As Matt Schruers indicated in a DisCo post earlier this week, copyright holder representatives have filed amicus briefs in support of Oracle’s appeal of the fair use determination in the ongoing copyright infringement litigation between Oracle and Google. These briefs argued that the district court and the jury erred by applying fair use principles over-broadly. Nonetheless, several of the briefs correctly acknowledged the importance of the fair use right to free expression, creativity, and the proper operation of the copyright system.
The high profile IP dispute over Google’s reimplementation of the Oracle-owned Java API in Android software is headed back to a federal appeals court after a jury handed a unanimous loss to Oracle last summer. So what’s the issue this time?
Our Story Until Now
A quick refresher: the case began following Oracle’s 2010 acquisition of Sun, which held the copyrights to Java. Oracle sued Google on various IP claims later that year. The basis for the suit was that in developing Android, Google had created its own version of the programming language called Java, a toolset that programmers use to write code. In order to enable other developers to program on Android, Google employed the same names, organization, and functionality in Android as is used in the Java API (“application programming interface”) — the protocols by which software programs communicate.
In June 2012, following a jury trial, Judge William Alsup in the Northern District of California ruled that the Java API “packages” copied by Google were not copyrightable. According to Alsup’s holding, Android may have “replicated the overall name organization and functionality of 37 [out of 166] packages in the Java API.” However, these protocols — themselves only 3% of the 37 packages — did not qualify as copyrightable since to extend that protection would provide control over “all possible implementations of the taxonomy-like command structure” used by programmers to write code. (Fun fact: Judge Alsup taught himself Java for purposes of hearing the case.). MORE »
Many observers, including me, predicted that the 2014 decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Oracle America v. Google would provoke a new wave of litigation concerning copyright and interoperability. In particular, we worried that the decision would encourage dominant vendors to bring copyright claims against competitors that replicated interface specifications for the purpose of interoperating with the dominant vendors’ products. We were right.
Sure enough, Oracle America has factored into at least four cases so far. One of these cases settled, one is on appeal, and the other two likely will be appealed in the near future. The latter two cases also involve patent claims, so appeals will be heard by the CAFC. (The CAFC has nearly exclusive appellate jurisdiction over cases with patent claims.) One can assume that the plaintiffs added the patent claims to ensure CAFC jurisdiction.
GDC v. Dolby Laboratories
This is the case that settled. Dolby Laboratories provides advanced motion picture theatre sound systems. GDC Technology develops software and hardware that interoperates with the Dolby systems. Dolby facilitated this interoperability by making its interface specifications available to GDC. It appears that Dolby stopped providing this information after it acquired Doremi, a media server manufacturer. Evidently, this acquisition made GDC a more direct competitor. Emboldened by the CAFC’s Oracle America decision, Dolby demanded that GDC stop using Dolby interface specifications to interoperate with Dolby products. Furthermore, Dolby insisted that GDC cease telling customers that GDC had the right to use this interfaces information to interoperate with Dolby products.MORE »
Earlier this week, I discussed how the Copyright Office’s report on Software-Enabled Consumer Products did not adequately address the adverse impact of software licenses on noninfringing conduct. However, I commended the report’s discussion of interoperability. This post examines the report’s treatment of copyright and interoperability in more detail.
The report considered “whether the copyright law furthers or hinders development of interoperable products and services and competition in the arena of software-enabled products.” (The Copyright Office viewed software-enabled consumer products as consumer-grade devices in which software is embedded, such as kitchen appliances, cars, and wireless phones.) The Copyright Office stated that it “recognizes the importance of preserving the ability to develop products and services that can interoperate with the goal of preserving competition in the marketplace.” It concluded that existing law, properly applied, preserves the twin principles of interoperability and competition.
The U.S. Copyright Office’s report on the role of copyright in the development and use of software-enabled consumer products, released last week, represents a missed opportunity to start an important discussion about the constraints software licenses can place on otherwise lawful activities. While the report acknowledges the existence of these constraints, it concludes that resolving the problems they may cause is beyond the scope of the report. (The Copyright Office views software-enabled consumer products as consumer-grade devices in which software is embedded, such as kitchen appliances, cars, and wireless phones.)
The report examines the impact of copyright law on four core activities relating to software-enabled consumer products, including resale, repair, security research, and interoperability. In each case, the report ultimately concludes that “faithful application of existing copyright law doctrines should provide no barrier to legitimate uses.” To reach this conclusion, however, the report minimizes or avoids the adverse impact of software license terms prohibiting these activities.
The Finnish Foundation for Cultural Policy Research (Cupore), at the request of the Finnish Ministry of Education and Culture, has developed a methodology for assessing the operation of copyright and related rights systems. While the methodology on its own will not provide policymakers with a tool to make specific copyright policy choices (e.g., whether to adopt a particular exception), it does tell policymakers what questions they should be asking and what factors they should be considering. Moreover, the methodology recognizes the importance of balancing the interests of diverse stakeholders in order to achieve the goals of the copyright system. As such, it is an extremely useful contribution to the copyright policy field.
The methodology is likely to gain traction at the World Intellectual Property Organization not only because of its subtlety and sophistication, but also because of its chief sponsor, Jukka Liedes, the former Director of the Finnish Ministry of Education and Culture. Liedes was chairman of the WIPO Standing Committee on Copyright and Related Rights for many years, and helped develop the methodology WIPO adopted for assessing the contribution of copyright industries to national economies.
The main purpose of the methodology is to support national governments when they are designing new measures for improving the operation of the copyright system. The handbook describing the methodology states that it is designed to help “build a profound understanding of the copyright system, its different elements and different aspects of its operation, therefore serving as a tool in the formulation of copyright policies and strategies.” (p. 12)
The handbook recognizes the methodology’s limitations. It provides “an understanding of the current state of a copyright system,” but “it does not focus on the possible future impacts of policy proposals.” (p. 39) Accordingly, the methodology would need to be complemented by impact assessment studies when changes in the law are contemplated.
Further, with respect to the indicators the methodology highlights, the handbook acknowledges that it “can be challenging to distinguish the effects of the copyright system from those of other forces influencing the markets. In many cases, in-depth analysis is needed to understand the potentially complex causal chains.” (p. 40) Although the handbook concedes that the methodology has “many descriptive elements,” it urges that the methodology be used to discover “the effects of the system’s operation on different stakeholders.” (Id.)
At a conference last week sponsored by Columbia Law School’s Kernochan Center for Law, Media, and the Arts, a panel I participated in considered an unexpected prospect: the copyright fair use doctrine as a mechanism for creating more certainty in international copyright law.
Balanced copyright proponents have long supported the “export” of fair use through trade agreements. If the United States was encouraging trading partners to adopt U.S. IP standards, those standards should include not only the higher protections provided by U.S. law (e.g., copyright term of life plus 70 and prohibitions on circumvention), but also our robust exceptions and limitations, such as fair use.
This advocacy contributed to the inclusion of Article 18.66 in the IP chapter of the Trans-Pacific Partnership Agreement. Article 18.66 provides that “each party shall endeavor to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions…, including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” (See here for a detailed discussion of the development of this Article.)
Fair use, has its critics, however, including major content owners — notwithstanding their reliance on it as a defense when sued for copyright infringement in the United States. A common argument against fair use is that its flexibility produces too much uncertainty and encourages judges to run amok.
Yet a panel I participated in on “Fair Use and Other Exceptions” at the Kernochan Center’s conference last week, “Trading in IP: Copyright Treaties and International Trade Agreements,” stood the uncertainty argument on its head.
I have completed the third volume of a history of the global legal debate concerning copyright and competition in the software industry. The debate has centered on two related issues. First, does copyright protect the elements of computer programs necessary to achieve interoperability? Second, to the extent that those elements are unprotectable, can copyright law nevertheless prevent the copying incidental to uncovering those unprotectable elements?
The first volume, written with Masanobu Katoh, was published by Westview Press in 1995. You can download a copy of Interfaces on Trial: Intellectual Property and Interoperability on the Global Software Industry for free here.
The second volume, also written with Masanobu Katoh, was published by MIT Press in 2011. It covers the developments in this field between 1995 and 2010. You can download a copy of Interfaces on Trial 2.0 for free from: http://mitpress.mit.edu/band.
The third volume, Interfaces on Trial 3.0: Oracle America v. Google and Beyond, picks off where the Interfaces on Trial 2.0 left off, focusing in particular on the Oracle America v. Google litigation concerning Google’s copying of certain elements of the Java Application Program Interface (API). This litigation, initiated by Oracle in 2010, is still ongoing. However, there now is a break in the action as Oracle appeals the 2016 fair use jury verdict to the U.S. Court of Appeals for the Federal Circuit (CAFC). Because the CAFC may not issue a ruling until 2018, it made sense to me to release this volume now, and update it as the case progresses. You can download a copy here. Much of the volume’s description of the case’s twists and turns is based on blog posts I’ve written for the Disruptive Competition Project (most recently here).
After discussing Oracle America v. Google, Interfaces on Trial 3.0 reviews other U.S. judicial decisions touching on interoperability, mainly relating to section 1201 of the DMCA. The volume then examines the interoperability-related exemptions granted (and rejected) by the Librarian of Congress in the section 1201 rulemaking. Finally, the volume looks at international developments, most notably the Court of Justice of the European Union’s 2012 decision in SAS Institute v. World Programming.
Although I attempt to present these contentious issues in a balanced manner, the reader should be forewarned that I am hardly an objective observer in this debate. Rather, I have devoted significant time and energy over almost 30 years to advocating the views of interoperable developers. I believe that the triumph of interoperability will benefit both the information-technology industry and computer users around the world.
“To make the EU’s single market fit for the digital age”, by “bringing down barriers to unlock online opportunities” was one of the priorities of the current European Commission. This objective would be reached by “improving access to digital goods and services”, creating “an environment where digital networks and services can proposer” and by “ensuring that Europe’s economy, industry and employment take full advantage of what digitisation offers”.
This objective raised the hopes of the tech industry, often struggling with 28 different regulations when trying to scale their operations across the European Union. Unfortunately, the legislative proposals published by the Commission for the past year have not lived up to the tech industry’s expectations. In short, after disappointing audiovisual and telecom proposals, the Commission’s proposal for a Directive on copyright in the Digital Single Market marks the end of the Commission’s Digital Single Market ambitions.
With this copyright proposal, the European Commission has, in fact, bowed to the lobbying of legacy industries on four crucial issues, to the detriment of users’ fundamental rights, the growth of European startups, creativity and innovation.
Firstly, this proposal undermines the e-Commerce Directive, cornerstone of Europe’s digital economy, by implying that websites promoting or optimising the display of user generated content would fall out of the scope of the limited liability regime for intermediaries. In practice, most hosting websites created after 2000 would become liable for content uploaded by their users, thereby freezing innovation, free speech and investments.
DisCo readers may remember that, last February, my colleagues Matt Schruers and Jakob Kucharczyk explained that Europe’s highest court, the Court of Justice of the European Union (CJEU), would have to rule on a case about hyperlinks that could decide the fate of the World Wide Web in Europe. They were not joking around.
Well, yesterday the CJEU published its ruling on GS Media (C-160/15) – and it’s as bad as we feared it could be. But let’s take a step back first.
Under EU copyright law, the “communication to the public” of a work (comprised of two cumulative criteria, an “act of communication” to “a public”) is an exclusive right of the rights holder. Therefore, over the past few years, the CJEU tried painfully to answer the question of whether posting a link violates copyright law.
To sum up quickly, the CJEU ruled several years ago in a case called Svensson that links – i.e., the single most important feature of the Internet – were within the scope of copyright protection, as they were “acts of communication”. However, the case dealt with a situation where a website was linking to legal content, freely accessible and posted with the authorisation of the rights holder. Therefore, the Court concluded logically that no copyright infringement had taken place as linking to this content did not communicate it to “a new public”. (For more details, please see our detailed analysis here and here). But one crucial question was left open – what about linking to content posted online without the authorisation of the rights holder?