Tag: EFF

Google v. Oracle Part II: Copyrightability and Contortionism

As noted in Part I, there are a lot of moving parts to this story that cannot be addressed in a single post; but the one thread readers should not lose is the fact that this whole dust up started because Google was the first commercial user since the launch of Java in 1995 to refuse a license agreement.  Undeterred by that legal requirement, Google proceeded use Java code to develop one of the biggest commercial ventures in computing history; and if anyone out there believes they declined to enter into that license agreement in order to foster greater competition and innovation in software, then you have not been paying attention to Google’s globally anti-competitive conduct in the market to date.  But in this post, I want to begin to address some of the legal arguments that have been presented in Google v. Oracle.

In the most basic terms, several of Google’s supporting amici—and therefore the story that seeps into the blogosphere—asserts that the “declaring code” Google copied in the process of developing Android is not properly a subject of copyright (i.e. cannot be protected).  And even if this code is protected, Google claims that its use constituted a fair use.  I shall set the fair use defense aside for a future post and address the challenge to the copyrightability in Oracle’s computer code, which turns on a single argument that what has been called the “declaring code” amounts to a system or function rather than an authored form of expression. 

I personally see two significant and intertwined challenges with regard to following this case.  First, because most of us have little or no foundation for recognizing the amount of “creativity” in computer code, it is a category of works that is highly dependent upon analogy and expert testimony; and second, because Google and most of its supporting amici are known to be anti-copyright ideologues, it is reasonable to ask whether the central argument being made is well-grounded in facts about the code at issue, rather than opinions that (once again) seek to undermine the nature of copyright itself. 

Certainly, we have seen many arguments try and fail to holistically weaken copyright in other cases; and one hint that this game may be afoot in Oracle is the amount of logical contortionism demonstrated by certain amici on behalf of Google.  And I really do mean contortionism because, for example, EFF and PublicKnowledge argued in 2017 that the question of copyrightability in the declaring code was “settled” by a completely different court finding that a system of yoga poses was not copyrightable.  If that sounds like comparing bindis and bytes to the reader who is unfamiliar with copyright law, let me suggest that it may also sound that way to those familiar with copyright doctrine in this particular case.  But now, I have to back up a bit. 

One-hundred years before software was added to the statutory protection of copyright, the Supreme Court articulated a seminal distinction in Baker v. Selden (1879), holding that although Charles Selden’s book describing his new method of bookkeeping was of course copyrightable, the bookkeeping system itself, no matter how novel, was not a subject of copyright.  In addition to its foundational role in defining the idea/expression dichotomy,* Baker also gives us the principle of the merger doctrine, which holds that when there is only one way (or just a few ways) to express something, the expression is not protected because it is said to be “merged” with the idea.  (Google’s defense hinges substantially on merger.  More on that in the next post.)

Jump to 2015, and Yogi Master Choudhury Bikram asserts in litigation with an American yoga studio that his system to promote health by means of twenty-six yoga poses and two breathing exercises, as described in his 1979 book, is protected by copyright.  Once again, the book is clearly a subject of copyright, but Bikram’s selection and arrangement of poses and exercises to bring about a particular result are, like Selden’s system of bookkeeping, not protected by copyright.  Consequently, the 2017 amicus brief filed jointly by EFF and PublicKnowledge contended that Bikram “settles” the question of copyright in the Java code, citing the Ninth Circuit opinion that, “the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.” 

That statement is true and a perfectly sound response to Bikram’s argument that he could have made different selections among poses and exercises to achieve a desired result; but even if Bikram had not asserted that particular claim of “creativity,” the doctrines established in Baker in 1879 would have been sufficient to deny copyrightability to a system of yoga poses.  So, not only does Bikram fail to “settle” the question of copyrightability in Oracle’s declaring code, but asserting that it did reads as something of a detour around the only question that matters—whether there is authorship in the code, distinct from the function it performs when executed.  And unlike yoga poses, computer code is expressly protected as a “literary work” under U.S. copyright law. 

I will dig into more detail about the nature of the code in question in the next post about this case, along with a look at arguments presented in the briefs filed with SCOTUS in support of Google this week.  But the reason I decided to highlight the Bikram detour in this narrative is that the defenses for Google seem to contain a lot of hyper-extended arguments—legal chakrasana, if you will—that begs the question as to how strong the “non-subject of copyright” argument really is.  For instance, the EFF/PK brief sought to identify an apparent doctrinal split between the Ninth Circuit holding in Bikram and the Federal Circuit holding in Oracle that its code is copyrightable …

“A finding of copyrightability [by the Federal Circuit] based on the fact that ‘the author had multiple ways to express the underlying idea,’ cannot be reconciled with the Ninth Circuit’s holding that ‘the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.’” (citations omitted).

Again, in the context of a system of yoga poses, it is unremarkable to say the existence of other yoga poses does not make the system any more copyrightable.  EFF/PK tries to turn that holding inside out to mean that the creative expression of Oracle’s code isn’t copyrightable.  EFF filed a brief with the Supreme Court on this case this week (separate from PK) that no longer quotes Bikram, but continues to argue Oracle’s code is not copyrightable because it isn’t creative.  You or I might choose different words to express a concept, but that is more or less the soul of copyrightability – the protection of the author’s specific expressive choices. 

For instance, the Ninth Circuit language in Bikram would never suffice as a reason to deny copyright in non-fiction works like news articles.  Ten journalists developing their own versions of roughly the same story will be working with the same set of facts (we hope), but each will employ what we might describe as “multiple different methods”—arrangement of material, vocabulary, tone, amount of detail, editorial—to “attain a particular end.”  So, copyright in journalism very much does attach principally because each author takes her own approach to communicate similar—if not the same—useful information to the reader.  The same is true for programmers developing software to perform the same or similar functions.

All subjects of copyright (whimsical products of subjectivity that they are) have long been described and debated by analogy; and this is one reason why precedent language can be rather vexing when a case involving one category of works is cited in a case involving a different category—let alone comparing a non-subject like yoga poses to a statutorily defined subject like computer code.  But perhaps all this “filler” has something to do with the business story behind this conflict. 

To recap, hundreds of commercial developers licensed Java before Google set out to make Android—not one of them saying, “Hey, this isn’t copyrightable!”  Google was about to license Java in 2005, but declined to do so because the license required a level of interoperability, which (by all appearances) would have been a barrier to Google’s interest in market dominance—a dominance it now enjoys.  So, it does begin to look just a bit like Google went searching after the fact for a legal theory to justify its decision to simply bypass a creator’s copyright.  Sound familiar?  This is why is it worth asking how much this case is really about the copyrightability of Oracle’s declaring code in Android, rather than a challenge to the copyrightability of computer code in general—or to any protected works for that matter.

EFF Sides With Goliath (again) in Opposition to CASE Act

Now that the bill creating a small claim provision for independent authors of works is making progress in Congress, EFF has pivoted to its standard late-stage strategy whenever they try to kill legislation: the dissemination of scare-mongering bullshit. I do not mean that I disagree with them. There are not two sides to the story they are telling or considerations about which well-meaning parties can disagree. I mean the EFF is just plain lying when they try to scare people into believing that “Life-altering lawsuits could come to regular internet users” as a result of the CASE Act. No they bloody-well cannot.

The narrative being pushed by the EFF is that the small-claim provision will make litigation so easy for claimants, that more copyright owners will go after more regular folks. They want me to believe this means a higher probability that if my kids, for instance, share memes with photographs, I could be liable for damage awards that would indeed be damaging to my ordinary income.

But as explained in previous posts (because one can actually read the bill), CASE does not make enforcement so easy that rightsholders are suddenly going chase down every innocuous use of their works looking for quick payouts from ordinary users. For instance, rightsholders are limited in the number of claims they can file by both statute and their own resources. So, as a matter of common sense, if you could only file so many claims at a time, are you going to pick the handful of commercial users who should have licensed your work, or are you going to try to file against hundreds of users who might have shared some meme that was made out of your work?

Then, of course, there is that nagging little detail that the small claim tribunal is a VOLUNTARY alternative dispute resolution procedure. How can a process that is VOLUNTARY possibly result in what the EFF is alleging? Any notice served must prominently state that the tribunal is voluntary, and this will be repeated by the Copyright Claims Board when it sends its notice. I am always amazed that organizations like EFF, who claim to defend the internet, seem to think that this kind of information is not available to ordinary people via the internet. One might almost think the organization is behaving like…what do they call them?…gatekeepers?

The EFF presents itself as a crusader standing up for ordinary people against the powerful, whether that power is held by public or private institutions. Yet, their dishonest portrayal of the CASE Act is further evidence that their defense of the “little guy” does not seem to include all the defenseless victims of the digital age. The fact that their definition of the “little guy” does not embrace the working photographer who gets ripped off is no surprise, of course. After all, they do not even consider victims of harassment, revenge-porn, or trafficking to be worthy of so much as a conversation about altering Section 230’s immunity for web platforms that profit from these crimes.

By now, it is clear to most people that the internet creates new opportunities for bad actors just as it creates new opportunities for good ones. The EFF is not responsible for this unavoidable condition, but they do appear to have chosen sides, consistently determining that certain victims are worth sacrificing for what they have determined is the “greater good.” Who put them in charge of making that decision is a solid question, but it is hard to miss the fact that the “greater good” does frequently align with the interests of the major internet and high-tech corporations.

On the other hand, maybe the EFF is not the Silicon Valley shill that many have accused the organization of being. Maybe they sincerely believe what they are saying about the CASE Act and are not liars so much as they are merely incompetent. Either way, it’s scare-mongering bullshit. And don’t we have enough of that on the internet? Including more than a few of those precious memes the EFF is so worried about.

EFF Observes (Anti) Copyright Week

So, it turns out it’s Copyright Week.  I had no idea, and it’s already Copyright Hump Day. What with the government shutdown, the Barr confirmation hearings, the litany of breaking stories in the Russian-interference investigations, I just didn’t notice.  But then I saw a post by the Electronic Frontier Foundation recognizing Copyright Week, including an obligatory “SOPA lead” as recommended in the IOM Guide to Critiquing Copyright in the Digital Age.  Because, of course, for the EFF, it’s Anti-Copyright Week.

Initially, I thought there is no way to respond to the EFF’s post other than a) citing dozens of thoughtful experts who know how copyright works; or b) quoting the eminent attorney Vincent (Joe Pesci) Gambino’s entire opening argument in the murder trial of his cousin:  “Everything that guy just said is bullshit.”*

But that prompted a different thought.  After more than six years banging out this blog, I feel confident about saying that there are two very different kinds of copyright critics in the grand debate; and unfortunately—because any area of law is usually arcane for most of us—it is the least honest critics who wield the most public influence.  In yesterday’s response to Professors James Boyle and Jennifer Jenkins, you won’t find me accusing them of dishonesty, only questioning their ideas.  But with the EFF, Public Knowledge, Fight for the Future, Cory Doctorow, and Mike Masnick, it’s a different story.  These voices consistently misrepresent the law and history in the service of their policy agendas.

This latest post by EFF is PR disguised as copyright criticism—comparable to health information sponsored by Big Tobacco or environmental reports funded by Big Petroleum. There may be kernels of truth, but they are well hidden in a fog of obfuscation and outright falsehoods.  Here are a few classic examples featured in the five main topics EFF says it is focusing on this Copyright Week:

Monday: Copyright as a Tool of Censorship. Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.

You will not find a remotely-qualified copyright advocate who does not criticize the misuse of copyright to remove, or otherwise silence, material that is not properly the subject of copyright infringement.  Yes, people who don’t know what they’re doing abuse systems like the DMCA notice & takedown procedure in order remove material they should not.  The irony here is that the EFF is often responsible for the kind of copyright confusion that leads to a variety of mistakes online.  This is a classic example of the anti-copyright crowd’s “few bad apples” approach to public policy, advocating that the exception should change the rule.  Because here’s a pro-tip:  it is really hard to find a copyright-owning artist who is opposed to freedom of expression.

Tuesday: Device and Digital Ownership. As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it–meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.

Here, the EFF refers to Section 1201 of the DMCA and its non-circumvention protection of the copyrighted software that runs devices and machines.  What they tend not to mention is that this is a much more complex conversation that extends way beyond the realm of copyright.  For instance, “tinkering” with tractors and other machines has environmental and safety implications that are the purview of federal regulatory bodies that have little to no relationship with the U.S. Copyright Office.  

Sure, the products we buy belong to us, but that doesn’t mean we get to disable catalytic converters or safety features; and even where the right to “tinker” may seem reasonable, copyright may not be the legal barrier in play. Your beef could be with the DOT.  Relatedly, the EFF fails to mention that the Copyright Office has generally agreed with petitioners seeking to circumvent TPM for research and other types of fair uses.  On TPM and 1201, EFF is often guilty of committing lies of omission in order scapegoat copyright; and this includes failing to mention that, absent these provisions, popular means of consuming creative works on digital devices would not exist.

Wednesday: Public Domain and Creativity. Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture.

Granted, the word “excessive” is an opinion and not a false statement.  Though, as pointed out numerous times, including in yesterday’s post, nobody has yet demonstrated with empirical data that current terms are doing any harm to creativity.  To the contrary, creative activity—both amateur and professional—has grown since passage of the CTEA in 1998.  Still, in the body of the EFF post, it says the following:

“In an example of how large media and entertainment companies successfully make copyright laws for themselves, they prefer to have control of things long after the people who actually created them have passed away. They successfully lobbied to have the term of copyright extended, essentially keeping the public domain from growing for decades.”

THAT is a lie.  Yes, the big studios et al did favor the 20-year term extension of 1998, but it was not remotely a law they “made for themselves.”  This is a matter of record, and you can even can look it up using this thing called the internet.  The U.S. term extensions were solely a matter of America catching up with terms adopted, in some cases more than 100 years ago, by European and other trading nations. The EU added 20 years in 1993, so the U.S. did likewise five years later.  I know it’s boring because there’s no villain in that story, but that’s how it happened.

Thursday: Safe Harbors. Safe harbor protections allow online intermediaries to foster public discourse and creativity. Safe harbor status should be easy for intermediaries of all sizes to attain and maintain.

Apropos what I just said about the term extension, Section 512 of the DMCA was a copyright provision the online service providers “made for themselves,” and in the late 1990s, when AT&T, Verizon, et al sought this liability shield it was not an unreasonable request.  But during the two decades since that time, platforms like YouTube (speaking of corporate giants) have been at liberty to monetize the unequivocal and chronic infringement of copyrighted works solely because of the “safe harbor” provision.  And every attempt to correct that aberration of Section 512’s original intent has been met with hysteria by the EFF and others, declaring that the internet will break, free speech will die, and other tales of terror.  And, ironically enough, that brings us to EFF’s Friday bullet point …

Friday: Filters. Whether as a result of corporate pressure or regulation, overreliance on automated filters to patrol copyright infringement presents a danger to free expression on the Internet.

You know what’s funny about EFF’s (and others’) shuddering at the prospect of “filters” to identify copyright infringement?  It was exactly what the OSPs proposed in the 1990s as a counter-balance to the aforementioned safe harbors they were seeking!  I’ll take the liberty of paraphrasing, but they essentially said, We should not be responsible for our users’ infringements, and if granted this liability protection, we will work to develop technical measures to weed out and mitigate infringements.  That’s not just my opinion. As a direct result of the OSPs’ reference in this regard, Congress fully expected rightholders and service providers to collaborate to develop “standard technical measures.”

But now that we’re more than 20 years down the road, and the major internet platforms are insanely wealthy and powerful, the technical measures their OSP forebears proposed (and which were never implemented, by the way) are now deemed by EFF et al as a threat to the internet and free expression.  And not surprisingly, some of those chickens are lately coming home to roost, as we see the paragons of digital-age creativity—the YouTubers—discover that they don’t really like their work being ripped off either. And so YouTube responded how?  By implementing a new technical measure called Copyright Match.

If you’re looking for a competition of ideas on copyright, then read the various scholars who debate its core principles and mechanisms.  If you’re looking for basic facts, check the Copyright Office website.  And if you’re looking for PR messaging that misleads, confuses, and frightens the hell out of people for no reason, then by all means the EFF is the goto source for you. Because what they really hope one day to celebrate is Copyright Weak.  (Speaking of which, when is National Dad Joke Day?)

*From the motion picture My Cousin Vinny (1992).