Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

ALI Restatement of Copyright – A Conversation with Professors Balganesh and Menell

Episode Contents

  • 58:12 – Overview of the American Law Institute and Restatements of Law
  • 06:13 – Restatements have never addressed areas of primarily statutory law.
  • 08:53 – Development of the 1976 Copyright Act
  • 15:17 – “Why we are not opposed to the idea of a Restatement.”
  • 25:09 – Criticism of the project’s lack of transparency.
  • 31:28 – Criticism of the project’s methodologies.
  • 42:44 – The distribution right & shifting judicial philosophies.
  • 51:50 – Rewriting copyright law without the legislature.
  • 54:17 – Can the Restatement still have a good outcome?
  • 01:01:43 – “the worst sausage factory”
  • 01:05:24 – Hypocrisy of the Reporters

Show Description

In 2015, the American Law Institute announced that it would embark on a Restatement of Law for U.S. Copyright. The plan raised eyebrows in the copyright community, the broader legal community, at the Copyright Office, and in Congress. For one thing, the ALI, which was founded in 1923, has never written a Restatement for any area of primarily statutory law—and the current copyright law is a rather complex federal statute. For some discussion about the Restatement project and the broader criticisms, see the post I wrote in 2018.

In this podcast, we get an insider’s view from two legal scholars who serve as Advisors to the Restatement of Copyright project. Although they joined the process with a measure of optimism that a Restatement could address certain complexities in copyright practice, the pair have since become critical of the project with regard to both its methodologies and its lack of transparency. Professors Shaymkrishna Balganesh of Columbia Law School and Peter Menell of the Berkeley School of Law published a detailed account of their analysis in a 77-page paper entitled Restatements of Statutory Law: The Curious Case of the Restatement of Copyright, forthcoming in a special issue of the Columbia Journal of Law & the Arts. Professors Balganesh and Menell discussed their concerns with me about the project–concerns that extend beyond copyright law.

Google v. Oracle XIII:  SCOTUS Should Be Skeptical of the “Sky Will Fall” Argument

I realize the Court will rule anytime now, and that I may be gilding the proverbial lily here; but I drafted this post in early January, and then the world got a little crazy and distracting. Anyway, FWIW, below is my last observation about Google v. Oracle. At least until after the decision. 🙂

In Google v. Oracle, the Supreme Court will render opinions on two legal arguments, either of which could have profound effects for different interests. The Court’s opinion on the copyrightability of Oracle’s “declaring code” will, in one way or another, be felt throughout the software industry, while the Court’s opinion on fair use will affect the entire ecosystem of creators in every category of copyrighted works.

As discussed in other posts, the Supreme Court should reject Google’s attempt to hyperextend the purpose and character of fair use, and in doing so, it should unanimously decline to transform modern copyright doctrine from the bench. In earlier posts, I discussed why Google’s claim that the code at issue should not be held uncopyrightable under the “merger doctrine” (§102(b)), which would have to affirm that the code at issue is a method rather than a form of expression. Nevertheless, the Court may feel hesitant to “upend the software industry,” if it is persuaded that finding copyrightability in Oracle’s code might have this result.

The most compelling argument in this regard is presented in the amicus brief filed by eighty-three computer scientists, which includes some of the most renowned names in software development over the last half century. It is hardly sensible for most of us—and certainly not for me—to debate that industry’s conduct with the likes of Steve Wozniack et al. If these experts say that “reimplementation” of software interfaces (APIs) is standard practice that the software industry has relied upon for decades, that statement must be given both deference and weight.

At the same time, we must keep in mind that “reimplementation” is not barred by copyright—that in fact much of the “open source” copying in that industry is bound by various conditions, which are defined by licensing agreements that are only enforceable under copyright law. In that regard, Java is a classic example of code that offers different tiers of licensing where, for instance, the educator may access all of Java for free, while the commercial user is subject to fees and other conditions. There is nothing remarkable or inherently stifling about these distinctions.

More specifically, as a question of law, even if we accept the computer scientists’ broad description of industry-wide reimplementation as fact, it tells us nothing about whether there is sufficient creativity in Oracle’s declaring code to qualify for copyright protection. In reviewing the various briefs filed by experts on both sides of this case, it seems clear that some declaring code is quite simple, and some is very complex—and creativity, presumably, expands with complexity. Further, there does not appear to be much if any quarrel with the premise that declaring code can be highly creative—easily creative enough for copyright to attach—and if that is correct, that should be the ballgame as a legal matter, regardless of industry practice and expectations. And Google has conceded that Oracle’s declaring code is creative.

This does not mean, however, that the Court will be wholly unsympathetic to the “standard practice” argument, or eager to disturb an entire industry if they believe this could be a consequence of its decision. So, let’s consider the argument a bit further, assuming the computer scientist amici are absolutely right on key facts, but perhaps a shade over-saturated in coloring their picture of the broader landscape relative to Google v. Oracle. For instance, I would pay attention to language in the brief that makes statements like, “Android is the most popular [mobile OS] in the world,” which is presented more than once in defense of Google’s reimplementation of the Java APIs to ultimately “transform” the mobile market.

That sentence caught my attention because the word popular implies consumer choice, which is in fact very limited in the mobile market. If the consumer is a dedicated Apple user, those phones are quite expensive. Alternatively, if the consumer needs a more affordable mobile device, she can choose among different phones that are nearly all running on one OS called Android.* And Android was not made freely and widely available as a gesture of Google’s largesse, or for the purpose of fostering competition of any kind.

While Google seeks to frame its free mobile OS as both generous and revolutionary, consumers have largely come to understand the digital-age axiom that if you’re not the customer, you’re the product. Google no more gives away Android “for free” than it does any of its other platforms. Consumers and various government agencies investigating antitrust practices fully recognize that the price of “free” has been to allow companies like Google to accumulate and manipulate data that is then used to alter consumer behavior, stifle small business in various markets, generate advertising revenue from the exploitation of often-questionable content, and, above all, to solidify their own market dominance.

This is not to say that if Google had licensed the Java code at issue, it would not still be the leading supplier in the mobile market—but that’s part of my point. The reason I homed in on this fallacy of Android’s “popularity” is that it informs a response to the claim in the computer scientists’ brief, which argues that “Uncopyrightable software interfaces address network effect barriers by enabling startups to plug into existing systems and innovate through cumulative improvements.” [Emphasis added]

While that sounds plausible as a generalization, in this particular case, the Court should be mindful that the forces buttressing Android’s market position—especially the network effects—render Google nearly immune to competition from startups. And these forces have little to do with copyright one way or another.

Android is a poor context in which to discuss “addressing network effect barriers.” Google’s market-share and wealth makes the company the very definition of a “network effect barrier.” As such, it seems equally possible that copyright (i.e. a mandate to license the code) is the only protection that a prospective startup has while attempting to thrive in a market presently conquered by the Googles, Amazons, and Facebooks. So, while a startup may get off the ground by copying some aspects of an already-dominant platform, the weakness Google now asks the Court write into copyright law would allow Google to turn around and copy the innovative aspects created by the startup, thereby crowding the startup out of business.

So, when the computer scientists’ brief describes competition in the market, it seems that it is often alluding to intramural competition on a technological playing field owned by one or a few prevailing companies. For instance, there may be competition among developers writing apps for the Android platform, but there is no startup, at least not in the American market, that can feasibly challenge Android for a piece of its share in mobile. And if such a startup were to emerge, it seems farfetched to allege that licensing declaring code, for instance, would be the barrier to stifle that prospective venture. Instead, it seems more likely that the barriers to that potential competitor are much more potent market forces that have little to do with copyright law in general, and nothing to do with the copyright questions presented in this case.

Are the Generalizations Instructive?

Quite possibly, the most intriguing segment of the computer scientists’ brief is where it describes how many developers, including Sun Microsystems itself in the development of Java, have reimplemented software interfaces in the process of bringing their products to market. This section presents a very clear portrait of standard industry practice, but it also reprises those two bugaboo questions I’ve asked before: 1) If unlicensed reimplementation has been so standard for so long, why did other commercial developers license Java declaring code for various purposes?; and 2) Why did Google itself almost enter into a license with Oracle that it only declined due to interoperability conditions with which it did not wish to comply?

Looking at this narrative as an outsider and giving all parties in the computer expert world their due respect, it is hard not to feel that, amid the generalizations about industry practice and innovation, some details are missing that are intrinsic to this case. Either declaring code is never the subject of copyright OR it is always the subject of copyright, OR some declaring code is properly protected while other declaring code is properly not protected. This latter conclusion would depend upon the amount of originality in the work, just like every other copyright category. And again, there seems to be consensus among all software experts that some declaring code can be highly creative, or as Deputy Solicitor General Malcolm Stewart described at oral arguments:

 …the briefs talk about the practice of copying interfaces or APIs, but those terms are very vague and potentially expansive. And a lot of things that might be called interfaces would be segments of code that are so short that they don’t exhibit necessary creativity, segments of code that are necessary to preserve interoperability. It may be that in particular circumstances, particular interfaces can be copied without authorization, but that’s not a basis for a general rule.

In other words, broad statements about industry practice, no matter how many names sign an amicus brief, can obfuscate the salient details in this case, as well as countless other scenarios in the software universe where reimplementation is ably supported by licensing agreements. This begs one of the real questions at issue, which is who benefits most from the bright-line rule the Court is being asked to make on the copyrightability of computer code—the independent software developer or the entrenched giant? While Google’s computer industry amici ask the Court to imagine how StartupXYZ benefits from copying GiantXYZ’s code, it also asks the Court to ignore the inverse scenario when GiantXYZ copies StartupXYZ’s code. It is easy to forget this when neither party in this lawsuit is a startup, but it is a question that should not be lost in a river of generalities.

Computer Scientist Brief Says Fair Use is Not Enough

Interestingly, the computer scientists’ brief asserts that a finding of fair use for Google would be of insufficient value to the software industry overall because this “would create uncertainty” in the trade. Naturally, a holding that declaring code is simply never protected is far more certain than a narrow finding of fair use in this one case, which would not preempt future litigation over copying the same kind of code. Thus, the computer scientists’ brief confirms that a finding of fair use would only help Google while asserting it would do little for the industry as a whole.

That’s just as well since finding fair use in Google v. Oracle would, I believe, be an error of law that would be holistically detrimental to creators in all industries. The fact that the defendant in this case happens to be directly responsible for evangelizing an extremely broad fair use doctrine, while reaping the financial benefits of widespread online infringement (e.g. on YouTube), is at least an aggravating factor, if not a dispositive one.

Returning to the questionable proposition that “uncopyrightable APIs” necessarily spawn competition and innovation, it is very hard to ignore the background narrative in which mass copyright infringement has been integral to Google’s acquisition of market share in various lines of business, thus producing the mother of all “network effects” such that parent company Alphabet—along with Facebook, Amazon, and Apple—is facing antitrust investigations in multiple countries. Simply put, words like competition are incompatible with Google’s conduct throughout the industry, and its monopolistic presence should at least color how the Court interprets the “standard practice” argument presented in this case.

If the Supreme Court can justly hold, as a matter of law, that the declaring code at issue is uncopyrightable under §102(b), then this is the only basis on which it should arrive at that finding. As for the broader implications for technological innovation, while it is certainly difficult to dismiss an august body of computer scientists, it is equally tough to reconcile the ways in which Android so dramatically belies their premise. Speaking as a consumer who feels pretty damned locked into very limited choices in mobile, I am simply not seeing the benefits of unlicensed reimplementation in this particular example.

*Though Microsoft is a player in mobile, it presently has a very small foothold.

Seuss Nixes Six, Sowing So Many Cli©ks!

In late January, I published a post advocating that we go ahead and cancel some culture. That piece was addressing the subject of platform responsibility, asserting that Facebook et al should feel free to stop amplifying disinformation, hate-mongering, and (unfortunately) sedition and that it should do so without all the dithering about speech rights. There, I asserted that neither Facebook, nor anybody else, needs to apologize for “cancelling” fascism or, more broadly, any illiberal and violent agenda hellbent on ending democracy.

Still, I am loath to use the term “cancel culture” at all. Like other neologisms, it has been sapped of meaning by grumbling Trumpublicans, who make no distinction between, say, deplatforming a white supremacist and a decision in the creative world where authors and stewards of works amend how they express themselves because it may be offensive to the market.

Can the intent to avoid offense go too far? Yes, in my view, it can. I believe, for instance, that it is illiterate to demand only a sanitized version of Huckleberry Finn, or to apply certain sensitivities so aggressively as to mute authors from expressing honest observations about the human condition. (If a writer creates a misogynist character who never utters a sexist remark, the result would be ridiculous.) But such instincts are not the only path to illiteracy. It is also illiterate not to know that certain forms of expression have always been ignorant or hateful—the most obvious of these would be the anthology of Black caricatures in America—and acknowledging this truth in the present is not a “cancellation” of anything. In fact, it’s culturally additive, if you think about it.

Because while there may be pockets of society that would hyperextend the effort to avoid offending anyone (an impossibility), it does not appear that our cultural output comprises the kind of tedious homogeneity one would expect as a result. On the contrary, cultural works are more diverse and complex than ever; and perhaps it is this fact alone that certain “conservatives” find so offensive. If that’s the case, I would point to their tattered and neglected hymnals and suggest they sing a few verses of the Free Market Is Doing Its Job.

But why this sermon? Because the latest bit of news that has a certain brand of conservative frothing in the media was the announcement by Dr. Seuss Enterprises (DSE) that it will discontinue publication of six titles. These are And to Think That I Saw It on Mulberry Street, If I Ran the Zoo, McElligot’s Pool, On Beyond Zebra!, Scrambled Eggs Super!, and The Cat’s Quizzer. 

The brief statement by the company declares without equivocation, “These books portray people in ways that are hurtful and wrong.” And in response, various pundits lashed out, blaming “post-modernist, woke, liberals” for wanting to erase or scrub the life out of all past works. And as much as I am willing to roll a jaundiced eye at excessive wokeness, that is only a fragment of the scorn I feel for all the hyperventilating reactions to DSE’s decision—especially the copyright nonsense it set in motion.

Copyright law was dragged into the conversation because, of course, it is copyright that enables DSE to cease the production of new copies of these titles. To be clear, however, it is first and foremost the speech right that safeguards us against coerced speech. Any author/rightsholder may choose to stop making a work available because it has become anachronistic, offensive to the market, unprofitable, or simply because the author has changed his damn mind about what the work says. The right to stop speaking is inherent to the First Amendment, and with published works, that right is enforced through copyright law.

Consequently, in response to DSE’s choice to discontinue these titles, some critics on both the left and right began noising that copyright law should be amended to prevent this sort of thing, although the motives for the prevention are obviously disparate. Culture editor Sonny Bunch, writing for the Washington Post, proposed that if an author/owner no longer wishes to profit from a work associated with offensive content, the work should fall into the public domain. But, as any author or copyright advocate can tell Mr. Bunch, merely divesting from the work financially does not dissociate the brand/author from the expression at issue.

But Can Everyone Please Get a Grip?

What I would say to nearly all parties reacting to this story is to please chill the hell out. Put the half-baked copyright theories back the in drawers and, by all means, stop whinging just because a franchise decides that some of its products are no longer appropriate for the children’s book market. Cultural works come and go. And nothing about the great “celestial jukebox” we call the internet has proven otherwise. On the contrary, one can argue that the short-attention-span reality fostered by social media has erased volumes of cultural literacy across all living generations. In fact, I have made that argument.

There’s a reason why illustrations of Pickaninnies and Sambos are found in museums and archives, but not on busses and billboards. Yes, these images are an unflattering part of the American story, and for that reason alone, they should not be erased from memory. But these images are rightly not part of contemporary culture because they are offensive and ignorant and anathema to peace and prosperity. Works come and go. And that’s fine.

Ever read The Castaway? Me either. It was a controversial (i.e. presumably racist) novel about the Civil War published in 1904, and it happened to be the subject of the lawsuit that gave us the first sale doctrine in copyright law. First sale is what allows you to sell or dispose of your copy of a work however you choose. And guess what? DSE’s right to stop making new copies of And to Think That I Saw It on Mulberry Street (1964) does nothing to prevent what may be a few million copies from existing as artifacts for collectors and, eventually perhaps, for archives and museums. Meanwhile, copies of the discontinued six are already selling for a small fortune on eBay and elsewhere. Thank you, first sale doctrine.

If your personal view is that nothing in the Seuss books is nearly so offensive as the Black caricatures I mentioned above, I would be inclined to agree, but that is entirely beside the point. Offense is in the eye of the beholder. And both the speech right and copyright law grant that judgment call to the rightsholder of the work. As a matter of business, DSE has every right to discontinue products it deems bad for the brand and to protect the market for the rest of the franchise. How anyone calling himself a Republican could argue with that is a mystery. But we live in strange and preposterous times.

Meanwhile, copyright law does not need amending to address a problem that does not exist. Authors and their assigns have the right to express themselves and decide whom they are willing to risk offending. And the market has a right to respond. Doubtless, there are hardline conservatives who consider The Lorax a work of liberal, tree-hugging indoctrination. And those people are free to shun the book or even write a parody extolling the economic value of Thneed production.* But otherwise, I really think everyone should chill the hell out.  

*I do not subscribe to this view; I still agree there is no need for Thneeds.

See also: Is It Fair Use to Reproduce Out-of-Print Seuss? by Aaron Moss