UPDATE, April 6, 8:29 AM: The Copyright Alliance, which represents content companies and creators, warned that the Supreme Court’s decision in favor of Google “has the potential” to broaden the fair use doctrine, something that would open the door to greater unauthorized use of copyrighted material.
CEO Keith Kupferschmid said in a statement that “while we believe that the Supreme Court decision was wrongly decided, we are heartened that the court made very clear that its decision is not only limited to software—and thus, should not be applicable to other types of copyrighted works—but it’s also limited specifically to declaring code and not to other forms of software. As such, the decision here should have very limited applicability to other fair use cases that may arise in the future.
PREVIOUSLY: The Supreme Court ruled that Google’s use of 11,500 lines of code from Oracle software programming language was a “fair use,” a decision that may have implications for how copyrighted material is used without permission as a “fair use” in the future.
The 6-2 decision (read it here) was closely watched by entertainment industry legal teams, as the Motion Picture Association had warned that Google’s interpretation of the law “would threaten the legitimate rights of copyright owners, to the ultimate detriment of the public.” They warned that a broader interpretation of fair use could allow for unauthorized knockoffs of popular TV shows and movies.
In the majority opinion, Justice Stephen Breyer wrote that Google’s use of the Sun Java API code was transformational, a basic ingredient of whether portions of copyrighted material can be used without permission as a “fair use.”
“Here Google’s use of the Sun Java API seeks to create new products. It seeks to expand the use and usefulness of Android-based smartphones,” Breyer wrote. “Its new product offers programmers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.”
Just what is “fair use”? For the courts, it’s largely been a matter of evaluating unauthorized uses on a case by case basis. The Copyright Act applies four factors in evaluating “fair use:” the purpose and character of the use, the nature of the copyrighted work, the amount of the material used compared to the whole work, and the effect that the use has on the market value of the copyrighted material.
Google’s case was different from other copyright cases in that it involved the use of Oracle code so that programmers could use it to work with its Android platform. Breyer wrote that Google “reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”
In an amicus brief filed with the court last year, the Motion Picture Association said that “if Google’s distorted approach to transformation were applied to traditional expressive works like motion pictures and given undue weight at the expense of the other salient factors, copyright law and the fair use defense would careen off the tracks.”
“If Google’s unprecedented approach to transformation were to become the law, a producer who makes an unauthorized feature film of the hit TV series Game of Thrones (HBO 2011) could claim that the use was new, innovative, and socially valuable, and therefore a transformative fair use—a preposterous legal position.”
But Breyer also tempered the decision with a suggestion that it does not change how courts have considered whether the unauthorized use of copyrighted material is a “fair use,” something that has protected everything from satirists on The Daily Show in their use of news clips to book reviewers quoting from passages of a work.
Breyer wrote that it does “not overturn or modify our earlier cases involving fair use—cases, for example, that involve ‘knockoff’ products, journalistic writings, and parodies. Rather, we here recognize that application of a copyright doctrine such as fair use has long proved a cooperative effort of Legislatures and courts, and that Congress, in our view, intended that it so continue.”
In a dissent, Justice Clarence Thomas, joined by Justice Samuel Alito, wrote, “The Court reaches this unlikely result in large part because it bypasses the antecedent question clearly before us: Is the software code at issue here protected by the Copyright Act? The majority purports to assume, without deciding, that the code is protected. But its fair-use analysis is wholly inconsistent with the substantial protection Congress gave to computer code. By skipping over the copyrightability question, the majority disregards half the relevant statutory text and distorts its fair-use analysis. Properly considering that statutory text, Oracle’s code at issue here is copyrightable, and Google’s use of that copyrighted code was anything but fair.”
In a statement, a spokesperson for the MPA said, “The Supreme Court made clear that it didn’t intend for today’s ruling to affect existing law as applied outside the context of computer software.”