Intellectual Property

“Adpocalypse”

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Adam Fejes on Pexels.com

By: Carl Rustad

“Youtube Hate Preachers Share Screen With Household Names.” “Google’s Youtube has Continued Showing Brands’ Ads With Racist and Other Objectionable Videos.” These are the headlines Google faced in March 2017, as ads for Google’s advertising partners allegedly appeared alongside hateful or inappropriate Youtube videos. Within days, high-profile advertisers including Wal-mart, Pepsico, General Motors, AT&T, Dish, and Starbucks all pulled their ads from the platform. 

Google responded to these allegations by “implementing broader demonetization policies around videos that are perceived to be hateful or inflammatory” and “strengthen[ing] advertiser controls for video and display ads.” Using algorithms, Youtube “automatically weed[s] out inappropriate content,” sorting each uploaded video into categories purportedly reflecting their desirability to advertisers. Advertisers can exclude videos from categories like “tragedy and conflict,” “sensitive social issues,” “sexually suggestive content,” “sensational and shocking,” and “profanity and rough language.” Clearly these options reach far more content than the originally-complained-of hate speech. Videos determined inappropriate for advertisers are “demonetized,” meaning ads will not appear on them, they are deprioritized in search, and content creators will not receive any ad revenue from the video. The resulting drop in ad revenue is referred to as “Adpocalypse.”

As a result of these efforts, Youtube claimed “many advertisers have resumed their media campaigns on Youtube,” but also acknowledged that content creators faced “revenue fluctuations” due to demonetization and promised to provide “more detail around advertiser-friendly guidelines.”  Meanwhile, some content creators on the platform claimed to see an initial 80 percent drop in ad revenue due to demonetization, leveling off to a “40, 50, 60 percent drop” as videos were deemed not suitable for all advertisers. Prominent vlogger Vlogbrothers opined “[demonetization] has really squeezed creators who are making content that’s maybe good, but not, like, super-happy-family-fun-time stuff.”

Private Platforms Provide Strong Extralegal IP Protections

Adpocalypse demonstrates both the interest and the power that companies have in protecting their brands on private platforms. Brands are already entitled to certain legal protections. A trademark holder is protected against damaging associations in several scenarios, including when unauthorized use of their trademark causes confusion as to the source or sponsorship of a product, or tarnishes the brand by association with “unsavory” ideas. See AMF, Inc. v. Sleekcraft Boats; Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC. On the other hand, there is no trademark infringement when the trademark is being used to describe a product or talk about a competitor’s product. See KP Permanent Make-Up Inc. v. Lasting Impression I, Inc. These are considered “fair uses” of a trademark.

But the companies on Youtube, of course, do not have to point to their carefully balanced intellectual property rights in order to control their representation on the platform. They can simply refuse to advertise on a platform if it tends to associate their brand with any less-than-ideal content. This is not a new phenomenon. Media has long catered to advertisers, with media scholar C. Edwin Baker claiming “the greatest threat of censorship in this country comes not from the government, but from advertisers . . . .” As online platforms mediate a steadily increasing amount of our time, advertiser censorship may become correspondingly more pervasive and omnipresent. With algorithmic and computing advances, such censorship can be systematically extended to hosted individual speech as seen in Adpocalypse.  

Real Time Content Moderation: The Future of Advertising? 

Adpocalypse concerned advertisers’ association with undesirable uploaded videos, which are scanned for content and demonetized and search deprioritized if they are deemed unsuitable for advertisers. This hawkish breed of moderation is enabled by advances in automated decision making. Over 500 hours of content are uploaded to Youtube every minute; each video must be scanned and categorized as safe or unsafe for advertisers. 

Platforms are now facing pressure to provide real time moderation to prevent violations of their terms of service by censoring disinformation, incitations of violence, and other abuses. Facebook Horizons already includes real time moderation features  allowing it to instantly deplatform or censor abusive–as determined by Facebook alone–virtual reality users. The advantages of such a system are obvious. Hate speech, harassment, and other universally-condemned behavior can be taken offline before it happens. Unfortunately, the concerns real time moderation raises are just as obvious. 

Platforms will continue to compete for ad revenue. As Adpocalypse demonstrates, online platforms are not simply censoring hate speech; they are beginning to censor anything not “advertiser-friendly”. Allowing fine control over the spaces in which advertisers’ products appear, not just how their ads appear, is a profitable course of action. One easily foreseeable use of real time moderation is to limit the visibility of advertiser-unfriendly speech in VR chat. But there is no reason to believe the technology will be confined to such transparent and simplistic uses. Facebook already sells sophisticated and hyper-targeted ads. Plus, US advertisers are willing to pay about $250 billion a year to control what consumers associate with their products. The market is there.

Given the impending capability and incentives for online platforms to moderate speech and the environment of speech in real time, it is time to take a hard look at the role of advertisers in platform censorship. While the First Amendment does not apply to private platforms, consumers should demand transparency from platforms about how speech is moderated and hold them accountable when moderation technology is abused to accommodate advertisers. 

NFTs: Coming Soon to a Patent Portfolio Near You?

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by Sharefaith on Pexels.com

By: Hannah Avery

At this point the craze surrounding NFTs is far from breaking news. NFTs (“non-fungible tokens”) have been created for everything from the “Disaster Girl” meme to the world’s first tweet. They have been the subject of numerous articles, publications, and blogs, including this blog by the Washington Journal of Law, Technology, and the Arts’ Associate Editor-in-Chief Joanna Mirsch, discussing video game-related NFTs. Despite NFTs’ widespread popularity, early “NFT craze” trends seemed at odds with established American intellectual property rights, with many works being minted as NFTs without the consent of the original creator. At the very least, ownership of NFTs was widely regarded as independent of ownership of the underlying intellectual property rights. But… what if they weren’t?

While the sale of an NFT by itself does not automatically confer the underlying IP rights, the use of self-executing contracts in conjunction with the sale of an NFT can. This is the exact type of transaction that IBM was betting on when it teamed up with IPwe to create a platform for block-chain-enabled IP transactions. The IBM/IPwe platform transfers patent rights by building a smart contract with standardized terms into the token. The patent owner is able to set the terms of that contract, including what information is public and what is not. With this big bet on patent NFTs by IBM, the launch of IPwe’s secure licensing & selling capabilities, and the first sale of a patent and the related patent rights as an NFT in April 2021, many forward-looking patent-holders may be wondering whether they should convert their patent portfolios to NFTs.

Unsurprisingly, the press release for the IBM-IPwe partnership touts a number of benefits of blockchain-based IP transactions including increased transparency, reduced transaction costs, and greatly improved capacity for patent-holders to manage, value, and transfer their IP assets. Additionally, blockchain-based patent transactions could help to prevent future SEP licensing disputes and/or to simplify their resolution. However, there are also a number of potential risks which could dissuade those who would otherwise be early-adopters.

Increased transparency of ownership

Since the introduction of blockchain technology, one of its most praised features has been the unique ability to create an indisputable record of a series of transactions. As applied to patent rights, this feature would allow users to track the ownership of patent NFTs and the transactions associated with patent license NFTs. This tracking mechanism would provide clarity of ownership of the patent rights. According to IPwe’s Chief IP Officer Cheryl Milone Cowles, “distributed network verification . . . provides the confidence of transacting with a clear current title and history.” While such assurance is undoubtedly appealing to potential investors, it may be too good to be true… at least for now. Given the nature of this technology and the current case law governing patent ownership disputes, situations could arise where a legal approach or remedy would be unclear. Some experts have raised concerns including: whether an owner of a patent whose NFT was stolen through a ransomware attack would be able to reestablish ownership through the legal system; whether a court would recognize transfer of a patent via NFT absent a more standard, written assignment; and, if courts do prove willing to recognize such an assignment via an NFT sale, what evidence will be considered sufficient to demonstrate ownership. Such uncertainties could easily lead to unfavorable, or simply unsatisfying,  outcomes for purchasers.

Cost-reduction

Historically, the costs of obtaining, maintaining, and licensing IP have been high. Therefore, the promise of a platform that could lower those costs, as IPwe claims, would be welcome news to many players in the IP space. While the technology behind the platform may be complicated, the theory of potential cost-savings is simple — the smart contracts included in token sales, as discussed above, would replace the current process of IP sales and licensing that is laden with attorneys fees, paperwork, and onerous contract negotiations. Such savings would be embraced by any organization accustomed to shouldering the burden, but it has the potential to be game-changing for small and medium-sized companies who may have previously been reluctant to engage in IP-related transactions because of current prohibitive costs.

Portfolio management

While tokenizing IP assets may interfere with a company’s existing portfolio management strategies, such disruption of existing strategies could also reap rewards for the first movers in this space. For example, the potential for easy resale of an IP asset could increase the value of that asset at the time of the initial sale. Or, standard essential patent holders could also utilize smart contracts to avoid expensive litigation while capturing licensing fees with each sale or resale. The possibilities are endless.

* * *

All in all, tokenizing patent assets may reduce the costs associated with patent licensing and streamline portfolio reporting. However, early adopters of this approach will have to navigate uncertain legal areas regarding the ownership of their tokenized IP rights. In our information-based economy, adopters could be risking some of their most valuable assets in their effort to become an industry leader. Is it worth the risk?

So You Want to Invalidate a Patent? The PTAB May Be Your Friend!

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by EKATERINA BOLOVTSOVA on Pexels.com

By: Mark Stepanyuk

Challenging the validity of a patent versus patent infringement

If you have a patent and you think somebody is infringing on that patent, you may be able to sue them for patent infringement. Alternatively, if you think somebody has an inadequate patent, you can prospectively challenge its validity. Although historically these two causes of action have largely overlapped, they are very much distinct. This blog post is about the rise of a relatively new mechanism for challenging patent validity in the United States.

What is the PTAB?

The Patent Trial and Appeal Board (PTAB) was formed in 2012 as part of the Leahy-Smith America Invents Act (probably most known for changing the U.S. Patent system from “first-to-invent” to “first-to-file.”) The PTAB replaced the Board of Patent Appeals and Interferences at the U.S. Patent and Trademark Office (USPTO). In general, PTAB handles appeals and conducts trials. Appeals proceedings mostly involve cases where applicants wish to review the examiner’s decisions regarding their patents or claims (such as rejections). 

PTAB trials, on the other hand, are where the magic happens in challenging patent validity. The PTAB’s trial division handles proceedings such as Inter-Partes Reviews (IPR) and Post Grant Reviews. They also used to handle Covered Business Method reviews, which was historically the second most popular proceeding, but that program sunsetted and ended in September 2020. The vast majority of trial petitions filed at the PTAB are IPR’s (which accounted for about 93% of PTAB trial proceedings in 2021.) 

How do you actually challenge patent validity?

If you’re a business competing with someone who holds a patent that you think is inadequate or you are worried that what you are doing may infringe on their patent, you can attempt to invalidate their patent(s) or claim(s). Generally speaking, this can be done by bringing a case either to Federal District Court or to the PTAB (also in some circumstances, you can go to the Court of Federal Claims or the International Trade Commission.) Sometimes parties also choose to bring their case to multiple courts, although there are notable limits. Each choice has its own set of requirements, costs, and benefits. For instance, filing in Federal District Court requires a “case or controversy.” At the PTAB, there is no such requirement. However, there is a petition phase and a trial phase. Not all petitions become instituted and make it to the trial phase, though parties may file multiple petitions (there are differences between institution rates by “petition” and “patent.”) Also notably, the USPTO has been cracking down on “serial petitioners” (i.e., parties filing multiple petitions targeting the same patent.) 

Why have PTAB trials gained traction as a tool to challenge patent validity?

In the last decade, initiating PTAB trials has become a viable strategy for some businesses seeking to invalidate or weaken the patent portfolios of their competitors. There are many reasons for this. First, the average cost of filing and prosecuting a PTAB trial proceeding (IPR) is averaging far less than doing so in Federal District Court. If the expected value of initiating an IPR proceeding exceeds its cost, the firm is more likely to undertake the proceeding. Second, it’s easier to invalidate a patent at the PTAB than in Federal District Court. The presumption that a patent is valid does not exist in the PTAB and challengers only need to show by a “preponderance of the evidence” that claims are unpatentable to invalidate. Whereas in Federal District Court, challengers need to overcome the much higher standard of “clear and convincing evidence” to invalidate the patent, due to the jurisdictional presumption that the patent is valid. Third, there has been broader claim construction at the PTAB which has led to increased invalidation under Section 103 (non-obviousness) because it allowed for more prior art to be considered – although now the PTAB uses the Phillips standard for claim construction (the same as in Federal District Courts.) Fourth, standing is not required to initiate a PTAB trial proceeding. In the case of IPRs, any third party that has not already filed and has not been served with a complaint alleging patent infringement more than one year prior may initiate the proceeding. Most other PTAB trial rules and standards can be found here. For these reasons and likely others, it’s become a relatively more popular tool in handling patent disputes for patentees and non-patent holders alike. 

The PTAB has been controversial since its inception as part of the AIA in 2012

The constitutionality of the PTAB has been challenged on multiple occasions and in each case it has been upheld. In Oil States Energy Services, the Supreme Court held that Congress has significant latitude to assign adjudication of public rights to entities other than Article III Courts (i.e., the PTAB). The closest constitutional challenge to the PTAB was probably in United States v. Arthrex. In that case, the Supreme Court held that the PTAB’s structure was unconstitutional (by violating the Appointments Clause in which Administrative Patent Judges were not appointed “principal officers”), but this was easily remedied by having the Director review final decisions at the PTAB. Other controversy stems from disparate economic consequences of PTAB trials. Many inventors that are patent-holders are not fans of this emergent mechanism to challenge patent invalidity. These inventors complain that the PTAB has turned into a predatory regime with a bias against unsophisticated patentees. Ultimately, they argue that PTAB trials have become an anti-competitive tool for large companies to bully or threaten start-ups. One inventor argues that in part due to repeatedly filed petitions, patents that have been subject to a PTAB final written decision have an 84% invalidation rate.

The goal of patent law and the way forward

The administrative tradeoff between expeditiousness and thoroughness in the U.S. patent law system has been evident from the time of the “Commissioners for the Promotion of Useful Arts.” In an early letter, Thomas Jefferson wrote, “[of the law of granting and refusing patents] I saw with what slow progress a system of general rules could be matured.” Indeed, the America Invents Act was yet another iteration aiming at maturity. Congress’s goals for the PTAB part of the America Invents Act was: to create a faster and less costly alternative to Article III court-based patent litigation; to sweep away low hanging fruit (weed out patents that probably should not have been issued in the first place); and to lighten the dockets of federal district courts, which have been overwhelmed with Non-Practicing Entity (i.e., “patent troll”) suits. To a significant extent, many of these goals were achieved, and pretty much any bright-line rule is bound to discriminate against edge cases. This is why we have general rules and specific rules, and specific rules are more easily changeable. 

As the specific rules within the PTAB will continue to evolve, many disagree about the direction and pace of change. Here’s a paper that argues for more specific reforms likely to be addressed within the USPTO. The authors argue that the current benefits of PTAB proceedings do not necessarily outweigh its costs and point out inefficiencies. They call for more changes to deal with “uncertain estoppel litigation rules” (i.e., serial IPR petitioners, and other costs associated with doubling-up.) Other arguments call for more drastic reform such as repealing the PTAB. 

Since its inception in the United States in 2012, the PTAB has risen in popularity as a tool to challenge the validity of patents. Despite parties being able to challenge patent validity in other forums, the PTAB’s advantages have made it an economically viable candidate for many patentees and non-patent holders alike. Although it has been the subject of controversy, the PTAB and the U.S. patent law system more generally will continue to mature and be shaped by American jurisprudence. As for now, exposure to the filter of the PTAB will continue to be part of the patent bargain between an inventor and society.

An Infinity War: Will the Latest Marvel Lawsuits Finally Declare a Winner in the Battle of Copyright Termination Tests?

/ Washington Journal of Law, Technology & Arts / Leave a comment

By Gracie Loesser

The Marvel Cinematic Universe is the highest-grossing franchise of all time, with a total worldwide gross profit of over $22 billion, and the demand for superhero content shows no signs of stopping.

So, it should not be a surprise that the original creators of characters like Iron Man, Spider-Man, and Dr. Strange are hoping to share in the success. Just this year, five former Marvel artists and their heirs have issued copyright termination notices, asserting their right to share in the Marvel Universe profits. In response, Disney-owned Marvel has sued, effectively asking the court to dismiss the creators’ ownership rights.

Whether the original Marvel artists will prevail depends on whether the creations are considered “works made for hire” under the federal Copyright Act. But how that will be determined is surprisingly unclear.

In 1976, Congress amended the Copyright Act addressing concerns that artists were losing valuable ownership rights through coercive agreements. The new Act incorporated a termination provision, which gave artists the right to reclaim any copyright interest they previously transferred regardless of any preexisting contract. Notably, the termination provision excluded any “work[s] made for hire,” with the rationale that an employer is considered the author and original copyright holder of any work made by an employee within the scope of their job. The issue is the law does not provide a definition of an “employer” and a “work made for hire” within the scope of the Act.

Courts have since stepped in to fill this gap. The Second Circuit developed the “instance and expense” test, which states that a work is made for hire “when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out.” Under this inquiry, an independent contractor would be considered the author and original copyright holder of her work. However, the independent contractor could impliedly transfer her rights to the hiring party if certain conditions were met. The Second Circuit’s test proved popular, with the Fourth and Seventh Circuits adopting the approach.

This approach soon faced an existential challenge. In 1989, the Supreme Court attacked the appropriateness of the “instance and expense” test in CCNV v. Reid. The Court held that the Second Circuit’s analysis was not “consistent with the text of the Act,” stating the structure of Copyright Act § 101 necessitated two separate analyses: one for employees and one for independent contractors. This finding directly challenged the Second Circuit’s single test based on project control. To determine whether an artist should be classified as an employee or an independent contractor, the Supreme Court identified thirteen non-exhaustive factors rooted in the common law of agency to guide the analysis.

Although the Supreme Court’s ruling appeared to rebuke the “instance and expense” analysis, the Second Circuit continued to apply the test in the years following the Reid decision. In Marvel Characters, Inc. v. Kirby, the Second Circuit was asked to review the district court’s grant of summary judgment in favor of Marvel. The lower court had applied the “instance and expense” test and determined that former Marvel artist Jack Kirby’s drawings were works made for hire, thus invalidating the termination notices issued by his heirs. Upon review, the Second Circuit affirmed the district court’s use of the “instance and expense” test, acknowledging and simultaneously dismissing the Supreme Court’s criticism in a brief footnote. Kirby appealed the decision hoping that the Supreme Court would grant certiorari to once and for all dismiss the “instance and expense” test. Kirby’s cause was given further support when the former director of the U.S. Patent and Trademark Office, Bruce Lehman, filed a brief urging the Court to use this opportunity to reject the “instance and expense” analysis as improper. Unfortunately, Marvel settled the case, just as it looked like the Kirby campaign might succeed in convincing the Supreme Court to grant certiorari.

Since the ruling in Kirby, the Second Circuit’s rulings have only added to the confusion. In Horror Inc v. Miller, the court was again asked to analyze the validity of an author’s copyright termination. In that case, writer Victor Miller contended he was an independent contractor under the Copyright Act when he created the original Friday the 13th screenplay, making his termination notice enforceable. Surprisingly, the Second Circuit agreed, relying on the Supreme Court’s thirteen Reid factors in determining that Miller’s screenplay was not a work made for hire. Despite this major shift from the Circuit’s previous defense of their “instance and expense” approach, the court did not acknowledge the change or explain their reasoning.

Now, the Second Circuit is faced with five potential Marvel copyright termination cases, all of which closely resemble the facts in Kirby. Assuming the Second Circuit continues to apply the Reid analysis as it did in Miller, the outcome will likely be in the artists’ favor.

However, that assumes the Circuit maintains this approach. Based on the content of at least one complaint, Marvel’s counsel may try to convince the court to reverse course. The filed claims against the company’s former artists notably include separate considerations of “instance” and “expense.” Given the Circuit’s inconsistent rulings in the last decade, the outcome of these latest cases is less than certain, making this an important opportunity for the court to clarify its stance. Nevertheless, even if the Second Circuit decides to abandon the “instance and expense” test, whether the Fourth and Seventh Circuits will make similar changes to their analysis remains to be seen.

Is Code Killing Copyright?

/ Washington Journal of Law, Technology & Arts / Leave a comment

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.