October 12, 2020 – The Supreme Court on Wednesday publicly struggled with the copyrightability of software in a uniquely contested case between Google and Oracle, the outcome of which could play a significant role in the future of software development in the United States.

The oral arguments were the culmination of a battle that started 10 years ago, when tech company Oracle accused Google of illegally copying its code. Oracle owns the copyright to the Java application programming interface that Google utilized to establish a new mobile operating system.

The company has sued Google for more than $9 billion in damages.

Yet Google claimed a “fair use” defense to its copying. Google copied less than 1 percent of the Java code. Even though the law generally treats computer programs as copyrightable, Google’s attorney before the Supreme Court, Thomas Goldstein, said that by adapting Oracle’s code to serve a different purpose, Google’s use was “transformational,” and entitled to fair use protections.

Goldstein said that this form of unlicensed copying is completely standard in software, and saves developers time and lowers barriers to innovation.

He referenced a famous Supreme Court precedent about public domain works, Baker v. Selden, which in 1880 declared that once information is published to the public, the public has a right to use it.

“Google had the right to do this,” said Goldstein.

Still, Oracle attorney Joshua Rosenkranz asserted that the Java code is an expressive work eligible for copyright protections. Rosenkranz further argued that Google’s use of the code was not transformational.

Justice Sonia Sotomayor appeared to suggest that jurors in the lower court case properly found Google’s use to be transformational because it took the APIs from a desktop environment to smartphones.

“Interfaces have been reused for decades,” said Goldstein. Google had to reuse Oracle’s code to respond to interoperability demands.

“It has always been the understanding that this purely functional, non-creative code that is essentially the glue that keeps computer programs together could be reused, and it would upend that world to rule the other way,” he said.

Supreme Court observers said that the high court appeared leaning toward upholding the 2016 jury verdict vindicating Google’s fair use defense.

July 28, 2020 — “Fair use” is an essential doctrine of copyright law that is unevenly applied, said participants in a Senate Intellectual Property Subcommittee hearing Tuesday.

The hearing, “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use,” saw participants discuss whether the Digital Millennium Copyright Act still permits fair uses of copyrighted content that would be otherwise infringing.

The DMCA, passed in 1998, criminalizes the manufacture, sale or other distribution of technologies designed to decrypt encoded copyrighted material. This ban on anti-circumvention tools does not appear to account for fair use.

The fair use exception to copyright law allows the republication or redistribution of copyrighted works for commentary, criticism or educational purposes without having to obtain permission from the copyright holder.

However, Joseph Gratz, partner at Durie Tangri, said that fair use often clearly applies but is not enforced, leaving users of the legally obtained content to deal with automated content censors.

“Fair use depends on context, and machines can’t consider context,” he said. “A video, for example, that incidentally captures a song playing in the background at a political rally or a protest is clearly fair use but may be detected by an automated filter.”

When an automated filter detects a song on a platform like YouTube, it redirects advertising revenue from the creator of the video to the creator of the song, often erroneously.

Rick Beato, who owns a music education YouTube channel with over one-and-a-half million subscribers, said that he does not receive ad revenue from hundreds of his videos.

“One of my recent videos called ‘The Mixolydian Mode’ was manually claimed by Sony ATV because I played ten seconds of a Beatles song on my acoustic guitar to demonstrate how the melody is derived from the scale,” he said. “This is an obvious example of fair use, I would argue.”

Grammy-winning recording artist Yolanda Adams testified that she sees the problems of fair use employment as about more than simply receiving money.

“As a gospel artist, I’m not just an entertainer,” she said. “I see my mission as using my gift to spread the gospel — so for me, fair use is not just about money. It’s about access.”

June 3, 2020 — The protections against redistribution of copyrighted content as enumerated in the Digital Millennium Copyright Act are insufficient, said participants in a Senate Intellectual Property Subcommittee hearing on Tuesday.

The Subcommittee hosted several artists of various trades to testify about the ways the DMCA has affected them. Many of them expressed concern at what they see as the legislation’s shortcomings.

Don Henley, lead vocalist for the Eagles, said that big tech companies have repeatedly abused the DMCA to use licensed music for free illegally.

“When a simple online search for a song returns an endless list of sites that never asked the copyright owner for permission, never received a license and never passed on a penny to the artist for the use of their music, the system is not working,” he said.

The DCMA criminalizes the production of equipment or services intended to distribute copyrighted material illegally. At the same time, Section 512 of the law creates a “notice and takedown” process to streamline the removal of allegedly infringing material from tech platforms.

So long as the tech platforms follow Section 512’s procedures, they remain immune from contributory copyright infringement. This provision of the law has provided a great deal of certainty in the internet content ecosystem.

Since the legislation was signed into law in 1998, various provisions of the law do not properly address the impact of newer digital technologies that can reproduce and redistribute digital media, panelists said.

Kerry Muzzey, an instrumental soundtrack composer, said that large companies have used his work illegally under the guise of “fair use,” and that despite his attempts to remedy the situation and receive payment, the companies have been mostly unresponsive and sometimes hostile.

“I began to send DMCA takedown requests on these tens of thousands of uses, and I quickly learned just how broken the DMCA was,” Muzzey said. “As I filed takedowns, I began receiving counter-notifications forwarded by YouTube. These notifications were from the companies and organizations using my music, as well as individual YouTube users — all of whom said that their use of my music in their ads, commercials and fundraisers was fair use under U.S. Copyright Law.”

Other participants reported similar experiences. Photographer Jeffrey Sedlik claimed that tech companies do not do all they could to protect against illegal use of his photographs.

“Instead of using readily available technologies to identify and mitigate copyright infringement,” he said, “service providers [ignore] illegal activity, allowing infringers to infringe, exploit and monetize my work with impunity.”

One of Sedlik’s proposed solutions is a government requirement that online service providers must perform recognition scans to identify and take action on illegal uses.

“This is not the effective, balanced system envisioned by Congress when it enacted the DMCA,” he said. “The fact that millions of takedown notices are issued each day is not a sign of success. It is a sign of an unbalanced system under strain and on the verge of failure, if not beyond.”