George Mason University Antonin Scalia Law School

CPIP’s Sandra Aistars & Scalia Law Alumnae Urge Federal Circuit to Protect Creators and Rein In Fair Use in Oracle v. Google

U.S. Capitol buildingOn February 17, 2017, CPIP Senior Scholar Sandra Aistars filed an amicus brief in Oracle v. Google, a copyright case currently before the Federal Circuit. Prof. Aistars worked in conjunction with Scalia Law alumnae Antigone Peyton and Jennifer Aktins of Cloudigy Law and third-year law student Rebecca Cusey to file the brief on behalf of 13 intellectual property scholars, including CPIP’s Matthew Barblan, Devlin Hartline, Sean O’Connor, Eric Priest, and Mark Schultz.

The amici urge the Federal Circuit to find that Google’s for-profit, verbatim copying of thousands of lines of Oracle’s copyrighted code was not fair use. They note that an overly broad application of the fair use defense “threatens the fundamental protections of copyright law,” and they argue that “the application of fair use in this case must be faithful to the underlying purposes of both copyright law and the fair use defense.” The amici point out that there would be “significant negative ramifications for all authors” if the Federal Circuit were to excuse Google’s copying of Oracle’s creative work for the purpose “of creating a competing commercial product.”

The amici conclude: “Expanding the fair use defense to excuse appropriation of software code for commercial gain will harm both creators and the public, as creators will have less incentive to develop new software. The public will not be well-served by policy that slows down the creative advancement of software. Nor will the public be well-served by an application of fair use that will gut copyright protection for other creative works by excusing a purely commercial copying of a creative work that harms the market for the original or its derivatives.”

To read the amicus brief, please click here.