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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.

DMCA HEARING IV – Contemplating Fair Use

With the first three DMCA review hearings before the Senate Subcommittee on IP, it was fairly easy to identify the salient matters most likely to survive beyond this inquiry period and become part of the substantive debate on possible legislative revision. For instance, the need to more clearly define constructive, or “red flag,” knowledge in Section 512 is a recurring theme, at least from the rightsholders, and it is a problem that is at least conceivable as a legislative fix.

But in regard to the most recent hearing, held on July 28, it is little tougher to make an educated guess as to what may come of it. And this is partly because the topic itself is a tricky one that inevitably spills over into matters not directly pertinent to the DMCA. The title of the panel is How does the DMCA contemplate limitations and exceptions like fair use? And although Professor Jane C. Ginsburg of Columbia Law School answered that question about as directly as one could—outlining the ways in which Section 512 “accommodates” fair use, and discussing the efficacy of same—my general takeaway from hearing overall was that it seems pretty difficult for any legislative fix to alleviate the tension between DMCA and fair use.

Keep in mind that the DMCA was a deal hammered out by very large, corporate interests. The online service providers (OSPs) at that time, mostly major telecoms, wanted immunity from civil suit for the copyright infringements users would inevitably commit. The notice-and-takedown provision of 512 was the compromise solution for rightsholders to remove those infringements, and the counter-notice provision was created in order to restore material taken down in error.

While it would be wrong, without supporting evidence, to assert that Congress never contemplated nuanced, “close calls” like fair uses in 1998, it is generally undisputed by all parties that Congress did not fully anticipate the scale and speed at which copyrighted works would be uploaded to online platforms over the past 22 years. Let alone uploaded repeatedly by multiple users, or the monetary value of all that infringing activity to a major platform owner. Consequently, it seems reasonable to conclude that Congress likewise could not quite have imagined a digital landscape in which tens of thousands, if not millions, of individual rightsholders and users would be expected to become literate in the fair use doctrine.

Whether this also means that Congress expected that there would more often be fact-based incidences of error in takedown notices (e.g. wrong party, wrong material, non-copyright complaints, etc.), we cannot say for certain, but these are the type of error that require no education in fair use, or any other subjective legal doctrine, in order to file a valid counter notice. Although 512 may not have been written with individual, lay users in mind, it is certainly the case that independent creators and users of works have long been left to fend for themselves, filing their own notices or counter-notices, and trying to understand fair use—a body of judge-made law about which judges disagree with some frequency.

Fair use, as I will soon discuss in greater detail with regard to Google v. Oracle, is a consideration of both fact and law, and if its principles can be slippery for courts and attorneys to hold onto, it can certainly be tricky for the average rightsholder or user. Meanwhile, amid the general chatter on this subject, OSPs, digital rights groups, and users tend to complain that fair uses are removed all the time, while rightsholders complain that users make erroneous fair use claims all the time. And without question, both groups are correct at least some of the time. Neither independent rightsholders nor users—and certainly no parties acting in bad faith—can be counted on to be “right” about fair use all of the time, least of all through the constrained mechanisms of the notice/counter-notice provisions of the DMCA.

Because the committee asked a difficult question, it was not surprising that the witnesses covered a lot familiar ground that, while important, is either not specific to fair use or not specific to the DMCA. For instance, lead counsel for the National Press Photographers Association, Mickey Osterricher, described various ways in which the “whack-a-mole” problem does almost immediate and lasting harm to the value of news photography and video. This is an archetypal failure of the DMCA’s takedown provision to protect individual authors, and while it is not directly connected the inquiry into the contemplation of fair use, it is a problem often exacerbated when users make overbroad or erroneous assertions of fair use in their counter notices.

For instance, Osterricher’s reference to the devaluation of photojournalism, through unlicensed copying and distribution online, is related to a fair use question that was raised in the hearing about the use of works by political campaigns or advocacy organizations. Although attorney Matthew Sanderson, in his testimony, referred to these examples as “paradigmatic fair uses,” that may be a bit overstated. If the owner of a photo sends a takedown notice targeting a campaign video that contains her image, this could be a wrongful takedown targeting the candidate rather than a copyright infringement, but it is more likely to be a proper takedown targeting an infringement, independent of the author’s feelings about the candidate. Or, if the work being used is strongly associated with its creator(s) identities, like a famous song, there is the added dimension of coerced speech, which is potentially more serious than copyright infringement alone.

All of that is by way of saying that a review of DMCA’s mechanisms cannot easily hope to reconcile a lot of complex (often fraught) fair use questions, which will always be a case-by-case consideration. In the meantime, though, GRAMMY-winning, gospel singer/songwriter Yolanda Adams, in her testimony, did offer an old-fashioned, low-tech solution to many of the conflicts that arise between artists and political groups:  ask permission. “Musicians run the spectrum of political views,” she says. “If candidates want to use music in their campaigns, work with us – the artists and songwriters – to find the right match.” This is solid advice that users other than political operatives should strongly consider.

In fact, the low-tech (i.e. human) solution would probably alleviate a lot of the tension that exists between rightsholders and users, and perhaps loosen some of the tension between the DMCA and fair use. If I had to guess, I would say that rightsholders have two major problems when it comes to this part of the discussion. They suffer most acutely when professional users—be they political campaigns or ice cream companies—make use of works without license; and they suffer broadly when the major internet companies, through their advocacy networks, promote an expansive rhetoric about the fair use doctrine, resulting in even well-intended users making erroneous fair use assumptions. This also happens to get users needlessly sued, by the way.

If we return to Osterricher’s advocacy of visual journalists, appropriations of these works will invariably comprise at least some users—both professional and non-professional—who assume that because they are engaged in helping to disseminate “news,” their uses of unlicensed images are naturally fair uses. Many different types of users chronically fail to recognize that those exemplary terms named in Section 107 of the law (e.g. “news reporting, teaching, parody”) are all subject to conditions and considerations that further refine the terms within the intent of fair use.

At what is arguably the opposite end of the spectrum, it was easy to be sympathetic to musician Rick Beato’s testimony when he described his music education videos on YouTube. For instance, he mentions performing ten seconds of a Beatles song in order to teach viewers how the piece is constructed, and he cites this as a typical example of a video that may be targeted by a large rightsholder using automated systems to identify unlicensed uses of their musical works.

Beato’s description strikes me as fitting well within the spirit of fair use, if not the application of the exception to date. Historically, a fair use for teaching applies to physical classroom settings. But as recent events have underlined, we may need to broaden our definition of “classroom” to the virtual learning environment, and it does seem plausible that fair use could embrace the kind of teaching Beato does on his YouTube channel.

Having said that, though, once we expand the “learning environment” to the internet, we likewise expand the aforementioned confusion that already exists among even well-intended users of works. The word teaching will be defined too broadly in the mind of many users. In 2015, I wrote about a friend who made this very mistake, presuming a fair use of some photographs because she thought of her blog as “educational.”

It seems to me that there may be solutions to the Beato example that could exist parallel to the DMCA. For instance, a registry of channels that intend to consistently use works in a fair use manner so that the major rightsholders can whitelist these channels? And this would not prevent auditing the channels for compliance. The copyright critics may gasp, of course. A user should not have to seek permission for fair uses! In principle, that’s true, but in reality, for every channel like Rick Beato’s, there are thousands of YouTubers who are merely infringing, full stop. And we need Google-scale solutions for Google-scale problems.  

Relatedly, Professor Ginsburg endorsed, or at least alluded to, the possibility of an alternative dispute resolution function within the mechanisms of 512, designed solely to resolve fair use questions. This echoes the USCO in its report on Section 512, published this May, though is not clear whether an ADR provision specific to DMCA would be seen as redundant to the provisions of the CASE Act, if it is ever passes.

Regardless of the CASE question, it seems that Ginsburg and others are looking for solutions to address the conflict inherent to the time period after a counter-notice has been filed to restore allegedly infringing material. At that point the rightsholder must either prove he is taking legal action against the respondent, or the material will be restored within 10-14 days. “That is a tight deadline for rightholders, but potentially a devastatingly long one for fair users,” Ginsburg stated.

So, it is understandable why one might wish for an ADR mechanism to at least provide guidance on the probability that a use is either a fair use or not as a step prior to issuing a takedown. How exactly one harmonizes this persnickety area of U.S. law with global platforms is a question I cannot answer, though again, Ginsburg recommended that Congress monitor the efficacy of newly-passed provisions in the EU, where some of the largest platforms will be required to preclear rights before hosting user-generated works. Although labeled the “censorship machine” by European critics, the provision, Article 17 of the Single Market Directive, passed into law in 2019, but not yet into practice. And the likes of Google are far from done fighting compliance. So, we’ll see what happens there.

In case you can’t tell, I’m pretty skeptical that there is much Congress can do to better harmonize fair use and the DMCA, though I do believe there is much that can be done to both tweak the mechanisms in DMCA and mitigate bewilderment about fair use, and this may result in better balancing the two. Above all, the major platforms that have reaped billions in ad dollars while hosting infringing material, as it ebbs and flows across their platforms, have often camouflaged their pecuniary interests by claiming to defend fair uses on behalf of their users. 

But fair use cannot be so easily generalized. And if a platform like YouTube cannot, under the terms of the DMCA, be held responsible for monitoring its site for infringements, how can it possibly quantify the number of fair uses on the same platform? Hence, it seems that fixing the gaps in 512 where platforms have managed to slip through congressional intent to impose some burden (like constructive knowledge) may have the added benefit that these same companies will devote less energy toward expanding the fair use doctrine until it swallows copyright entirely.

Thank You, Christopher Dickey

Interview with Christopher Dickey. August 29, 2012.

Yesterday, the world lost one of the great journalists, and great human beings, who have shaped our thinking in the last half century. American correspondent Christopher Dickey died in Paris at the age of 68. I will not attempt to eulogize, or even summarize his contributions to reportage and literature. There are dozens, or more likely hundreds, far better suited to that task, and who will doubtless attend to it. For starters, his colleague Barbie Latza Nadeau, wrote a beautiful tribute for The Daily Beast.

But because Chris was an old family friend, and because he was so gracious, he was kind enough to be the subject of the first podcast interview for this blog when it launched in 2012. We talked for over an hour about journalism and security in the digital age, and he is such a polymath that it was no easy job deciding what to cut for the roughly 30-minute conversation that was ultimately published. I listened to the interview again this morning, and, unsurprisingly, Chris’s insight remains instructive, even in a world that has changed so dramatically in eight years. I wish I could ask him new questions, but that only puts me in a very, very long line. I will always be grateful to Chris for this kindness, and others, and wanted to re-post the interview today upon learning this sad news. My sincere condolences to his family and to so many who knew and loved him.

Archery photo source by: daseaford