In advance of a possible ruling on Google v. Oracle coming this Thursday, I’d like to consider the implications of two potential outcomes in the case. I’ve written previously on the different ways the ruling could come down but it’s worth assessing what impact the Supreme Court’s first fair use case of the 21st century will (or won’t!) have on fair use more broadly.
Obviously, a ruling either way in Google v. Oracle has significant implications for copyright in computer code. The case has been called “the copyright case of the century” for good reason. However, I do not share the belief held by some with more hawkish copyright positions that a ruling in Google’s favor on fair use grounds will have significant implications for works in more traditionally “creative” fields, such as literature, film, music, etc. (not that working in STEM professions doesn’t require significant creativity).
To examine the uniqueness of this case relative to the universe of works eligible for copyright protection, we can look at the comments made by Justice Sotomayor during oral arguments, while questioning Josh Rosenkranz, attorney for Oracle:
The problem with that argument [the “sky is falling” if the court ruled for Google] for me is that it seems that since 1992, and Justice Kagan mentioned the case, the Second Circuit case, a Ninth Circuit case, an Eleventh Circuit case, a First Circuit case, that a basic principle has developed in the case law, up until the Federal Circuit’s decision.
I know there was a Third Circuit decision earlier on in the 1980s. But the other circuits moved away from that. They and the entire computer world have not tried to analogize computer codes to other methods of expression because it’s sui generis.
They’ve looked at its functions, and they’ve said the API, the Application Programming Interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. [Emphasis added].
Could an outcome in this case yield some new guiding principle in the application of fair use with broader implications for the doctrine in all its applications? Perhaps, but I think that the uniqueness of the interface versus implementation question and the universe of computer code more broadly makes the application to other works more traditionally associated with copyright protection a bit of a stretch.
The only guess I’m willing to hazard for Google v. Oracle is that if the Court rules in Google’s favor on fair use grounds, there likely won’t be significant implications outside of the world of computer code. Call it a strong prediction weakly held.
However, if those who work in copyright-intensive industries not related to software (songwriters, authors, filmmakers, etc.) are concerned about the impact of more expansive fair use precedent, they should be pushing for a Google win on the grounds that the APIs are ineligible for copyright protection.
Of course, a “more is more” sentiment in the rightsholder community means that an Oracle win on both counts is the desired outcome, as does a general anti-Google sentiment. But here’s my pitch: if Google is going to win, it would be preferable for those who are hawkish on copyright issues and concerned about “fair use creep” for Google to win because APIs aren’t eligible for copyright protection rather than because Google’s use is fair.
The reason? Narrowing the scope of what is eligible for copyright protection precludes the possibility of more “creep” in the scope of what constitutes fair use. But a Google victory on the question of eligibility for copyright protection is the only way to preclude this possibility.
Consider this hypothetical: suppose White parks her car on Blackacre and Black sues her for trespass. White raises the defense that many people have been using that particular spot on Blackacre to park and thus an easement should be granted. Suppose White also argues that the deed Black has is incorrect, and that the particular parking spot is in fact public land which can be used for parking.
Put yourself in the position of someone who opposes expanding the universe of cases where easements can be granted. You want Black to prevail, but if White must win then it would be better for you for the deed to Blackacre to be incorrectly written. Comparisons to real estate are fraught with difficulties when discussing intellectual property, but the general principle holds.
Now let’s consider a real-world example. In Matthew Bender v. West Publishing, the Second Circuit Court of Appeals found that West Publishing (of Westlaw fame) could not claim copyright in “additions of certain factual information to the text of the opinions, including parallel or alternative citations to cases, attorney information, and data on subsequent procedural history” as well as WestLaw’s “star pagination” feature. (For an interesting interview on the subject, I suggest this episode of the Lawyerist Podcast.)
Of course, this case is different from Google v. Oracle because fair use was not a question presented. But imagine if the case had turned out differently, and the Second Circuit found that the additional features added by West were eligible for copyright protection, but the wholesale reproduction at issue was fair use. A finding that various annotations were eligible for copyright protection but their copying is fair expands the bounds of what is covered by fair use. A finding that they aren’t eligible at all does not. (Oddly enough, the wholesale reproduction of legal documents has been found to be fair use in a case that went in West’s favor).
Again, I’m not convinced that a finding in favor of Google on fair use grounds would have significant downstream implications for works which aren’t computer code, and the court could most certainly find that the APIs in question are eligible for copyright protection and that Google’s use wasn’t fair. But the idea that a Google victory poses a threat to all rightsholders everywhere won’t be the case (if it ever could be) should the reimplemented APIs not be within the four corners of the Copyright Act.