Category: Art

Google v. Oracle: A Troubling Use of Fair Use

Once the die was cast (i.e. after oral arguments) in Google v. Oracle, I don’t think I was alone in feeling that if the Supreme Court held that the computer code at issue in this case was not properly a subject of copyright protection, that would be an acceptably narrow decision, even though many might disagree with it as a statutory reading.1 On the other hand, I and others felt that if the Court held Google’s use of Oracle’s code to be a fair use, that would be potentially harmful to copyright law in general, and perhaps a disservice to many parties with an interest in this case—except of course to Google.

The argument against the copyrightability of the code at issue (a.k.a. declaring code or APIs), was founded on the merger doctrine, which holds that where an expression and its idea or function are inextricably bound together, the expression cannot be protected by copyright. Here, the majority opinion, written by Justice Breyer, declined to address that consideration, instead stating that “for the sake of argument,” the Court would assume the code is protected, and then it still delivered an opinion on the copyrightability question by couching it in a fair use analysis.

Although the Court did state that the decision is unique to software and does not “overturn or modify earlier cases involving fair use,” we must hope that summary can be reconciled with the part of the opinion which states, “The upshot, in our view, is that fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here.” That is a troubling generalization, which forces the fair use doctrine (a case-by-case defense) to do what the Court otherwise could have done instead, which would have been to write an opinion limiting the statutory protection for the code at issue, and also limit its own finding. In that instance, fair use should not even be considered. Instead, the Breyer opinion asks fair use to do something it is not meant to do.

As a result, this outcome not only could disturb case law, but it also falls short of providing the market certainty many in the software business were seeking in the briefs filed on behalf of Google. For instance, the brief signed by 83 computer scientists stated, “Forcing companies that reimplement APIs to rely on fair use will not meaningfully address … anticompetitive effects. Though better than nothing, a fair use standard creates uncertainty because it depends on fact-intensive, case-by-case determinations which can result, as this case demonstrates, in lengthy and expensive litigation.”

So, rather than providing that hoped-for certainty, by either accepting or rejecting the merger argument, it is notable that the opinion instead asserts factor two (nature of the protected work) of the fair use test ahead of factor one (purpose and character of the use) in order to frame its conclusion with a lengthy discussion about what declaring code does and why the Court agrees it is distinguishable as an unprotectable type of code. The opinion states:  “It is inextricably bound to­gether with a general system, the division of computing tasks, that no one claims is a proper subject of copyright. It is inextricably bound up with the idea of organizing task into what we have called cabinets, drawers, and files, an idea that is also not copyrightable.”

That is extremely close to saying the code at issue fails for copyright protection under merger. So, why didn’t the Court just go ahead and make that finding rather than risk sowing added confusion by stuffing a pseudo copyrightability opinion into prong two of a fair use analysis? Because now, it is possible that a greater number of parties will be disserved by this outcome.

Perhaps what happens in the market should not weigh too heavily where the Court restricts its opinions to questions of law, but this opinion makes clear in its fourth factor analysis that it is terribly concerned about broad market effects. And its assumptions about the market, especially the implications beyond software, seem divorced from reason as a fair use consideration. The factor four opinion suggests the majority was unduly persuaded by the argument that Sun was unsuited as a developer to create a product like Android. “…evidence at trial demonstrated that, regardless of Android’s smartphone technology, Sun was poorly positioned to succeed in the mobile market.” That is potentially a market-devastating view, and here’s why:

First, if a party authors a work that some other entity is potentially better at exploiting, that is grounds for licensing the work, not appropriating it. Consequently, the Court’s failure to hold, in a more straightforward ruling, that the code copied was not protected fosters this more insidious interpretation of “market harm” in its fourth factor analysis.

Second, the biggest gorilla in the sandbox just got a bonus prize. After all, won’t a company like Google always have the resources and capabilities to build the next doodad faster and better than another entity? But in Google v. Oracle, to “level the playing field,” the Court just held that a startup which cannot compete with the Googles of the world, may not necessarily license its IP to the giants either, depending on how one interprets this fourth factor reasoning. Because let’s remember, Oracle ain’t exactly a startup.

Third, imagine we are looking beyond software, and this fourth factor opinion can be argued to mean that, for instance, the novelist who is “poorly positioned” to make a film adaptation of her book is subject to a similar finding in relation to a film studio appropriating her work. Granted, that’s a bit extreme, and she would, we hope, be protected by other considerations in the law. But I use the example to underscore how flawed this view of “market harm” is as a matter of principle.

All the ink spilled in this part of the opinion, lauding the value of smartphones, the quality of the Android system, etc. is an argument that only proves market harm to Oracle due to the failure by Google to obtain a license—and one that simply waves a hand at any implication of the derivative works right. “Given the costs and difficulties of producing alternative APIs with similar appeal to programmers,” the opinion states, “allowing enforcement here would make of the Sun Java API’s [sic] declaring code a lock limiting the future creativity of new programs.”

That language, which connotes a hostility to copyright in general, upends the law by failing to acknowledge that licensing works does not lock up works. We have over 200 years of evidence and jurisprudence to back up that general premise. But again, if this Court accepted the market rationale for this outcome, then it should have held the code at issue unprotectable rather than write a fourth factor “market harm” analysis that describes any rightsholder as “poorly positioned” to exploit a particular use of their works.

By transforming a copyrightability opinion into a fair use analysis, the Court seems to have fallen for the temptation to limit copyright’s protections based solely on works already developed, while failing to more expansively imagine works that may or may not be developed in the future. Aside from the potential damage done to other copyright subjects by this fair use holding (despite the Court’s caveat), the opinion does little for the next software venture, except to tell its principals that when a Google-scale behemoth appropriates some amount of their code, they may be about a decade’s worth of litigation away from finding out if there’s a remedy. And the number of new ventures that can afford that is zero.

  1. I wrote against the merger argument here and here.

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

IP Rights & the Bernie Meme

The Bernie meme has been a lot of good fun and probably the kind of release valve many of us needed by the time we arrived battered, exhausted, and relieved to watch a peaceful Inauguration Day. My personal favorites are Bernie Merch Table, Bernie Yalta, and Bernie Chicago. And by now, almost everyone knows that Sanders’s campaign team had sweatshirts made with the photo and that 100% of the proceeds from the sale of those shirts—nearly $2 million so far—is being donated to Meals on Wheels and other charities in Vermont.

But viral memes—and separately the sweatshirt story—reprise some common copyright issues and likely misconceptions worth mentioning, beginning with a general reminder that no matter how rapidly or broadly a meme goes viral, this does not transfer the original photo into the public domain. The bemittened Bernie photo was taken by staff press photographer Brendan Smialowski and is owned by Agence France-Presse (AFP). It can be licensed for editorial use via Getty Images, which means it’s rather pricey. But what does that even mean after the image has been reproduced in hundreds (thousands?) of satires in the biggest game of Where’s Waldo ever played?

Memes, Fair Use, & Grandma

Memes are a favorite topic whenever the anti-copyright crowd aims to criticize online enforcement. From technical measures used to identify and flag protected works to the small-claim tribunal that will be established by the CASE Act, the critics either predict the death of the meme as a cultural phenomenon and/or that innocent sharers of memes will wind up inadvertently owing some rightsholder a big pile of money. The familiar hypothetical alleges that your grandmother will share, for instance, Bernie at the Last Supper and end up on the hook for a damage award shortly after the Copyright Claims Board (CCB) is formed under the terms of the CASE Act.

But in addition to the many protections for “grandma” in the CASE Act, most memes—and omnipresent Bernie is a good example—would be protected under the doctrine of fair use. To review, the fair use analysis weighs four factors. Factor 1 considers the purpose of the use, including whether that purpose is commercial; Factor 2 considers the nature of the original work, namely whether it is more factual or expressive; Factor 3 considers the amount of the original work used to achieve the purpose; and Factor 4 considers whether the use may cause potential harm to the market for the original work.

These factors are weighed interdependently, and here’s what the Bernie memes look like as a rough analysis:  Under Factor 1, the memes generally add new expression to the original and are not made for commercial purposes; under Factor 2, the original photo is slightly more informative than it is expressive;* under Factor 3, the heart of the work is used in every meme, but the amount used is arguably necessary to the purposes under Factor 1; and under Factor 4, no single meme is likely to cause harm to the market for the original work. But put a pin in that last point because it prompts a slightly different conversation.

Meme makers are everywhere, and those of us who share their lampoons number in the millions. But aside from the practical reality that memes cannot be stopped, it also happens to be true that, very often, there would be no legal basis for stopping them. But having said that, there were quite a few commercial enterprises that jumped into the fray with their own Bernie variations, promoting everything from local stores to major brands. And that’s where things can get a little trickier, both from the perspectives of the copyright owners and the subjects in the photographs.

Using a work for a commercial purpose tilts away from fair use under Factor 1; and in these examples, Factor 4, potential harm to the market for the original, would likely be the deciding consideration if, say AFP were to sue a business for turning their Bernie image into an advertisement. But even this consideration may be influenced by the fact that AFP does not have the independent right to license the photo for commercial use either.

As with nearly all photographs of famous people, AFP only offers a license for editorial use. Photojournalists do not obtain commercial releases, and no subject in his right mind would sign such a thing on the spot. Although confusion on this matter persists, the simple rule to remember is that the photographer (or his employer) owns the copyright in the image, but the subject(s) own their right of publicity (ROP). So, in this example, Bernie may not mind if the local bookshop memes him sitting in front of their store, but he might feel quite different if his likeness were used to promote, say, a Wall Street firm.

The point is that with regard to both copyrights and rights of publicity—and ROP vary state to state—commercial users both large and small should at least think about what they’re doing before leaping into a meme mosh pit. Just because everyone is doing it does not mean the rules are the same for commercial users as non-commercial ones. And without careful consideration, the commercial user could easily find itself on the wrong side of a litigation under copyright or ROP law, or both.

The Sweatshirt is a Commercial Use

Prospective users of photos, etc. should also remember that commercial use is not about profit per se. Raising money for charity is still commercial use under the law. I sent an email to Friends of Bernie asking whether they had contacted AFP regarding the sweatshirt, and I was not very surprised that they did not respond (**see note below). But regardless of this unusual circumstance involving a popular progressive senator, a sudden meme frenzy, and raising money for charities, nobody following this story should be confused about the fact that you do not automatically own the right to reproduce an image of yourself. In general, if you want to make shirts or coffee mugs or keychains—even to raise money exclusively for a worthy cause—you need permission from the copyright owner.

At the time of first publication, I did not know whether Bernie’s people obtained permission, but I am confident that the this story will confuse many potential users of photos into thinking that Team Bernie did not have to consider doing so. To put this in perspective, as a matter of copyright law, Bernie’s reproduction of the photo onto sweatshirts is no different from the McCloskeys’ reproduction of their infamous gun-wielding photo onto Christmas cards. And in that case, the photographer did take legal action. So, prospective users of works should remember that the legal standard is not one thing because we applaud Bernie’s use and another because we revile the McCloskeys’ use—or vice versa for some.

The Market Value of Photographs

I mentioned above that most memes under Factor 4 of the fair use test will be considered non-harmful to the market for the underlying work; but this is a tough subject that provokes lot of sympathy for professional photographers. A single meme, analyzed on its own, would likely be considered non-harmful, depending on certain aspects of the original photo and how it was used in the meme. But it cannot be ignored that the cumulative effect of a meme gone viral—or even widespread sharing of an unaltered image—can obliterate the market value of an original photograph—and licensing photos is how photographers pay their bills.

In this instance, Smialowski commented to Rolling Stone, “The picture itself is not that nice. It’s not a great composition. I’m not going to be putting this in a portfolio.” But the broader point is that meme frenzies make no distinction about the relative market value of the image being used. On that topic, photographers and all authors of works are acutely aware that the insidious commercial users in these viral phenomena are the social platforms themselves. While it is true that the meme-maker who put Bernie on Forrest Gump’s bench had no commercial interest, and neither did anyone who shared the image with friends, the data produced by all the sharing is worth a fortune to Facebook, Google, Twitter, et al.

Resolving that issue remains a challenge for professional journalists and millions of authors of creative works in the digital age. And in that effort, I hope that Senator Sanders himself, as an avowed champion of labor, takes note that creative professionals comprise a substantial segment of the American middle class and that copyrights are the equivalent of their labor rights.

*As stated in the Rolling Stone quote, even the photographer would likely say that the photo is not highly expressive with respect to his authorship.

**NOTE: Thanks to comments on Twitter, according to ABC and other news sources, Getty Images was contacted and agreed to donate licensing fees to the causes. Bernie Sanders’ mittens, memes help raise $1.8M for charity – ABC News (go.com)