Kirby Drake - The Supreme court decided a big case in the copyright world in 2021, in Google versus Oracle. In this presentation, I'll provide an overview of copyright law, including what is generally protectable through copyrights, the exclusive rights granted through copyrights, and the defense of fair use. Then I'll go over what happened in Google versus Oracle, address several cases that have been, or maybe implicated following Google versus Oracle, and then talk about a few issues that remain to be resolved after Google versus Oracle.

So what is a copyright? A copyright is a type of an intellectual property that protects original works authorship as soon as an author fixes the work in a tangible form of expression. Works are original when they are independently created by a human author, and have a minimal degree of creativity. A work is fixed when it is captured, either by, or under the authority of an author in a sufficiently permanent medium, such that the work that can be perceived, reproduced, or communicated for more than a short time. for example, a work is fixed When you write it down or you record it. various items can be protected through copyrights. What do you see on this slide, are the general categories for copyright protection that the us copyright office provides for, when a work is to be registered.

As you'll see, and as we'll be important in discussing Google versus Oracle, literary works can include computer programs and source code under certain circumstances. The copyright office defines a computer program as a set of statements or instructions to be used directly or indirectly in a computer, to bring about a certain result. Copyright protection for a computer program extends to all of the copyrightable expression, embodied in the computer program. The copyright law does not protect the functional aspectS of a computer program, such as the program's algorithms, formatting functions, logic, or system design. As they mentioned, one of the categories that you can seek registration in, at the copyright office is literary works. But we also have categories including musical works, which can include any of the accompanying words, dramatic works, including any accompanying music. Pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures, and other audio visual works, sound recordings, which are works that result from the fixation of a series of musical spoken or other sounds, as well as architectural works.

This next slide identifies some of the items that are not protected through copyright. And these are things that are identified by the us copyright office. These include ideas, procedures, methods, systems, processes, concepts, principles or discoveries, works that are not fixed in a tangible form, such as a choreographic work that has not been notated or recorded or an improvisational speech that has not yet been written down, titles, names, short phrases and slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, or coloring and mirror listings of ingredients or contents. The copyright law provides a copyright holder, certain exclusive rights, depending on the type of copyright involved. These exclusive rights include, the right to reproduce the work in copies, or phone or records, the right to prepare derivative works based upon the work, the right to distribute copies or phono records of the work to the public by sale, or other transfer of ownership, or by rental, lease, or lending. You can also have the right to perform the work publicly, if it's a literary musical, dramatic or choreographic work, a pantomime or a motion picture or other audio visual work. You have the right to display the work publicly if it's a literary musical, dramatic or choreographic work, a pantomime or a pictorial, graphic or sculptural work.

This right also applies to the individual images of a motion picture or other audio visual work. And then you also have the right to perform the work publicly by means of a digital audio transmission, if the work is a sound recording. There's also some defenses to these exclusive rights. So if someone sues you for copyright infringement, there are certain defenses that are provided by the copyright law. Specifically, 17 U.S.C section 107, sets for the law of the defense of fair use. Fair use is considered to be a limitation on the exclusive rights associated with a copyright. The fair use of a copyrighted work, including that use by reproduction and copies, or phone records or by any other means specified, for purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case, is a fair use. The law gives various factors to be considered, including, the purpose and character of the use. Including whether such use is of a commercial nature, or it's for nonprofit educational purposes. The nature of the copyrighted of work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for, or value of the copyrighted work. So let's look at some of these things in the context of the Google versus Oracle case.

So, as I mentioned earlier, the Google versus Oracle case involves a computer program. The Java SE program at use, at a issue in the lawsuit, is a popular open source platform for programmers to write programs in Java, which is one of the most used software languages. A feature of the Java SE platform and other programming platforms, is something called an application program interface or API, which is pre-written code for performing various standard functions that can be invoked by programmers creating applications. Such pre-written code, saves the programmer substantial time and effort, when he or she designs programs. In the Java SE platform, this pre-written code is referred to as the Sun Java API. The API in turn, involve three categories of code. Implementing code, which executes specific pre-written tasks, method calls, which select the set of implementing code for a certain task, and declaring code, which specifies the name of each task, and the location of each task in the API, thereby allowing programmers to specify the implementing code they wish to call upon. When Google set out to design its Android operating system for smartphones, it initially sought to license Java SE from Sun, including the Sun Java API. But those negotiations fell apart and Google ultimately developed its own platform, which would be compatible with legacy Java applications. Google wrote millions of lines of new code, underlying the platform. However, Google copied verbatim approximately 11,500 lines, a Java SE declaring code for 37 packages that would call upon certain tasks to be executed. Even though it wrote the extensive implementing code that would actually carry out the tasks, Google did this, so that developers conversant with the Java language, could call upon certain tasks in a manner that was familiar to them.

In 2010, Oracle purchased ownership rights to Java, and sued Google for patent and copyright infringement, ultimately seeking over $8 billion in copyright damages. Oracle claimed that Google had violated its copyright in the 11,500 lines of declaring code. As her copyright infringement, a jury found that Google had incorporated the declaring code into its Android platform, but it hung on whether Google's actions constituted fair use. However, the district judge then ruled as a matter of law, that the declaring code was not copyrightable, because it was a system or method of operation, something excluded from copyright protection by statute. The federal circuit reversed on appeal, holding that the declaring code was copyrightable, and it remanded for another trial on whether Google's use of the declaring code, constituted fair use. Back in the district court, Google won again, persuading a new jury that its use of the declaring code qualified as fair use. But the federal circuit, once again, reversed on appeal, stating there's 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 federal circuit noted that it was copyrightable, if it was original within the meaning of section 102 . They also noted that the merger defense that was raised lacked merit and that Oracle was right, that Google's copying was an unfair and infringing use of the Java API, as a matter of law. The Supreme court granted Google's petition for cert, on both the copyright ability and fair use issues.

At the Supreme court, they were asked to look at these two issues. Whether the API declaring code was copyrightable, and whether the doctrine of fair use applied. The court largely focused, on whether Google's use of the declaring code qualified as fair use, and concluded that it did. The court first considered, what standard an appellate court should use, in reviewing a fair use determination. The federal circuit had concluded that fair use constitutes a mixed question of fact and law, and that although court should appropriately defer to a jury's findings of underlying facts. The ultimate question of whether those facts established fair use, is a legal question for judges to decide de novo.

The Supreme court agreed, concluding that the ultimate fair use question, primarily involves legal work. The court rejected Google's arguments that the court should take a deferential approach, of considering only whether substantial evidence supported the jury's decision, that Google's use of the declaring code constituted fair use, and that to do otherwise runs foul of the seventh amendment. On the substance of the fair use arguments, the Supreme court observed that fair use can play an important role, in determining the lawful scope of a computer program copyright by providing a content based check, to distinguish among technologies and keep a copyright monopoly within its lawful bounds. The court then engaged in an analysis of the four factors that the copyright act sets out, as a non-exclusive consideration in a fair use assessment. And as I mentioned earlier, these are the purpose and character of the use, the nature of the copyrighted work, the amount substantiality of the portion used in relation to the copyrighted work as a whole, and the effect of the use upon the potential market for, or value of the copyrighted work.

The court concluded that each factor, weighed in favor of a finding of fair use. It characterized the declaring code at issue as distinct from other computer programs, because it is inherently bound together with uncopyrightable ideas, which were general division and organization, and new creative expression, the Androids implementing code. And they noted that the value lied in its efforts to encourage programmers to learn and to use that system, so that they will use and continue to use, Sun related implementing programs that Google did not copy. Accordingly, the court concluded that the declaring code is, if copyrightable at all, further than our most computer programs, such as the implementing code from the core of copyright. And that finding fair use on the present facts would be unlikely to undermine the general copyright protections that Congress provided for computer programs. As to the purpose and character of the use, the court found that even though Google's use of the code was commercial in nature, this was not dispositive. The court gave weight to the fact that Google copied, no more than the necessary portions of the Sun Java API, to create a new platform, the Android platform, which is consistent with the creative progress, that is the basic constitutional objective of copyright itself. Next, with respect to the amount and substantiality of the portion used, the court noted that the 11,500 lines of code that were copied, amounted to only 0.4% of the total code in the Sun Java API. And it gave weight to fact that the use was tethered to a valid and transformative purpose.

Finally, as to market effects, the court cited to evidence that Sun itself was poorly positioned to succeed in the mobile phone market. In part, because Sun had tried and failed to enter this market, and they found that the jury reasonably concluded that Google did not harm the actual or potential markets for Java SE, given the distinct markets for computers in which Sun had succeeded in establishing Java SE and mobile devices, for which Google had used elements of Java SE. In doing so, the court distinguished between value derived from new users, being it to a program because of its expressive qualities, and a program that is valuable simply because users are accustomed to it. The value of using the Sun Java API with the Android platform, thus had more to do with the investment of third parties, the programmers, in learning and using Sun Java programs than Sun's in creating the Sun Java API. Based on these factors in combination, most of the court concluded that Google's use of the Sun Java API declaring code qualified as fair use. In its six to two majority decision, the court declined to answer the threshold question, however, of whether the declaring code was copyrightable. The court assumed for the sake of argument, that the entire Sun Java API was copyrightable.

In this respect, the court's opinion was a disappointment for many that were eagerly waiting a ruling, setting out the standards for assessing whether particular forms of software would qualify for copyright protection. And in particular, an answer to the question of whether APIs are entitled to protection. In a descending opinion, Justice Thomas joined by justice Alito, took issue with both the majority's decision to bypass the copyright ability question, in its conclusion that Google's use of the declaring code, constituted fair use. Justice Thomas argued that declaring code is protected by copyright, reasoning that declaring code is inextricably bound together with implementing code and that the two must typically rise and fall together. Justice Thomas further asserted that the majority's decision on fair use, makes it difficult to imagine any circumstance, in which declaring code will remain protected by copyright. And that the majority's analysis failed to take account of the differences in the Google and Oracle business models, with the latter centered around licensing its intellectual property, as well as the similar ways in which the two come companies use Java code. The majority found these arguments unpersuasive, and took the view that the dissents, all or nothing approached to the copyright ability of computer programs would be inconsistent with the overall design of the copyright act, and the copyright framework for other subjects.

Now, we'll turn to a few cases that have been decided following Google versus Oracle. The first one is, Andy Warhol Foundation for the visual arts, versus Lynn Goldsmith. This is the case that had been decided, prior to the decision by the Supreme court in Google, versus Oracle, but that the second circuit revisited following the Supreme court's decision. The case centers around a 1981 for photograph of Prince, taken by famous music, industry photographer, Lynn Goldsmith, and her studio. In 1984 Goldsmith's agency licensed the photograph to vanity fair, for use as an artist reference to create a work of art based on the image. However, Goldsmith did not know vanity fair had commissioned artists, Andy Warhol, to use the photograph as a reference to create an image of Prince. Also when known to Goldsmith, Warhol relied on her photograph to create a series of 15 additional prints, referred to as the Prince Series, Goldsmith did not learn of the Prince Series, until after Prince's death when vanity fair published its tribute magazine, in may of 2016, featuring the Prince Series image on the cover. In that publication, vanity fair did not give any credit or attribution to Goldsmith. Goldsmith then registered the photograph as an unpublished work.

In 2017, the Andy Warhol Foundation for the visual arts, which we'll refer to here as AWF, followed action, seeking a declaratory judgment that the Prince Series works are non infringing, or made fair use of Goldsmith's photograph. And Goldsmith counter sued for infringement of her copyright. The district court granted summary judgment in favor of AWF, largely finding that the Prince Series was a fair use of the Goldsmith photograph, because it aesthetically transformed the original work. The court found Warhol's work transformed the original image from that of a vulnerable uncomfortable person, to an iconic larger than life figure. The well-known and signature style of Warhol's artwork was generally discussed, and the court noted each Prince Series work, is immediately recognizable as a Warhol, rather than as a photograph of Prince. Goldsmith appealed, and the second circuit reversed the district court decision.

The circuit held that the district court had too broadly, and subjectively analyzed, whether Warhol's work was transformative. The court conducted a detailed analysis of fair use, and clarified its prior precedent analysis of fair use. The court held that, while that the alteration of a new work with new expression, meaning or message, whether by the use of new astatics, by placing work in a different context, or by any other means is the cinequanon of transformativeness. The secondary work must reasonably be perceived as embodying a distinct artistic purpose, one that conveys a new meaning or message from its source material. The court recognized, that an overly liberal standard of transformativeness, such as that employed by the district court, risks crowding out statutory protections for derivative works, the exclusive rights that are reserved to the copyright holder. Viewing the work side by side, the second circuit held that the Prince Series was not transformative. The court found that the Prince Series, was plainly an adaptation of the Goldsmith photograph. Warhol's work retained the essential elements of the Goldsmith photograph, without adding to, or modifying those elements. The only deviations to the original photograph involved magnifying some elements like contrast and lighting and minimizing others.

AWF filed a petition for rehearing, asking the second circuit to reconsider its decision in light of the Supreme court's decision in Google versus Oracle. The second circuit withdrew its original opinion, to carefully consider the Supreme court's most recent teaching on fair use. But they, again, reversed the district court's decision, largely on the same grounds as their original decision. The court rejected AWFs assertion that Google versus Oracle, comprehensively refuted the panel's reasoning. The court found that Google versus Oracle was fully consistent with the original opinion, and identified how the Supreme court emphasized, the unique context of that case in computer software. Then they make it less applicable in other contexts, especially when the copyrighted material, serves an artistic function. Another case that's been described just perhaps the next case following Google versus Oracle, is SAS Institute versus World Programming Limited or WPL. This case is currently pending before the federal circuit. And while in Google versus Oracle, the Supreme court's sidestep the copyright ability issue. In SAS versus WPL, the copyright ability issue appears to be front and center. SAS sued WPL for copyright infringement of its SAS System, that enables various tasks and data management and analysis. SAS did not accuse WPL of copying lines of code, but instead alleged that WPL copied the functionality and use of SAS's coding language. SAS accused WPL of designing it software to execute the same input procedure used in the SAS System, and to produce equivalent outputs.

The District Court dismissed the copyright infringement claims as a matter of law, just before the jury trial was scheduled to start, and following a unique copyright ability hearing. More about that later, the court found that the SAS System software was not entitled to copyright protection. The District Court concluded that after filtering out elements that were in the public domain, factual and data elements, mathematical and statistical elements, process system and method elements, and other well known and conventional display elements, such as tables, graphs, plots, fonts, colors, and lines, there were no core creative expressions left to protect. SASs appeal, therefore, focuses on the district court's filtration of its software as discussed on the next slide.

As I mentioned, one of SASs primary arguments on appeal relates to this filtration analysis procedure. More specifically, SAS says, that it is the defendant's burden to show what aspects of a copyrighted work are not protectable. And the district court flipped that around by requiring the Plaintiff to show what is protectable. SAS also points out in it's filtration analysis that the district court held a bench trial on the issue, but called it a copyright ability hearing. Normally, this is an issue for a jury, although notably the copyright holder in this case did not raise a seventh amendment challenge. They also argued that some of their fact and with expert witnesses were excluded in improper enter during this filtration analysis. But ultimately, SAS argues that the SAS material should be deemed copyrightable as a matter of law, because of the plethora of creative choices. And even if individual elements in formatting and design are unprotectable, the overall selection and arrangement should be protectable. WPL restates the issues as to evaluate, whether copyrights over computer programs, protect the functionality of executing programs written by users in a free to use computer language, or outputs dictated by user written programs.

Based on the federal circuits, previous ruling, and what the Supreme Court has recently done in Google versus Oracle, it appears that SAS is hoping that the federal circuit will say that choosing among various options can suffice to justify copyright protection. In other words, if a developer had other programming options, the fact that it chose a particular path, could allegedly be creative enough to merit exclusive rights. Critics of SAS, such as the electronic frontier foundation, believe that SAS should lose, because it's trying to claim copyright, and processes and methods of operation. That if they are protectable at all, they should only be protected through patents. Notably, in its case, SAS was not successful on its patent claims in, opponents such as electronic frontier foundation say that SAS should not be allowed to use copyright as a backstop to cover the same subject matter. The federal circuit will likely hear all arguments here in 2022 with the decision to fall after that. So there's more to come on this case.

Let's look at some other cases that some do fall within the computer programming area or software area, but then other other areas of copyright that have cited or relied on Google versus Oracle in the federal district and appeals courts.

The first case we'll look at is, Brittney Gobble Photography versus Sinclair Broadcasting. This is a case in the district of Maryland in 2021. John Gobble was a veterinarian, and his wife, Brittney Gobble was a photographer, and they were among the first people to successfully breed a Lykoi cat. The Lykoi breed is a relatively new breed of cat with a distinctive werewolf like appearance. As the Gobble's began selling their Lykoi cats, Ms. Gobble would photograph them in order to advertise and promote the breed. In October of 2015, Ms. Gobble received copyright protection for various groups of photographs she'd taken of the cats. The World Entertainment News Network, is WENN, they reached out asking for some pictures to accompany the editorial text of a story they were putting together on the cats. The Gobble's responded to WENN, and provided a link to an album of some high images that they gave permission to be used. Notably, they said they did not give permission for the images to be distributed or to be used in an article or other media, that is purposefully derogatory toward the breed. They also asked that the images be credited to Brittney Gobble and that if the photos were going to be used, then they needed to be stating that the Gobble's were breeding for health. The breed is a natural occurrence in the feral domestic cat population, the first were born in Tennessee with in towns really close to them, and that the Gobble's love the public's positive response to the new breed. The photos were provided to the paying subscribers of WENN, and this included Sinclair Broadcasting.

An article was published crediting the photos to WENN and not to the Gobble's. Eventually, the Gobble's wrote to Sinclair, asking them to stop infringing, and the lawsuit was later filed. In the lawsuit, the defendants argued that there was fair use of the copyrighted photographs. The court looked at, and referenced Google versus Oracle, noting that fair use depends on context, and then they continued to analyze whether fair use applied based on the factors set forth in the copyright act. Notably, they identified that the defendants reproduced the photographs without making changes to them, and it was for a commercial purpose, and this weight against fair use. They also noted that thick copyright protection for the photographs was an issue. Ms. Gobble clearly made creative choices when taking the photographs. The cats were often posed, dressed up with jewelry and clothing, were photographed at different angles, and appear in settings curated with props, backgrounds, and lighting. These choices demonstrate that the photographs are entitled to thick copyright protection. The court did note that there was a factual dispute as to the effect of the use on the potential market. It noted that the Plaintiff must prove, either actual market harm, or that the widespread availability of the photographs would suppress a demand for the photographs that would have existed absent that availability, that led to the denial of the summary judgment motion, in that case.

Next case we'll look at, is CDK Global versus Brnovich, which is ninth circuit case from 2021. This case evaluated a potential conflict between what's referred to as the dealer law, and copyright laws when it comes to APIs. So this one is a software related case. So the dealer law prohibits dealer management system, DMS providers from taking any action by contract, technical means, or otherwise, to prohibit or limit a dealer's ability to protect, store, copy, share, or use data the dealer has stored in its DMS. The dealer law requires dealer management system providers to adopt and make available a standardized framework for the exchange integration and sharing of data with authorized integrators. The law specifies that this framework must comply with industry standard, security standards, and it has to be implemented using an open application programming interface or API, unless an API is not the reasonable commercial or technical standard for secure data integration. In which case, a DMS provider, may instead provide a similar open access integration method.

CDK argued that the dealers law freed dealers, authorized integrators to copy its API declaring code. In CDK's view, the integrators are analogous to Google in the case of Google versus Oracle. The court found that the authorized integrators were analogous, not to Google, but to the individual programmers in Google who use the Java API. Authorized integrators need not copy any of the APIs, declaring and implementing code. They have no need to do so. Unlike Google, authorized integrators are not attempting to replicate DMS providers APIs, to create their own complimentary platforms. All an authorized integrator needs to write, is an API request. CDK also was not able to show that the use of its API would necessarily infringe any copyright it might hold. Also the dealer law, did not require or permit copying of any copyrighted data compliment compilations. Dealers and authorized integrators would not infringe a DMS provider's copyright, by making copies of the raw data in DMS databases, or even by copying subsets of that data arranged in particular ways by the provider. To infringe a copyright, they would at minimum, have to copy substantially all of the database that the provider had structured in some creative way. CDK did not show in this case that such an application of the dealer law was likely, let alone inevitable, and in the context of a facial challenge, that failure of proof was fatal to its claim.

Now, we'll look at a case from Florida, in the Southern district of Florida, in 2021. This is the Compulife Software versus Rutstein case. In this case, the parties are competitors in the business of generating life insurance quotes on the internet. The defendants asserted that Compulife's 2010 HTML source code was not protectable through copyright, because the variable terms needed to calculate life insurance premiums, including sex amount, health, age, and location, are generally standard for the life insurance industry. And Compulife's use of common names for these variables such as state or sex, et cetera, are elements taken from the public domain. Compulife Software argued that all of its code was protectable through copyright. The court ultimately looked at the issue, and said that the defendant succeeded in proving that the majority of the programs copied elements, were unprotectable.

So why was the computer program not protectable? Well, there were various things that the court focused on. First, the Compulife closed menu of limited options, from which the end user must select, to enable the program to produce a life insurance quote, would fall within the merger doctrine. When the expression is so intrinsic to the communication of a procedure or process, courts will find that the two have merged. This typically occurs when there are only a limited number of ways to present an idea. The court found that the defendants had established that the source code copied for the organization of the states, was from a preexisting library that was inherited. This renders that portion unoriginal and thus unprotectable. The court did find that there were certain lines of code of Compulife's code that the defendants copied, that were protectable. But this was limited to 27 lines, so the copying was insignificant relative to the whole, and it overall lacked quantitative, as well as qualitative significance. The court finally noted that Compulife, failed to identify distinctive features or elements of its code, that made the program especially creative or desirable. Thus copyright infringement was not found because the Plaintiff was failed to meet its burden.

Now, let's switch gears a little bit, and we'll look at a subpoena case. This was a case in the Northern district of California, in 2021, which is under DMCA 512 subpoena to Twitter. In this case, Bayside advisory, LLC Bayside, issued a take down order, under the digital millennium copyright act, referred to as DMCA in many cases. And this is under 17 USC 512 . The take down notice was sent to Twitter, requesting that it removed six photos posted on Twitter by a user using the handle @callmemoneybags. Bayside subsequently served Twitter with the subpoena for information asking to identify the user or users of the at @callmemoneybags account.

Twitter then moved to quash the subpoena, while Bayside moved to compelled Twitter, to comply with the subpoena. The court looked at the issue and ordered Twitter to serve all the briefs on the email address associated with the @callmemoneybags account, and also granted permission to the account users to specially appear to submit information, regarding their supposed fair use of the photos. The court noted that the party seeking to discover the identity of anonymous speaker, in connection with the DMCA subpoena, usually in these cases, an analysis under the copyright law and fair use will do, rather than analyzing it under the anonymous speech approach. The court found that the speaker failed to meet the test. The court was unable to conclude that @callmemoneybag, as use of Bayside's copyrighted photos, constituted fair use, because the speaker did not augment the record to meet their burden. The tweets at issue consisted of statements combined with Bayside's photos, along with hashtags that did not convey an obvious meaning. Without evidence regarding the purpose and meaning of the tweets, The court was unable to say that @callmemoneybags, use of the photos was transformative or reasonable, in relation to @callmemoneybags purpose in posting the tweets. Also in the absence of any evidence from the user, or users of the Twitter handle about the relevant market, or the lack of market harm from a publication of the photos also precluded a finding of fair use. Thus, the accused infringer did not meet its burden of establishing fair use for the purposes of questioning the subpoena in this case.

And we'll look at another, central district of California case, 2021. This was a case actually dealing with things getting posted on the internet, but more from a textural standpoint, as opposed to photographs. In this case, it's the national Fire Protection Association or NFPA, versus UpCodes. The issue in this case was whether it was fair use for the standards published by the Plaintiff to be used by defendant without the Plaintiff's permission. NFPA published more than 300 standards for installations, including the national electrical code for use by trades people and professionals in the industry, NFPA owns copyrights, and all of the standards that it publishes. UpCodes was a for-profit corporation that was founded to make it easier for both, industry professionals and lay people, to understand how to comply with state and local building codes, by putting the building codes on a website for the public to access for free. Unlike NFP's website UpCodes website, allows users to download or print the standards that have been incorporated by reference in a jurisdiction for free, or viewing the standards for free, without registering for an account. UpCodes started uploading NFPA standards to its website.

The court looked at the issues and found that, UpCodes reproduce the portion of the code that is law with the transformative purpose. UpCodes being a for-profit entity, did weigh against fair use, but, and this was more significant, because the transformative value of the standards was low. The court found that this factor weighed for a finding of fair use, for the portions of the code had been incorporated by reference, and against a finding of fair use for the portions that have not. The actual text of the laws or the standards was factual, and this weighed in favor of a finding of fair use. NFPA argued, there's no question that if anyone could do what UpCodes is doing, the market for NFPAs works would be destroyed. The court noted that although the codes being included on UpCodes as a website, do seem like they would serve as a substitute for NFPAs standards, there was not any evidence presented of any effect on the potential mark beyond speculation. Accordingly, the request for preliminary injunction in this case, was denied because they could not show that they were likely to prevail on the claim of copyright infringement, particularly in view of the fair use defense.

An additional case from the central district of California, in 2021, is Warner verses Red Blue Media. This was another photography related case in the copyright context. More specifically, the Plaintiff was a professional photographer whose work had appeared in numerous publications, and on numerous television shows. Plaintiff focused on photographing dangerous stunts, exotic animals, sideshow eccentricities, and people who have overcome incredible obstacles. Every photograph requires many creative decisions about the subject of the photograph, the framing, the background, as well as the decisions about the equipment, the shoot location, the time of day, the angle and the lighting. In this case, the defendant owned and controlled the content of two websites referred to his guff and memes, which earn revenue through advertising.

In August of 2018, a member of Plaintiff's staff discovered several photographs taken by Plaintiff that appeared in articles on these websites without Plaintiff's permission. The court, in this case, granted summary judgment of copyright infringement, but also evaluated the fair use defense that was presented by the defendant. The court noted that the defendant's articles, added no new expression, meaning or message, to Plaintiff's photographs. It was minimally transformative use, but undisputed commercial use. The defendant also admitted that each of the articles copied 100% of the photographs they used. The court noted that the defendant could have covered the strange phenomena discussed in the articles, without using Plaintiff's photographic illustration. And, ultimately, the unrestricted and widespread conduct of the sort that the defendant engaged in, would market for licensing Plaintiff's work in the future.

So now let's look at some of the issues that are coming next from a broader sense that not necessarily that have been addressed in any particular court case yet. More specifically, in Google versus Oracle, the Supreme Court, and as we've taught about here today, provided very limited guidance for copyright protection and fair use of software. The cases practical application, will undoubtedly be argued by parties on both sides of software copyright disputes, forcing courts to reconcile the cases holding with the facts of their respective cases. But will the courts limit this case as precedent only to APIs? Or only to software that's open to the world. We don't yet know, but we do know that public policy considerations and the purpose of copyrights played an important role in the Supreme Court's decision. That certainly provides guidance for future software, copyright litigants.

Others in the software industry, were clearly watching this outcome of this case closely. If the court had cited with Oracle, some of these companies, could have more directly fallen under scrutiny. An Oracle victory, would've made it possible for companies like Oracle, to charge licensing fees for the APIs they develop. This would've put pressure on cost conscious companies, from small startups to large enterprises, to develop unique proprietary APIs, rather than pay for licensing. While this may have saved money, moving off a single universal standard would make it harder for software app applications from different companies to work together. With APIs remaining open, developers may not have to waste time, modifying their code to match a separate set of APIs, for every application. Instead, they may be able to focus on experimenting and innovating within a cross compatible software ecosystem built on universal standards. Developer skills will also continue to be transferable because developers won't have to learn a new set of APIs each time they switch companies. By deepening their experience over time, developers are more likely to unlock new areas of innovation. But that Oracle victory did not happen. And Google's victory seems to mean, that business can continue as usual, but not exactly. By sidestepping the question related to whether APIs, or software in of this type can be copyrighted, this was an issue that the tech industry thought could be decided once and for all. It means that it's certainly going to come up in future relegation. Google versus Oracle, is considered to be a highly case specific decision, that's unlikely to directly dictate the future results in disputes. After all, to be in line with this precedent, a feature case would need to entail the use of limited portions of a highly popular programming language valued more its familiarity than for its creative expression by a company seeking to develop a platform in a new landscape. A field that the entity that created the language had tried and failed to enter. And this is very, very specific, as you can see.

Notably, the Supreme court did not hold that copying APIs constitute fair use as a matter of law, or the APIs were not copyrightable as a matter of law. Fair use is a mixed question of law, in fact. The majority found Google's used to be transformative with a different purpose and character, weighing in favor of fair use because it used the code in connection with new smartphone products. Imagine, however, a company that copies declaring code, solely for the purpose of creating a clone or dropping replacement product. Such fact would not weigh in favor of fair use. And for copyright protection, the copyright act expressly text computer code, and isn't it possible to write code, to meet the extremely low threshold of possessing, a minimal degree of creativity to garner copyright protection. Applying copyright principles to computer programs is understandably an notoriously difficult enterprise with inevitable tensions. On the one hand, the copyright act expressly provides that a computer program, which I defined before is a set of statements or instructions to be used directly or indirectly in a computer to bring about a certain result can be copyrighted. On the other hand, the act expressly excludes copyright protection for any idea, procedure, process, system, method of operation, concept, principle, or discovery. As the Supreme court observed, the fact that computer programs are primarily functional, makes it difficult to apply traditional copyright concepts. While the court did not reach the copyright ability issue in Google, finding fair use, a sufficient ground for its decision.

There's much in the court's analysis and reasoning that supports the Preveal circuit consensus that APIs are uncopyrightable. There's also good reason to think that the majority approach for Java API, as an uncopyrightable system or method of operation. The court spoke of the Java APIs overall organization, as a system, and of the declarations as part of a task calling system. The court repeatedly expressed concern about programmers, having to learn a new system to call it the same tasks, Instead of being able to use that with which they were already familiar. The court characterized declarations as inextricably bound together with the general system, the division of computing tasks, that no one claims is a proper subject of copyright. Google copied the declarations, not because of their creativity, their beauty, or even in a sense because of their purpose, but because so many programmers had already learned to work with the Sun Java API system. Fair, all of the non-computer analogies, the court used to explain the Java API, were things that copyright doesn't protect.

The Google decision, like in the Java API declaration structure to file cabinets, drawers, and files, and more generally analogize the declarations to the Dewey decimal system system, gas pedals that enable cars to move faster, cordy keyboards, travel guide categories, and most strangely, human keystrokes that might direct robots to fetch recipes and deliver them to cooks. Copyright law would not extend protection to any of these intellectual creations, except perhaps for the software in the robot. Thus, these analogies offer further support for Google's uncopyrightability arguments.

Still, the decision may have far reaching implications. As the court emphasized, fair use can still play an important role in determining the lawful scope of a computer program copyright. And the fact that the court found fair use, even though the defendant used the copyrighted content in a commercial venture, after having tried and failed to negotiate a license that would've encompassed the content, will make the decision a friend of those seeking to invoke the doctrine in similar circumstances. One context in which the decision may come into play, will be the use by a company of another company's software to achieve interoperability of products. In making the observation that fair use can play an important role in addressing computer program copyrights. The court cited to two decades old night circuit decisions, Sony Computer Entertainment Inc, versus Connectix Corp, and Sega Enterprises Limited versus Accolade. In both cases, the defendants had reverse engineered code in order to understand how certain video game consoles worked. A process also revert to as, intermediate copying of the code. In Sony Computer Entertainment, the defendant used the knowledge gain from the reverse engineering process to create an emulator by which Sony PlayStation games could be played on a personal computer. In Sega Enterprises, the defendant used the knowledge gain from reverse engineering, to create new games that could be played on a Sega Genesis.

In both cases, the defendant's final did not contain any infringing code. And in both cases, the court found that the reverse engineering of the Plaintiff's code, qualified as fair use. Although the Supreme's court's citation to these cases does not, of course, constitute wholesale adoption of their holdings, it does suggest an openness to a fair use argument in the context of expanding to a platform, or allowing the use of products on a new platform, provided that the party invoking the defense does not unfairly compete with the owner of the software, or infringe other applicable rights, such as trade secrets or patents or violate license restrictions.

Additionally, the court clarified, that although an appellate court should give weight to a jury's finding of underlying facts, the question of whether those facts established fair use is a legal question to be decided by judges and reviewed on appeal de novo. As a result, the contours and applications of the fair use doctrine will not be driven by jury verdicts, but instead will be fashion and policed by judges, as a matter of ongoing jurisprudence. With respect to contracting antitrust, interoperability has substantial benefits for consumers and innovation. But arguably it's most important benefit concerns market structure and competition. Interoperability benefits, smaller competitors and newer companies by preventing these established incumbents from tying up existing customers, and locking them out of the market.

Interoperability can be particularly important to startups. Companies that develop apps for mobile phones, for instance, are often small. To start, they may not have the ability to write, several different versions of a program from scratch, one for each hardware platform or incompatible programming language, much less to separately negotiate agreements with each such platform provider in the economy. By allowing an app developer to reach the widest possible market, legal protection for an oppability increases the number of creative new works produce each year. It also ensures that no one company, no matter how dominant its platform, gets to decide what webpages you access, what files you share, or what programs you download. Without the legal ability to use APIs, software developers would be at the mercy of platform and programming leaders, who could decide whether when and how, any one could write or use a computer program that runs on their system. Startups may not invest in new products, for mobile phones or video games, or even the internet of things without confidence that their products will work on the dominant platforms. This is why the risk of overprotecting copyright is so much greater in software, perhaps, than in other areas.

Giving too much protection to a song could incrementally discourage the creation of somewhat similar songs. But giving copyright owners control over interoperability, risk shutting down the software development ecosystem altogether. Opening up the wall gardens such as Facebook, Apple, Microsoft, Amazon, and Google, will take more than just getting copyright law right. Companies that want to close their systems, sometimes use standard form contracts, terms of service, and even the federal computer crime statutes, to try to prevent competitors from writing interoperable programs. Protecting interoperability means turning away contract, and computer fraud and abuse claims that these dominant sites have used, to try to stop third parties from offering products or services, that might interconnect with dominant firm sites. It may also mean favoring antitrust enforcement that demands structural separation, or at least imposes non discrimination rules on self dealing by vertically integrated monopolist, and perhaps using antitrust or other tools to force interoperability. But none of these efforts will do much at encouraging compatibility and breaking the hold that these dominant people in the tech industry have on the market, if copyrights stand in the way. It really seems ironic that a Supreme Court victory for Google could hold the key to undercutting the power of modern tech firms. But interoperability has always worked to benefit up starts and new entrants, whether it was Android a dozen years ago, or those who want to bypass smartphone app stores today. Ultimately, the court's sweeping fair use ruling in Google versus Oracle, has been considered an important victory for software developers and for an open internet. But the decision not to address the larger question, whether interfaces are copyrightable at all, is going to produce uncertainty, because this issue was side stepped, the judges that may decide SAS versus WPL, or other cases that that may come up, could be at odds with this decision. And while the regional circuits are virtually unanimous and refusing to allow for the copywriting of interfaces, those who want to claim copyrights in their interfaces, may guarantee that the federal circuit will hear any appeal of copyright ability issues through various ways, including form shopping by adding a patent claim to their complaints.

Just in the last couple of minutes here, beyond computer software and source code, there are other emerging technologies that may produce issues that may be implicated by the copyright ability and fair use analysis in Google versus Oracle, such as in the area NFTs and the metaverse. So you may ask what? What we refer to as the NFT and the metaverse, essentially, you may have heard about it, and thinking about anything and everything these days can be tokenized. We can do that as tweets, it can be paintings, it can be records, it can be anything.

There are many, many different things that are coming up, but particularly when we talk about NFTs, that's referred to as a non fungible token, it's a line of alpha numeric script that record a sale of cryptocurrency on a blockchain. This is an acronym that generally describes a sale of up to currency by recording it on the blockchain, which is considered to be an immutable digital ledger. And so when you record the NFT on the blockchain, this is not the same as just any digital file or item to which the token purports to relate. But, there is a question about the owner's of that item related to the NFT. And particularly the ownership item related to the NFT is not depleted depicted on the blockchain. So, the concept that we're talking about here is not something new, but because of the money that's been involved with this more, more recently, it's led to a lot more issues. And we're seeing a lot of lawsuits that are coming up in this area. So one of these lawsuits that has come up just recently and we'll remain to see how it actually plays out, is related to the famous luxury brand Hermes, and an artist that they've come in the crosshairs with. So there was an NFT that has been marketed as MetaBirkins, and Birkin is one of Hermes prime brands when it comes to handbags.

Back in 2021, the creator of that NFT, he posted an open letter Hermes, but he posted on his account, and he noted that he had received a cease and desist letter from Hermes, and he confirmed that he had taken down the MetaBirkins from the NFT platform, and based on the allegations that Hermes had made, that it was infringing on its trademark rights and making fake Hermes products in the metaverse. He argued that the MetaBirkins NFTs were shielded from the trademark claims because of the first amendment, giving him the right to create art, based on his interpretations of the world around him. And he also claimed that it was a commentary on fashion's history of animal cruelty, and its current embrace of for-free initiatives and alternative textiles. So that was what happened in 2021, but early here in 2022, Hermes did file a lawsuit against that creator Rothschild in the Southern district of New York, and that case is currently pending.

And the case raises the issue of whether the creator's attachment of the word meta, to its brand Birkins, and how it was used as an NFT is a fair game prefix for any brand add-on, tokenizer, and also presents the first amendment defense and sharper contrast. Questions on whether the court is gonna view this case as an artist creating a new form of speech, deserving of expressive protection in a virtual world, or is this person just a troll in the trademark or copyright context, that's devouring, carefully cultivated marks and brands. I think that the Google versus Oracle case is probably going to come up in this analysis, but we're going to have to wait and see, but ultimately, there are a lot of questions that are going to be raised in this, including whether the creator is going to claim that this is a parody, namely that the MetaBirkins call to mine an actual Birkin, while also distinguishing the MetaBirkins parody from the original product, but he would've to show some articulable element of Sati or ridicule, or joking, or amusement, and that the NFT is not merely an attempt to piggyback on the appeal of Hermes and its most famous offering.

There's also a snag to claiming fair use protection because the parody defense does not provide protection, when the allegedly infringing use is a designation of source of the defendant's own goods. So the defense doesn't apply when the parody uses the parody as its own trademark. And so, this question of whether the MetaBirkins name, is a designation of source of Rothschild collection of NFTs, and so we'll have to wait and see about that. Ultimately, it's hard to know what is going to come about, and what would actually be constituted as copyrightable and what is artistic expression when it comes to NFTs. Copyright law provides all these different rights that are exclusive to the owner of a copyright in the work. And if the copyrighted image is being used in a critical parody or scholarly way, it could be fair use, but NFT projects are inherently commercial use, especially if you're selling them of a particular image, which could cut against a fair use finding. And so this should be a very interesting thing to follow in the time to come.

I hope you've learned a little bit more about copyrights, as well as the Google versus Oracle case, and what's on the horizon, following the Supreme Court's decision in Google versus Oracle. If you have any questions or would like any further materials on this or any other topics, feel free to reach out to me. Thanks.