Tag: SCOTUS

Parody on Trial: The Onion Submits Amicus Brief in Novak v. Parma

On October 3, the satirical news organization The Onion filed a delightfully irreverent amicus brief with the U.S. Supreme Court in support of the petitioner seeking cert in Novak v. City of Parma, Ohio, et al. Even if you have no interest in the case, the brief is a good time—a deftly written panegyric to the art and relevance of parody that interweaves actual parody with supported legal arguments. Under its Argument I – Parody Functions by Tricking People into Thinking it is Real, the section begins …

Tu stultus es. You are dumb. These three Latin words have been The Onion’s motto and guiding light since it was founded in 1988 as America’s Finest News Source, leading its writers toward the paper’s singular purpose of pointing out that its readers are deeply gullible people.

In the next paragraph, The Onion states that the first reason its motto is central to the brief is that it knows the “federal judiciary is staffed entirely by total Latin dorks.” So, it’s like that. Enjoy!

But the issues raised in this case are more complicated than The Onion’s colorful defense of parody and satire—if not with respect to plaintiff Novak’s conduct itself, then with regard to broader questions, both social and legal, on the subjects of humor and gullible people.

Background: Novak Mocks the Parma Police Department on Facebook

In March of 2016, Anthony Novak created a bogus Facebook page designed to resemble (though not precisely match) the page for the City of Parma Police Department. He then published a handful of outlandish posts that any reasonable person should recognize as satire. For instance, one post announced a “Pedophile reform event” with “puzzles and quizzes” stating that upon successful completion of the day’s activities, participants would be removed from the sex offenders list.

The police department naturally received a few phone calls from Parma citizens, and after officers investigated, Novak was arrested, tried, and ultimately acquitted on charges that he had violated an Ohio state law prohibiting the use of a computer to “interrupt” or “disrupt” police operations. According to the petition for cert at the Supreme Court, the fake Facebook page was online for twelve hours and a total of six posts were published.

After Novak’s acquittal on the criminal charges, he filed a civil suit against the arresting officers, the department, and the city, alleging that the investigation and arrest had been retaliatory in nature and violations of his First and Fourth Amendment rights on the basis that the enforcement actions stemmed solely from his protected right to mock public officials. A district court held, and the Sixth Circuit Court of Appeals affirmed, that Novak’s complaints failed to meet the standards to show the officers’ intent to cause harm and that, within the four corners of the law, the officers did not abrogate their qualified immunity from suit. In its conclusion, however, the appellate court stated …

But granting the officers qualified immunity does not mean their actions were justified or should be condoned. Indeed, it is cases like these when government officials have a particular obligation to act reasonably. Was Novak’s Facebook page worth a criminal prosecution, two appeals, and countless hours of Novak’s and the government’s time? We have our doubts. And from the beginning, any one of the officials involved could have allowed “the entire story to turn out differently,” simply by saying “No.” Bari Weiss, Some Thoughts About Courage, Common Sense (Oct. 19, 2021). Unfortunately, no one did.

Indeed. Even if Novak caused some limited “disruption” to the department (e.g., fielding calls from complaining or confused citizens), it should have been obvious that the content of the Facebook page was intended as satire rather than intended to “interrupt” police operations in the spirit of the broadly written state law. That all the fuss was over six posts online for twelve hours is an even stronger indictment against the officials’ decisions leading to prosecution, which justifies a fair assumption that arrest was both retaliatory and unconstitutional. The questions Novak presents to the Court are as follows:

  1. Whether an officer is entitled to qualified immunity for arresting an individual based solely on speech parodying the government, so long as no case has previously held the particular speech is protected.
  2. Whether the Court should reconsider the doctrine of qualified immunity.

The Sixth Circuit reasonably, if reluctantly, found that Novak did not prove that the officers investigated him solely on the basis of his protected speech. Instead, it held that the officers presented sufficient (if thin) probable cause to indicate that he had violated the state “disruption” law, and two magistrate judges granted warrants, and a DA independently proceeded with an indictment. So, SCOTUS may not agree that Novak’s case is ripe for the qualified immunity and speech questions presented. On the other hand, the petition describes a relevant circuit split thus:

The Sixth, Eighth, and Eleventh Circuits grant officials qualified immunity for First Amendment violations disguised as searches and seizures justified by probable cause under broadly written laws. In those circuits, censorship-by-arrest prevails. Three other circuits prioritize speech over immunity. The Fifth, Ninth, and Tenth Circuits look beyond pretext and deny qualified immunity to officials who should have known that their actions violated the First Amendment.

While we wait to see whether the Court will agree to hear this case, the serious intent behind The Onion’s hilarious brief raises some complicated questions if we look beyond Novak’s short career as a parodist in this instance.

Reasonable People

The Onion makes the broad argument that “reasonable people” do not need warning labels to identify parody—that indeed parody depends on impersonating the serious or the real. “Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity,” the brief states. It would, therefore, be anathema for persons in power, like police, to require some kind of notice in order to distinguish protected parody from illegal impersonation—let alone impersonation with intent to cause harm.

The Onion is, of course, right about parody as an expressive form, but the question of impersonation has become complicated in an era when mass media tools are available to anyone—to say nothing of what it currently means to be a “reasonable reader” of mass media. The Sixth Circuit, for instance, affirms that impersonating police is not protected speech “for good reason” and further notes by example the “mayhem that a scam IRS or State Department website could cause.”

In a different but related context, it would be a travesty if Alex Jones could successfully argue that InfoWars is all “opinion and hyperbole”[1] and that he is, therefore, immunized against recourse for the wanton harm he and his fans have caused the victims of the Sandy Hook murders. Not all potentially criminal speech can be made lawful by arguing some variation of the “just kidding” defense; and in the digital age, a “prankster” does not need a plurality of idiots to do a great deal of damage.

So, although I agree with The Onion that most people probably know parody when they see it, we must acknowledge that unreasonable readers abound and are living a post-parody existence that is barely literate. Content that might be assumed parody in another era turns out to be prophesy to many contemporary Americans. How is Alex Jones anything other than a joke? Ditto Pizzagate, QAnon, Mike (the pillow guy) Lindell, Steve Bannon, Marjorie Greene, the stolen election narrative, FOX News, Donald Trump, or the sincere and persistent belief that children are being harvested by Hollywood stars to make adrenochrome?

So, it is not easy to fully endorse The Onion’s premise that people have a solid grasp of the ridiculous, or that the ridiculous is easily discernable from the truth these days. Novak’s phony Facebook page, though minor and fleeting, reminds us how muddy the distinction is between lampoon and headline news. A “Pedophile reform event” may be obviously sardonic to most readers, but in a world where real people would force a child rape victim to remain pregnant, there is arguably nothing so wild the parodist can invent that does not require confirmation against fact.

So, although the officials involved in Novak’s case did not exercise common sense (as the Sixth Circuit states), the lines separating parody of public figures, outlandish lies about public figures, and the actual conduct of public figures are exhaustingly blurry—especially when the tools to spoof the real thing are available to anyone with a computer and a motive to cause mischief. Near the conclusion of The Onion’s brief, it states:

… grafting onto the reasonable-reader test a requirement that parodists explicitly disclaim their own pretense to reality is a disservice to the American public. It assumes that ordinary readers are less sophisticated and more humorless than they actually are.

It would indeed be folly to require the parodist to “disclaim his own pretense,” but it is not quite true that we can rely solely on our sophistication and sense of humor. When a friend on social media shares a real story about something balls-out crazy, don’t they often label it, “Not from The Onion.”? In fact, The Onion’s generic status in this regard partly betrays its argument about disclaimers because its brand is a flag telling readers that parody and satire are present.

It is hardly original to say that we are awash in so much conspiracy theory and crime against reason that it is often hard to imagine how the writers at The Onion hope to compete. The day Kellyanne Conway said the words “alternative facts” with a straight face on national television, many of us expected satirists everywhere to throw their pens, if not themselves, out the window. And that story was a mere party trick compared to the astonishing self-parodying events that have transpired since. So, with a deep bow to the craftsmanship in The Onion’s amicus brief, I think it is fair to say that even reasonable, comedy-literate people can be forgiven these days for wanting some assurance that what they are reading is indeed a joke.

[1] I chose these words because one of FOX News’s defense in its litigation with Dominion is that the lies it reported about corrupted voting machines are “hyperbole and opinion.”

Google v. Oracle XI: Going In Circles at Oral Arguments

On October 7, the Supreme Court finally heard oral arguments in the decade-long copyright software slugfest Google v. Oracle. Thomas Goldstein represented Google, Joshua Rosenkranz represented Oracle, and Deputy Solicitor General Malcom Stewart represented the United States as amicus curiae in support of Oracle. The major arguments discussed were the following: 

  1. whether the Java declaring code Google copied into the Android OS is unprotectable under the limitation in copyright called the merger doctrine;
  2. whether the Federal Circuit applied the correct standard when it reviewed the case de novo and overturned a fair use finding by a jury; and
  3. whether Google’s use was a fair use, particularly whether it was transformative; and
  4. whether the Court’s decision for either party would risk upending the American software industry.

While it is folly—let me underscore, folly—to make predictions based on the questions justices ask during oral arguments, I will presume to make a few comments and some soft predictions. First, I believe the Court will have a hard time accepting Google’s merger argument and may even find unanimously for Oracle on that question.

Second, the Court may remand to the Court of Appeals on the standard of review question, but if so, it will have to address the question raised about what effect a decision could have on the practice to resolve fair use issues on summary judgment. Alternatively, the Court may hold that the Federal Circuit did not err with regard to civil procedure and will then comment solely on the appeals court’s holding that, as a matter of law, Google’s use was not a fair use.

Third, with regard to the fair use defense itself, the Court did not devote much attention to the question of transformativeness, upon which Google’s claim rests. So, good luck reading those tea leaves. And, fourth, by contrast, the justices did direct more questions toward Google’s claim that a finding for Oracle would cause “the sky to fall” upon the software industry. And while that claim may—may—concern the Court, readers should not confuse this argument with the fourth fair use factor, which asks whether market harm is done, or will be done, to a plaintiff in a case, not whether a finding against fair use conflicts with widespread to market practices overall.

Part of what makes this case historic is that Google, the darling of the contemporary tech world, has effectively asked the Court to upend copyright law in order to (allegedly) avoid upending the software industry. If that is a fair summary, then the Court’s path should be clear. If the legal arguments presented by Google are untenable and might, therefore, weaken copyright for every author under in its protection, the Court cannot accept Google’s claims on the merits. Further, Google’s broad appeal to avoid industry disruption (unless of course Google is doing the disrupting) is at odds with its own claim that the works it copied are not copyrightable.  

Copyrightability & the Merger Argument

On the matter of copyrightability of the Java declaring code, Google conceded to Justice Gorsuch that it would focus its argument on the merger doctrine, pulling back from its earlier arguments that the declaring code constitutes an unprotectable “method of operation” under the statute. The merger doctrine denies copyright protection to works when there is only one way, or very few ways, to express an idea. In such instances, the expression and the idea (or in computer code, the function) are said to be merged.

As addressed in this post, one disconcerting aspect of Google’s appeal to merger is that it is based on its claim that it “had to” copy the Java code at issue. That need, however, appears to be a business decision to attract Java programmers to develop apps for Android, rather than a genuine limit of coding options available at the time the copying occurred. 

As such there is no distinction between Google’s merger argument and the claim that someone “had to” copy any other protected work. A different creator might argue that he “has to” copy a lot of Star Wars material in order to make a new work that appeals to Star Wars fans, but this business goal (need) does not void the protection of the works he wants to use. This is as basic as copyright gets.

The justices homed in on this aspect of Google’s appeal to merger, using the word circular more than once to probe Mr. Goldstein on the question; and several justices voiced their concern that if merger is misapplied upon the condition of a use, rather than as a limitation at the moment of authorship, the result is tantamount to penalizing a work for its own success. This is another potentially hazardous aspect of Google’s merger argument for all creators:  it implies that once a work is highly popular, it is practically, if not entirely, in the public domain. Though many copyright critics would love to go there, the Court knows this is not the law.

Having said that, several of the justices, most notably Justice Breyer, did challenge Mr. Rosenkranz with what Terrica Carrington at Copyright Alliance calls some “less-than-stellar” analogies. Justice Breyer referred a few times to the QWERTY keyboard as a comparison to the Java declaring code, Justice Roberts referred to the standard arrangement of a restaurant menu, and Justice Kagan described a hypothetically ingenious way to arrange products in a grocery store.  

Of course, none of these examples is properly a subject of copyright because none entails a modicum of creative expression fixed in a tangible medium. Even if we imagine viewing each of these arrangements of non-protectable elements—the alphabet, restaurant dishes, or grocery items—for the very first time, it would be very hard to identify creative expression that transcends mere utility. By contrast, Google has already conceded that the code at issue is expressive, and this is supported by expert amici, who tell us that there can be tremendous creativity in the kind of code Google copied. Perhaps the justices here reflect what I mentioned in an earlier post—that analogies can be very hard to draw to computer code because code is illegible to most humans and inherently functional, neither of which is true of other works protected by copyright.

But just because the Court raised imperfect analogies attempting to divine the nature of code, this does not mean that Google’s merger claim gained much purchase on the bench. Once we separate all the rough analogies, the Court is still left with one question:  whether Google could have chosen to author its own declaring code and sequence, structure, and organization to achieve its purpose of developing a popular mobile OS. And the answer to that is yes.

Indeed, the availability of alternative expression is the focus of the merger inquiry in the 1979 report to Congress written by the National Commission on New Technological Uses of Copyrighted Works (CONTU), which established the conceptual foundations for copyright protection over computer code. As a result, if Google could have written its own expression to achieve the same result, the Copyright Act provides that the Java declaring code is not merged. In the brief submitted by Professor Arthur Miller, former member of CONTU, he writes:

“CONTU described how it envisioned the ‘idea-expression identity’ exception’ would operate in the software context:  when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to an infringement.’ But ‘[w]hen other language is available, programmers are free to read copyrighted programs and use the ideas embodied in them in preparing their own works.’ In so saying, CONTU found that ‘[t]he availability of alternative noninfringing language is the rule rather than the exception.”

Google appeals to a different authority: the purportedly established practice of the tech industry to freely copy APIs.  Google’s broad claim that “everyone in the software industry knows APIs are not protected” attempts to serve both as evidence to support its merger argument and as an implied warning to the Court that a finding in favor of Oracle will overturn decades of tech industry practice and, therefore, stifle innovation. But the “everyone knows” argument contains a few significant flaws.

First, as Mr. Rosenkranz stated, many other commercial users have paid to license Java, including licensing only the declaring code. This practice belies the allegation that “everyone knows” these works are not protectable. In fact, prior to the time Google copied the Java declaring code, it had been negotiating a license with Oracle and only chose to reject that agreement because of Java’s interoperability requirements—not because the works at issue were so obviously not subject to protection.

Next, and perhaps most importantly, Google’s “everybody knows” argument is circular reasoning with respect to the merger argument. Justice Thomas correctly asked whether merger applies at the moment of authorship or at the moment of an alleged infringement, and Mr. Goldstein answered that it is the latter. But aside from the fact that this is not the correct standard under §102(b), Google is deceptively asking the Court to hold that merger applies in both instances. Or perhaps more pointedly, Google wants merger to apply at the time that is most convenient to the alleged infringer.

Because if indeed “everybody knows” that API packages have never been copyrightable, then Google is asserting that merger applied the day Sun authored the code in 1995. Either Google is saying that the universal practice of “reimplementation” does not date back to the 1990s, or it is playing shell game with the merger doctrine. Hence, the reason the merger claim sounds circular is because it is. It is an argument of convenience, not law.

It Will Probably Come Down to Fair Use, But…

The justices did not focus a lot of attention on Google’s fair use defense itself, instead emphasizing whether the Federal Circuit applied the correct standard of review to the 2016 jury verdict. As discussed at length in this post, the simple explanation is that the Federal Circuit applied the correct standard of review if it assumed the facts weighed in favor of Google but that the jury below made errors of law in the fair use analysis.

Whether the Court will remand for another review is difficult to predict, especially given that it involves esoteric questions of civil procedure. However, the discussion about the standard of review did raise an interesting topic as to the potential effect on summary judgment practice. And because summary judgment is where most fair use defenses live or die, this seems like a topic worthy of its own post.

If the Court does remand, this will likely imply a finding that Oracle’s code is copyrightable and not merged. Otherwise, a fair use analysis is an absurdity because one cannot make a fair use of a work unprotected by copyright. But if I had to guess, I think this monster of a case probably will come down to the fair use question because the Court appeared to be unable to find a hook under statute or caselaw that the code at issue is subject to merger. If that’s the way it breaks, many will say “the Court just doesn’t understand the coding world.” Or, as Mr. Goldstein put it…

“Why would Congress want a rule that says: ‘okay, these developers are extremely familiar with these commands. They’re used to write creative computer programs. Let’s just make it as inefficient as possible for them? The only upshot of Oracle’s rule that it wants you to adopt is to make computer programming incredibly inefficient so that we have fewer creative computer programs.”

But stepping away from the nuanced legal questions for a moment, a reasonable prediction on the industry effect of this case militates against Google’s allegations and its all-too familiar attempt to stand in the shoes of small and independent producers. Google is the 900lb gorilla in just about any dispute, and there is at least as much risk (if not more) that a finding on its behalf will lead to the simplest result that when the biggest kid in the sandbox wants to take something, he will. Imagine the software developer who does not have Oracle’s resources trying to survive just to the appellate phase of this epic battle. More likely, they would tap out early and settle, but how would this outcome serve innovation better than the opposite scenario in which even the biggest gorillas are required to license protected works?

As such, the broadest market-based considerations return us to the same bugaboo:  the fact that hundreds of other commercial users licensed Java code and, presumably, added their contributions to the world of computing. So, if Google ultimately gets a pass just because it is big enough to infringe as-needed and litigate indefinitely, that hardly seems like justice or the best possible outcome for future creators.

Georgia v. Public Resource: Much Ado About Very Little

I was on the fence with regard to commenting on Georgia v. Public Resource. Its details are arcane, rather dull, and, despite rising to the level of a Supreme Court decision, is generally inapplicable to copyright law. In essence, the Court succeeded in commenting on a matter of contract law because the upshot of this will be that States seeking to hold copyrights in the kind of works at issue in this case will simply amend their relationships with the private third parties that produce such works. I think my biggest resistance to this story was summarizing the facts because holy moly are they boring! So, here they are, cut and pasted from the SCOTUS Syllabus:

The Official Code of Georgia Annotated (OCGA) includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations. The annotations typically include summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials.  The annotations were produced by Matthew Bender & Co., Inc. a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Code Revision Commission, a state entity composed mostly of legislators.  

Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records, posted the OCGA online and distributed copies to various organizations and Georgia officials. The Commission sued for copyright infringement; PRO argued that the entire OCGA, including the annotations, fell in the public domain. The District Court held that the annotations were eligible for copyright protection. The Eleventh Circuit reversed.

So, to clear up one possible confusion about this case, what was NOT at issue, despite some murmuring you may get from the blogosphere, was any question that the law can be copyrighted. It cannot. That question was generally settled in the very first copyright case considered by the United States Supreme Court in 1834 known as Wheaton v. Peters. At issue here were those annotations, the descriptive summaries of either case law or statutes; and there is no controversy as to whether annotations in general can be the subject of copyright. They can. So, what was the big whoop in Georgia v. Public Resource?

The not-so-big whoop came down to the majority’s opinion, written by Justice Roberts, about the relationship between Georgia’s Code Revision Commission and the private party, Matthew Bender, hired to produce the annotations. “Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.”

What that boils down to is that because Lexis was contracted under a Work Made For Hire (WMFH) agreement, the Commission is the “author,” and is, therefore, barred by this decision from owning copyright on the grounds that the Commission is acting in its official capacity as an extension of the state legislature. At least that’s what the majority held, albeit after a longwinded tour through the nineteenth century meaning of “author” that I frankly cannot be bothered to summarize here because it hardly matters.

Suffice to say the Georgia decision changes nothing in the longstanding doctrine that works written by judges and legislators, as part of their official duties, may not be copyrighted. But if you read the mercifully crisp dissent written by Justice Ginsburg, joined by Justice Breyer, the distinctions she describes about annotations makes one thing abundantly clear—they are optional. “Annotations aid the legal researcher, and that aid is enhanced when annotations are printed beneath or alongside the relevant statutory text,” Justice Ginsburg writes. “But the placement of annotations in the OCGA does not alter their auxiliary, nonlegislative character.”

States have to make their statutes and court opinions freely available to the public, but they are not obligated to hire a company like Matthew Bender to create annotations that serve as a convenience to the reader. Somebody has to get paid to do the annotating work, and the State’s copyright in the OCGA was just one way to skin that particular cat.

One possible outcome of this decision could be that some states get out of the “official” annotation business, leaving a company like Lexis to still do the work but also own the copyrights. Or the states could simply restructure the way they work with third parties, like dropping the approval process and/or revising the contracts. Or they could just stop producing annotations altogether. So, all in all, much ado about nothing for the Supreme Court, but perhaps a nice respite from larger storms brewing.

Still, Mike Masnick at Techdirt seemed to feel there was a lot to say about this case, presumably because he does present it in his post as a matter in which the state was “locking up its laws under copyright.” That would be a big deal if it were true, but the error explains why Masnick characterizes Justice Ginsburg’s dissent as exemplary of what he calls her “copyright maximalism.” I still maintain, as I wrote years ago, that I have no idea what a copyright maximalist is, but if RBG is one, sign me up. Because just maybe there is a correlation between Justice Ginsburg’s notorious support for authors’ rights and her no-bullshit distillation of this nothing of a case.