Category: Software

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.

Google v. Oracle VII: Google’s Gaslight Defense, A Lesson From the Age of Melodrama

Google and its supporting amici rely substantially on painting a landscape of a contemporary software industry that is highly dependent on what they describe as “reimplementation” of certain types of computer code. Specifically, Google maintains, that the “declaring code” they copied for the production of the Android platform is so exemplary of standard practice that Oracle’s claim of infringement threatens the manner in which the industry has learned to operate over the last two or three decades.

That’s one version of the story, and it’s a narrative that has partly been written by the ten-year Google v. Oracle litigation itself. The other (one might say simpler) version is that in 2005, Google saw that the freight train called Mobile had already left the station and was about to squash its dominant position in online search and advertising, and the company raced to build a platform that could scale very quickly, in an effort to maintain said dominance. Achieving that aim required Android to attract developers to rapidly build apps for the platform, and that, according to Oracle, is the reason Google copied 11,000+ lines of “declaring code” without license, rather than writing its own code to perform the same functions.

Google counters that the “implementing code” component of the Java methods is where the creativity lies, and that because they wrote their own implementations in conjunction with Oracle’s declarations, they did not infringe anything. This bifurcation of the Java components, along with the reimplementation argument, and even the metaphor of a train about to smash into Google’s ad business, all brings to mind a seminal copyright case from 1868 called Daly v. Palmer. The infringed work in that case was a single scene in a stage play, and the matters raised, including the context of the theater industry at the time, offer an interesting analogy for considering Google v. Oracle.

As a matter of copyright statute, we know of course that computer code is squarely in the category of “literary works.” A colleague once explained it to me by saying, “Think of code as writings that a computer can read.” Fair enough. But for the purposes of this post, let’s compare software to “dramatic works” because the infringed work in Daly v. Palmer, I would argue, is analogous to “declaring code,” and the infringer in that case (just like Google) wrote what we might call his own “implementing code,” as well. But this did not distract Judge Samuel Blatchford of the District Court for the Southern District of New York from seeing where “a piracy” had been committed. First, some background …

Daly, Boucicault, and the Age of Spectacle

The sluggishness with which the United States approached the protection of foreign authors—roughly sixty years of dithering on what was typically summarized as the “international copyright question”—contributed to a post-war theater industry rife with plagiarism and unlicensed adaptations. In particular, New York producers entertained the city’s growing middle class in a frenzied, ad hoc, process that did not resemble anything like modern theater production. A show (often some unlicensed adaptation of a European story) might be on the boards for little more than a week, and a show that ran for a month was a hit. In this hodge-podge market, creative poaching—call it the reimplementation of its time—was not only common practice, it was essential for any theater manager who hoped to remain in operation.

In this atmosphere of constant churn, it is important to understand (with regard to Oracle) that when John Augustin Daly thrilled audiences in 1867 with the exciting railroad rescue in his play Under the Gaslight, this scene was the invention that made his melodrama a megahit for its time. Now a cliché, of course, the sequence is as follows:  a young man is tied to the tracks; the train is fast approaching; a heroine, who is locked in a nearby shed, breaks free and releases the man just before the train rushes across the stage, leaving the pair unharmed.

When Daly’s “railroad scene” was soon reimplemented in the London play After Dark, dramatist Dion Boucicault set the same sequence of events in the Underground with different characters, different dialogue, and slight variations on the action—and, of course, in the context of an entirely different story. But Daly believed his creation had been appropriated and that Boucicault had copied the most valuable component of his play, especially in a time when such spectacles were box-office gold. Thus, when After Dark was arranged for production in New York, Daly filed suit, principally to enjoin the use of his “railroad scene,” at least in America.

Stage Directions are Like Declaring Code & Computers Are Like Observers

Daly was seminal for three main reasons. First, it helped clarify the meaning of the “public performance” right, added to the bundle of copyrights in 1856. Second, it affirmed that part of a whole work can be protected by copyright. And third, it is generally viewed as the source of the “ordinary observer” doctrine, which considers whether a regular individual, perceiving an allegedly infringing work, will reasonably find that it is a copy of (i.e. “substantially similar” to) the allegedly infringed work.

Judge Blatchford, who would be appointed to the Supreme Court in 1882, found that Boucicault’s “railroad scene” had infringed Daly’s creative expression. He affirmed that the stage directions were individually and sufficiently expressive, regardless of the words used to instruct the dramatic action and separate from any dialogue, or other elements, in each scene. He then held that Boucicault had copied what we would today call the “heart” of Daly’s work.

Boucicault’s play contains everything which makes the “railroad scene” in the plaintiff’s play attractive, as a representation on the stage. As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed if that in which the whole meritorious part of the invention consists is incorporated in another work, without any material alteration….

Daly’s “declaring code” (if you will indulge the analogy) breaks down thus:

Character A is confined in a space behind a locked door. Character B is helpless on the tracks. Lights and sounds herald a fast-approaching train. Character A uses an available tool to break free of confines. Train gets closer. Character A sprints to remove Character B from tracks. Train races across the proscenium. Nobody dies.

These instructions, regardless of the words used, are commands that the performers and stage hands must follow in a specific manner in order to effect the desired result—fear followed by relief—in the observers. And because these commands are the structural elements of the dramatic scene (i.e. not colored by dialogue, production design, or even the overall story), we can analogize them to “declaring code” in a single API. They are unquestionably part of the whole expression the audience experiences, but they are creative on their own and, again, the heart of Daly’s mental conception. Now, compare Daly’s stage directions to this example from Oracle’s brief describing one of its declarations:

Give me a security key (which I’ll call “verificationKey”) that you want me to use to verify a signature that you previously gave me. Also tell me the algorithm I should use to verify the key (I’m calling that “verificationEngine”). Caution: You can’t just give me any algorithm. The algorithm must meet specified requirements that you can find elsewhere (a class I call “Signature”). There are two ways this might not work (“exceptions”)—the key might be wrong (“InvalidKeyException”)or the algorithm might be wrong (“SignatureException”). If so, I’ll give you an error message. If the signature is valid, I’ll say, “True” (that’s what “boolean” means).

One need not have a clue what any of that means to consider that declaring code (stage directions), directing certain operations in a certain sequence (performers), will yield a certain result from a computer (audience). And because software experts tell us that there is creativity in how one designs, expresses, and organizes declaring code, just as a dramatist will say the same thing about stage directions, we can assume the creativity is present, even if we are not programmers. Judge Blatchford correctly identified that Daly’s creativity lay in the design, organization, structure, and timing of the “railroad scene,” and held that it was sufficiently expressive.     

Google, with its emphasis on the “implementing code” code component asks the Court to come to the opposite conclusion, to retroactively hold that Daly’s stage directions merely constructed a non-creative environment in which the “real” expression took place. Like Google, Boucicault also based part of his defense on the creativity he brought to the table, emphasizing the ways in which he had transposed, or colored, his “railroad scene” differently from Daly’s. Judge Blatchford rejected this premise and articulated the “ordinary observer” doctrine at the same time, writing:

“A mere mechanic in dramatic composition can make such adaptation, and it is a piracy, if the appropriated series of events, when represented on the stage, although performed by new and different characters, using different language, is recognized by the spectator, through any of the senses to which the representation is addressed, as conveying substantially the same impressions to, and exciting the same emotions in, the mind, in the same sequence or order.”

While it may be odd to think of a computer as an “ordinary observer,” it is in fact the most ordinary of observers, one that responds predictably—not by displaying emotions like relief or pathos, but by displaying results like data, text, images, sounds, calculations, functions, etc. Daly’s “railroad scene” directions (his declaring code) elicits a distinct kind of thrill from the audience (computers), without barring any other playwright (code developer) from producing a similar response from audiences by means of equally dramatic, but distinct, rescue scenes.

Protecting Expression, Not Results

The same generalized concern was raised in Daly as it is in Google v. Oracle. If Daly were granted his injunction, it was feared, this would be tantamount to granting him a monopoly on an idea—perhaps extending him the right to license all scenes involving trains nearly hitting people or all nick-of-time rescues. In fact, Daly did try to overreach in this regard, but importantly, “…even with respect to its core holding, subsequent cases narrowed Daly rather than expanding it,” writes copyright scholar Bruce E. Boyden.[1]

The Second Circuit did not even allow Daly to extend his complaint to a production of After Dark with a modified railroad scene. Specifically, that court held, “…in all except the rescue by a third person, the complainant was not the first to conceive the story,” stated the opinion. So, even in those nascent years for both the dramatic arts and modern copyright law, Daly’s protection was almost immediately limited to the “reimplementation” of his particular rescue sequence for use in stage plays. He was not granted copyright on all nick-of-time rescues nor indeed all narrow escapes from oncoming trains. Thus, it seems fair to consider, at least by analogy, that protecting the creativity of Oracle’s declaring code (if it is indeed analogous to Daly’s railroad scene) is not coextensive to a monopoly on the desired results.

Don’t Get Stuck on the Wrong Analogy

At first glance, Daly might appear to offer the wrong defense for Oracle. One could get hung up on the fact that Daly and Boucicault each used different words (code) to instruct performers in order to produce the same general result for audiences, and that this is the relevant distinction in Google v. Oracle. In fact, Oracle has averred that if Google had used its own code to achieve the same result, this litigation would have no foundation; and one might be tempted to argue that this is where my whole analogy breaks down. But only if we misread Daly. Judge Blatchford states …

“Boucicault has, indeed, adapted the plaintiff’s series of events to the story of his play, and, in doing so, has evinced skill and art; but the same use is made, in both plays, of the same series of events, to excite, by representation, the same emotions, in the same sequence. There is no new use, in the sense of the law, in Boucicault’s play, of what is found in the plaintiff’s ‘railroad scene.’ The ‘railroad scene’ in Boucicault’s play contains everything which makes the ‘railroad scene’ in the plaintiff’s play attractive, as a representation on the stage.”

Stagecraft (declaring code) is creative. Moreover, Judge Blatchford’s reference to the “attractiveness” of Daly’s scene is a soft allusion to the market-based motive for Boucicault’s copying so valuable a scene, which brings us back to the other reason Daly is an interesting framework for reviewing Google v. Oracle. One could, of course, critique the analogy because Daly entails non-literal copying while Google entails literal copying, but Google probably would not want to go there, since case law recommends stronger protection where literal copying has occurred.

A Reminder that Reimplementation is Another Word for Copying

In addition to Judge Blatchford’s opinions in Daly v. Palmer, the history surrounding that case reminds us that the claims of any industry’s “need” to copy should always be viewed skeptically. Despite the fact that chronic appropriation (including by Daly and Boucicault) unquestionably catalyzed an abundance of theater activity in the nineteenth century, few of the plays from that period would be viewed by modern audiences as terribly “original.”

As was the case with American publishing in the nineteenth century, investment in new dramatic works—and Boucicault was among the preeminent dramatists to suffer in this regard—was stifled until the 1891 copyright law adopted reciprocal rights with foreign nations and relieved the theater industry from a vicious cycle of chronic appropriation. Hence, those who, like Google, tend to overemphasize “reimplementation,” and regard copyright as an intolerable obstacle to their business models, seem to reflect a lack of imagination that would have failed to anticipate the explosion of creativity that occurred in the twentieth century.

In fact, as both creativity and copyright law evolved since 1868, we came to recognize that endless variations on scenes a faire, nick-of-time rescues coexist within in a rich tapestry of dramatic works. Likewise, it is at least plausible—if not irrefutable—that if Google’s copying in this case is held “a piracy,” that somehow creative variety will manage to prosper in the software industry. Therefore, it will be interesting to see whether the Court is persuaded by Google’s allegedly urgent need to copy, or whether it concludes that Google simply dashed onto the tracks to rescue its ad business. 

[1] See Bruce E. Boyden, Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer. https://ssrn.com/abstract=3157782

Google v. Oracle VI: Google’s Distract, Divide, and Conquer Strategy

As proceedings in Google v. Oracle were delayed by the coronavirus, I also paused writing about the case, but now that oral arguments are scheduled for October 7, this topic will return to the headlines in copyright and tech news. During the break, I had the opportunity to review all the briefs filed in this case, and as a general assessment, it does seem as though Google and its supporting amici want to portray software as a special category of works that is somehow protected according to different standards than other categories of works under copyright. Because software is always functional in nature, and because copyright does not protect functions, it is certainly a category that can seem confusing to discuss.

Consequently, Google’s strategy (and not for the first time) reads as though it is designed to exploit any inherent confusion about computer science, or the industry, with the hope that the Court will misinterpret the keystone legal question in this case. At the very highest level of appeal, they seem to be saying even to the Justices, “You legal folk don’t get technology.” Copyright owners in every medium are very familiar with Google’s repeated (and often successful) use of this rhetorical device in the blogosphere, and while it is often suspect in the court of public opinion, it is a profoundly dubious strategy in a court of law.

Google and its amici repeat the themes that if the Court were to affirm the Federal Circuit’s finding of infringement in the use of what they call “declaring code” (a.k.a. source code), this would be an unprecedented expansion of copyright. As a result, the argument continues, this will allegedly stagnate investment and competition in the code-writing industry by transforming the biggest players into monopolistic entities, who will then use their “new” copyrights to stifle innovation and interoperability.

That is a doozy of an accusation to be made by one of the most anticompetive companies in modern history—and then to be leveled at a plaintiff whose product is designed to promote interoperability—even mandates interoperability by all licensees. This claim also belies the many advances in innovation and software development in the period since the Federal Circuit’s 2014 decision in favor of copyrightability. But I’ll return to the particulars of the business squabble in a later post. For now, let’s focus on the copyright question before the Court.

The Keystone Legal Matter:  Copyrightability of Declaring Code

My general takeaway from the briefs is that the Court will not be easily persuaded that even the declaring code copied by Google fails to meet the standard of originality sufficient for copyright to protect these works. “Originality” under copyright turns primarily on the determination that a modicum of creativity is present in the work, and not even Google and its amici seem to present a full-throated contradiction to Oracle’s industry-expert amici who say that declaring code can be highly creative. In fact, it seems to be widely acknowledged that Java in particular has been so successful because of its tremendously creative (a word often used is elegant) design.

If it is true that the declaring code and the implementing code together comprise the “human readable” set of instructions given to a computer, this suggests that declaring code can be a significantly important aspect of the expression. In particular, we must assume that when countless human programmers describe code as “elegant,” the authors of that code have communicated something to them in a manner akin to a novelist communicating to her readers. That something, in copyright terms, is generally found to be “creative enough” to fall under legal protection.

Although Google does have more software engineers signed onto its supporting briefs, the Court does not ask for a show of hands. Moreover, it is notable that even those briefs appear to navigate around the central matter of copyrightability, claiming that declaring code is the functional part of an API, while only the implementing code, which Google wrote itself for the Android platform, is the expressive part.

The computer scientists in support of Google imply that the declaring code is non-creative—that it is akin to a language, which, by itself “does not tell a computer to do anything.” But if I understand the development and function of a whole Java package correctly, there is a sleight of hand at work in this claim, one that seeks an idea/expression analysis that is not demonstrably inherent to the work at issue. For instance, the computer scientists’ brief for Google presents a very simple example of declaring code that is used to sort numbers, and then it states:

“A programmer must type those words exactly as they appear above, including the same capitalization, punctuation, and order. Otherwise, the declaration will cause an error or specify a method with different functionality, like sorting words instead of numbers.”

That description as to how a programmer must use that particular code does not in any way answer whether the code at issue is sufficiently creative for copyright to attach. It also obfuscates the fact that Google could have written its own declaring code in Java to perform the same functions. To borrow an analogy apropos the copyrightability question, consider that a musician must play exactly certain notes in a precise order (and within a limited range of tempos) in order for a listener to recognize that the song being played is “Hey Jude.”

So, Google’s broader argument, begging the Court to divide declaring and implementing code, begins to appear rather circular—the equivalent of saying that because “Hey Jude” is widely recognized by musical performers and listeners, a new composer may need to implement this melody into a larger composition; and, in order to do so, he must copy exactly the correct notes in their precise structure in order to maintain the “readability” of the song. But this meandering rationale does absolutely nothing to nullify the copyright in the composition that was copied. Ditto, it seems, with the 11,000 or so lines of code copied by Google.

Sticking with this analogy, Google would ask the Supreme Court to vitiate copyright in a musical work’s composition on the untenable premise that copyright does not attach until the composition is colored by arrangement and performance choices. But that is not correct. On the contrary, a work is copyrightable as long as it is 1) fixed in any tangible medium of expression; and 2) embodies a “modicum of creativity.” And according to the computer scientists in support of Oracle, Java APIs are more than modestly creative …

“Significant creativity goes into the design of the structure, sequence, and organization of the API itself, including how to structure the libraries, packages, classes, and methods, as well as the declaring code itself. Indeed, part of the beauty of Java is that groupings and classes often share or ‘inherit’ features that are commonly used, such that the decision of how to group classes and methods becomes a creative design choice, not just a categorizing or filing exercise.”

Replace words like libraries, packages, classes, and methods with keys, chords, notes, tempos, and rhythms, and one need not be a composer to understand that certain selections among these common elements will produce “Hey Jude,” while an entirely different selection among these same elements will produce “I Wanna Be Sedated.” Likewise, the Justices need not possess any programming experience to conclude from that description (if accurate) that the declaring code at issue is a work that easily meets the threshold of originality within copyright law.

Google’s Idea/Expression Claim May Reveal Its Own Weakness to the Court

Google appeals to the limitation under Section 102(b) that bars copyright protection to “methods or functions.”  In order to support this claim, a few amici ask the Court to turn to the doctrine of “separability” under an infringement analysis whereby the Court separates the expressive elements of a work from any functional “article” to which they are attached. In 2017, the Supreme Court did such an analysis in Star Athletica v. Varsity, where the majority opinion held that the designs Varsity made for its cheerleader uniforms were independently copyrightable as pictorial works, separate from their application to the useful, non-copyrightable, uniforms.

Amici Python Software et al, in support of Google, contend that this Court’s precedent in Varsity should favor Google because it will not find any expression to protect if they separate the declaring code from the whole work of the Java APIs. But, that line of reasoning may undermine Google’s defense because Varsity affirmed just how minimally original a work can be in order for it to be protected. In fact, in Justice Ginsburg’s concurring opinion, she disagreed that separability had to be considered in Varsity, holding that the works submitted to the USCO were “not designs of useful articles. Instead, the designs themselves are copyrightable…works reproduced on useful articles.”

That kind of straightforward analysis may not avail Google, if the Court agrees with Oracle’s software-expert amici that the declaring code copied is not merely functional like the gears in a machine, but is an expressive work on its own. As several amici in support of Oracle noted in their briefs, Google’s own witness, its “Java guru,” testified that there can be “creativity and artistry even in a single method declaration.”

In sum, the various claims that the declaring code is not creative begin to read a bit like after-the-fact wishful thinking, which would mean that Google is the party seeking the unprecedented legal standard in this case. As several amici for Oracle mention, this recommends an appeal to Congress and not the Court. Add to all this the fact that the separability Google is now seeking was debated and rejected at the time computer code was added to the Copyright Act in 1980, and their claim of non-copyrightability begins to look like a strenuous climb over a very steep mountain of settled law.