphabetically, numerically, etc.). When Google began developing the Android software used in their smartphones, they wrote their own code to tell the program what to do and how to do it, but copied the declaring code—the part of the program which matches the name assigned to each task with the program necessary to perform the task—from 37 of Java’s listed tasks. By doing so, the programmers working on the Android software were able to continue using the commands with which they were familiar, such as PrintLn() (which tells the program to print the specified text on the user’s screen) and LocalDate.now() (which tells the computer to display the user’s current date and time), in their own code, but these commands relied on Google’s newly written code to perform the task.

In determining that Google was legally allowed to copy this code, the Court relied on the doctrine of fair use.  Although copyright owners generally hold exclusive rights to create derivative works, which are new works based on their own pre-existing work, fair use is a legal exemption which allows someone to use copyright protected work without the author’s permission in certain circumstances. Courts consider fair use on a case-by-case basis and analyze four different aspects of the otherwise-infringing use: its purpose and character, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for the copyrighted work.  In its recent cases regarding fair use, the Court has created a sub-factor that it considers under the purpose and character of the use: transformativeness. A work is considered transformative when it uses the original copyrighted work in an unexpected way or in a way which alters the original meaning or message.  Transformativeness weighs strongly in favor of fair use because it encourages creativity and furthering of the arts.  This sub-factor frequently affects all four factors in the fair use analysis and can sometimes even outweigh the importance of the other three factors. It can often be difficult to tell if a work used in a transformative way is a derivative work or if it falls under the fair use exception.

In Google LLC v. Oracle America Inc. the Court’s decision hinged on its finding that Google’s use was transformative. The Court first analyzed the nature of the work and found that APIs were fundamentally different than other types of code. Because the declaring code fuses together the uncopyrightable idea of how the code is organized with the copyrightable code which tells the computer how to perform a function, the Court saw the copied code as valuable only as a result of the programmer’s investment in learning it. Since the copied code did not hold independent value, the Court felt that applying fair use in this circumstance would not undermine general copyright protection for other programs. The Court then turned to the purpose and character of the use, which is where they discussed the work’s transformative nature. It found that Google’s purpose in using the copied code was “to create a different task-related system for a different computing environment” than the creators of Java had originally intended.  Google’s use of the code was part of the “creative progress” which the Court saw as copyright law’s objective, so they found that the use was transformative. The Court further found that, although Google copied “virtually all of the declaring code needed to call up hundreds of different tasks,” they copied a relatively small amount of the total API in question. Because this relatively small portion of the API was tied to a valid and transformative purpose, the Court felt that the third factor weighed in favor of fair use as well. Finally, the Court found that Android was not a market substitute for Java SE because the two products were substantially different. Weighing all these factors together, the Court found that because they only took as much as was necessary to allow their programmers to use “accrued talents to work in a new and transformative program,” Google’s “reimplementation of a user interface” was protected by the fair use doctrine.

The Court’s analysis and reliance on transformation in this case presents a danger to those seeking to copyright their code. This is because code is fundamentally different than many other works protected by copyright; it combines functionality with creative expression. Unlike traditionally copyrightable works, programs are usually created in a way which relies on previously created code to function. When writing new code, very few programmers actually write code which can interact directly with the computer. Instead, they use one of a number of programs which translate a more readable code, such as Java, into code which the computer can understand. Without being able to copy some fundamental aspects of the language, programmers would have to create a new language anytime they wanted to write new code. In practice, this means that many different programs with different purposes all rely on the same underlying program(s) to translate their code into a form the computer can understand. 

Although the Court likely reached the correct outcome in this case, the repercussions of its decision in other fields damages traditional copyright holder’s rights. The Court’s transformative analysis fails when applied in the context of programming because a program’s reliance on other code is a necessary aspect of its creation. Thousands of substantially different programs rely on the same underlying code in order to function. However, purely creative expression does not have this same reliance on preexisting works—as evidenced by Congress’s grant of derivative works rights to copyright holders. By trying to fit both pure creative expression and functional creative expression under the same body of law, the Court has blurred the lines between what is transformative and what is derivative and has put at risk the exclusive rights guaranteed to copyright owners of traditionally copyrightable works.

YouTube’s Content ID Policy Change Now Saves Lost Monetization for Fair Use Videos

youtube-cashBy Dan Goodman

As the late Notorious B.I.G. said, “Mo Money, Mo Problems.” Whether you believe that statement or not, it is certainly, and thankfully, becoming less true the world of monetizing videos on YouTube through fair use.

The issue of fair use in regard to Content ID claims and Digital Millennial Copyright Act (“DMCA”) takedown notices continues to be a hot topic in the world of YouTube. Most recently demonstrated in Lenz v. Universal Music Corp., the Ninth Circuit held that copyright holders must consider fair use and have a subjective belief that the material in use was in violation of copyright law before sending a takedown notice.

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Screenshot Through The Heart, And Richard Prince’s To Blame

Rasta.jpgBy Gwen Wei

Earlier this year, three artists separately sued appropriation careerist Richard Prince for copyright infringement. The works in question? Photographs with valid and registered copyrights—each framed in an Instagram screenshot by Prince.

Sound familiar? The incidents seem to be an ugly throwback to 2015, when Prince took screenshots of multiple photographs from the Instagram account of pin-up brand Suicide Girls, printed them, and sold each print for $90,000. But none of this is new ground for Prince. Such incidents define his forty-year career: rephotographing the photos of others, reprinting J. D. Salinger’s The Catcher in the Rye with his own name substituted for the author’s, or writing out lines out of joke books for display at art galleries.

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Fair Use: YouTubers Claim Copyright Infringement Lawsuit Against Them is a Goof

KleinsBy Jeff Bess

YouTube has come a long way in the decade since its founding as the Internet’s hub for one-off viral clips and cat videos. As of last month, YouTube reported that it reaches more viewers in the coveted 18-49 age group during primetime than the top ten TV shows combined. This is due in large part to the vibrant community of original content creators – some of whom individually drive enough traffic to make themselves millionaires – that host and share their videos on YouTube’s platform.

YouTube’s explosive growth as commercial and expressive medium has naturally brought with it a greater likelihood of legal disputes, particularly with respect to copyrights. Take for instance popular YouTubers Ethan and Hila Klein, the couple behind the comedy channel H3H3 Productions. They have built a following of nearly two million subscribers by making videos commenting on and making fun of other YouTubers’ videos. Continue reading

Can the Creator of an Unauthorized “Fair Use” Work Claim Copyright Protection?

ObamaaaaaBy Chike Eze

The Copyright Act balances granting exclusive rights to copyright owners on the one hand, and limiting those rights through several exceptions, including “fair use,” on the other. A creator of an unauthorized derivative work may escape a copyright infringement claim by successfully asserting a defense of “fair use.” However, the question is whether the creator may also claim copyright protection for the unauthorized derivative work.

The Second Circuit Court of Appeals answered this question in the affirmative. In Keeling v. Hars, the Second Circuit Court interpreted Section 103 of the Copyright Act to determine whether an unauthorized work, within the bounds of fair use, may itself be protected by copyright. The Keeling court held that copyright law provides that an unauthorized but lawful “fair use work may itself merit copyright protection.”

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