This post first appeared on Law360.
You might think that a copyright battle waged between tech behemoths Google LLC and Oracle America Inc. about computer code has little to do with the concerns of songwriters, authors, photographers, graphic artists, photo journalists and filmmakers. You would be wrong. These groups all filed amicus briefs with the U.S. Supreme Court in Google v. Oracle, argued on Wednesday Oct. 7.
Google v. Oracle is a long-running copyright dispute in which Google admits that, pressed for time, and wanting to compete with Oracle, it copied more than 11,000 lines of Oracle’s Java software code, as well as the organizational structure of the software program.
In doing so, Google avoided the research and development costs of authorship and even the licensing obligations to make its products interoperate with other Java products those using the code legally took on. Google then began competing with Oracle — earning billions of dollars in revenue using the code and structure it had copied.
Google claims that either the portions of the code it took were not copyrightable or that Google’s use is a fair use. It and its amici — many of whom would prefer reduced intellectual property protections for software to fuel their business models — deploy terms like “permissionless innovation” and “efficient infringement” as a public relations strategy.
However, the Copyright Act is clear that software is copyrightable as a literary work — with no carveouts for particular types of code — and that fair use is a defense to copyright infringement intended to excuse limited uses of works, especially for noncommercial purposes, where the use does not compete with the original work.
That is why Google lost in the U.S. Court of Appeals for the Federal Circuit, where U.S. Circuit Judge Kathleen O’Malley opined “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”
The First Transformative Use Case at the Supreme Court in a Generation
The Supreme Court has not revisited the transformative use test articulated in Campbell v. Acuff-Rose Music Inc. in 26 years. That case added a new gloss on the first fair use factor — the purpose or nature of the use — courts consider when analyzing a fair use defense.
Artist advocates believe that some lower courts have improperly expanded transformative use over time so that it now includes uses that should be licensed, resulting in losses in income to creators.
Today it is not unusual for defendants to assert arguments that a given use is transformative even if it does not add new expression, meaning or purpose to a work, as Campbell required. It is common to hear policy arguments used to justify the need to copy the creative work of another for the sake of efficiency, or because it will reduce the cost of a product. Notable copyright scholars have even observed that transformative use is becoming a conclusory label that means all things to all people.
Although cloaked in terminology related to software code, all of the familiar transformative use debates were present in Wednesday’s oral arguments in Google v. Oracle.
Google’s counsel, Thomas Goldstein, repeatedly resorted to the public policy arguments of efficiency and cost that rankle artists. At various points Goldstein was questioned by Chief Justice John Roberts and Justices Clarence Thomas, Elena Kagan, Neil Gorsuch and Brett Kavanaugh regarding why Oracle should be penalized for developing a “particularly elegant or efficient or successful or highly adopted solution in the marketplace.”
Goldstein ultimately replied that it would “upend the world” if later competitors were unable to copy popular computer code that programmers had become accustomed to using and “make the creation of innovative computer programs less efficient.”
Google likewise argued that its use of Oracle’s code was transformative because it used the code on a mobile platform rather than a desktop. This argument was refuted by Deputy Solicitor General Malcolm Stewart, who noted that Google copied the portions of Oracle’s code that were used in the smart phone environment, so it did not transform anything.
Moreover, for app developers to have confidence that their programs would trigger the same functionality they had triggered in Java previously, the code had to perform exactly the same function it had always performed.
Hence, Google has not and could not do anything transformative in that sense either. To analogize to a motion picture that has only been released in theaters, he explained if one were to obtain a print of that film and instead stream it on a digital platform, no court would excuse that as a transformative fair use.
Why the Standard of Review Matters
What might seem like an arcane civil procedure dispute over the proper standard of review for a fair use decision may well be the most important issue for artists in Google v. Oracle because it could determine whether cases in which fair use is asserted can be decided by a judge as a matter of law or instead require a trial and determination by a jury.
Google, which has routinely requested that fair use be decided by courts as a matter of law, has raised an argument through its amici that fair use is a question that must always go to the jury.
To put into perspective what this would mean for artists: Because copyright is a body of federal law that preempts state law, it must be tried in federal courts. Most individuals and small businesses cannot afford to bring or defend against even simple infringement actions in federal court. The American Intellectual Property Law Association has estimated that the mean cost of fully litigating a copyright infringement lawsuit is $397,000. Adding a jury trial requirement to these already astronomical costs would put justice ever further out of reach for the majority of the creative community.
Requiring a jury trial on fair use is outside the norm. As counsel for Oracle Joshua Rosenkranz noted, “Professor [Barton] Beebe has identified over 100 fair use cases decided by courts on summary judgment in a 30 year time span. Google could identify only five cases that went to a jury in a similar 30 year span.”
Additionally, fair use is a defense on which both the public and creators depend and that requires stability and predictability so that individuals may make legal and commercial decisions with some certainty that they are not exposing themselves to undue risk. Google often makes these very arguments itself. To leave fair use determinations wholly to juries would undermine that stability and make innovation more dangerous and licensing more challenging.
What Artists Are Watching
Some amicus briefs filed by artist advocates invited the court to take this opportunity to clarify and rein in what they view are overly expansive fair use decisions since Campbell.
Others express worry that
Dale Cendali, co-counsel for Oracle, is optimistic after Wednesday’s argument and wrote to me in an email:
Artists have much reason for optimism. The weight of the law and the diversity of amici arrayed against Google’s view of copyright is mighty. Beyond the wide variety of independent artists groups mentioned, amici aligned with Oracle also included:
- The U.S. government, which has aligned with Oracle under the administrations of both former President Barack Obama and President Donald Trump;
- Members of Congress who enacted the provisions of law in question, confirming that they intended to fully protect software without any carveouts or loopholes and that subsequent Congresses have only strengthened those protections;
- A member of Commission on New Technological Uses of Copyrighted Works, or CONTU, the special commission convened by Congress to advise it in the late 1970s on whether and how to protect software — confirming that software is protectable as a literary work and that CONTU considered and rejected the arguments Google raises in this litigation;
- The former Register of Copyrights Ralph Oman, who served during the time period that protections for software were enacted by Congress and whose role was to advise Congress on copyright matters as it drafted and implemented legislation — noting that Google’s arguments “fly in the face of long-standing principles of copyright law codified in the Copyright Act, which Congress extended to software in 1980 when it amended the Copyright Act explicitly to encompass computer programs”; and
- A variety of software and technology companies that depend on copyright protection to facilitate their participation in standards development as well as startup investment and innovation.
There is reason for optimism for all innovators and creators, as Rosenkranz summed up for the court:
Cases like Google v. Oracle illustrate how important copyright protections are to all authors in safeguarding the excruciating investment they make in taking their work from “the passable to the masterful.”
 Brief of Respondent Oracle America Inc., Google v. Oracle, https://www.supremecourt.gov/DocketPDF/18/18-956/132891/20200212180251262_200208a%20Resp%20Brief%20for%20efiling.pdf.
 Brief of Petitioner Google LLC, https://www.supremecourt.gov/DocketPDF/18/18-956/127663/20200106172508533_18-956%20ts.pdf.
 17 U.S.C. section 107.
 Brief of Amici Curiae Ten Creators’ Rights Organizations In Support of Respondent (Ten Creators Brief), https://www.supremecourt.gov/DocketPDF/18/18-956/133394/20200219112343394_18-956%20Amici%20Curiae.pdf.
 Transcript of Oral Argument, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/18-956_kifl.pdf.
 Ten Creators Brief.
 Brief of Amici Curiae Helienne Lindvall, David Lowery, Blake Morgan and the Songwriters Guild of America in Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133298/20200218155210566_18-956%20bsac%20Helienne%20Lindvall%20et%20al–PDFA.pdf.
 Brief of Former Congressmen as Amici Curiae in Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133486/20200219145736673_18-956%20bsac%20Former%20Congressmen.pdf.
 Brief of Amicus Curiae Professor and Former CONTU Member Arthur R. Miller In Support of Respondent, https://www.supremecourt.gov/DocketPDF/18/18-956/133407/20200219120149951_18-956bsacProfessorAndFormerContuMemberArthurRMiller.pdf.
 Brief Amicus Curiae of Ralph Oman, https://www.supremecourt.gov/DocketPDF/18/18-956/133418/20200219122526620_2020-02-19%20No.%2018-956%20Oman%20amicus%20brief%20supporting%20respondent.pdf.
 Joshua Rosenkranz, counsel to Oracle in closing to the court “who will invest the excrutiating time it takes to refine code from the passable to the masterful if all of it can be stolen?”