A Legal Blog by Aaron | Sanders, PLLC


Is it Fair Use? Who’s on First (Copyright Fair Use Factor)?

Abbott and Costello Meet the Copyright Lawyer (1 1/2 Stars)

It’s time for another round of “Is it Fair Use?”, the fast-paced, heart-racing game that’s sweeping the nation. This episode of “Is it Fair Use?” features one of the classic skits of American Comedy: “Who’s on First?”

Pure gold. Most of us have this routine more or less memorized, and yet, even knowing all the jokes, the routine is never fails to make us laugh.

Along Came a Demonic Hand Puppet

Much more recently, a Broadway play, called Hand to God, about—if I’m understanding this correctly—a possibly possessed hand puppet, used about the first minute’s worth of routine. The play is about “an introverted student in religious small-town Texas who finds a creative outlet and a means of communication through a hand puppet, which turns into his evil or devilish persona.” It’s meant to be a “dark comedy.”

Early in the play, we get a sense of what we’re in for when the boy with the puppet tries to impress a girl by reenacting the “Who’s on First?” routine, between himself and the hand puppet. (The puppet naturally plays the Costello role.) After about a minute of the routine, pretty much verbatim, the girl…

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The Aftermarket Holy Grail: Using Software Copyrights to Control Replacement Parts

Intellectual Property and Personal Property: Two Great Tastes That Might Not Taste Great Together

When everything runs on software, then everything will be subject to copyright protection, and you might not like the consequences. Let’s take cars, for example. In the old days, if your car needed a new distributor cap, you’d go down the neighborhood auto supply shop, and you would have several different manufacturers competing for your money, which keeps the price for replacement parts low. One of the manufacturers might be “authorized” by the car manufacturer and appropriately branded. And that one might command a somewhat higher price because of that association and the sense that it will somehow work better with your car. That premium is the result of branding—and trademark law—and years of hard work building up the brand.

The Right to Distribute Distributors

Slap a little computer module on the distributor cap, and the car manufacturer has a lot more control over who can manufacture replacement distributor caps. That’s because the computer module requires software, and software is made up of characters, and that makes it a literary work that is subject to copyright protection. It doesn’t matter if the only characters involved are 0 and…

Plug and play! (But where does the software come from?)

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Google v Oracle (Part 3): Why Copyright Is a Bad Fit for Software

NOTE: This is the third (and final) in a series. Part 1 is here. Part 2 is here. See Part 1 for my sources for information about the trial.

But it’s All We’ve Got

After two trials, one appellate reversal, another appeal on the way, millions on millions of dollars in attorney’s fees, thousands on thousands of attorney hours, thousands on thousands of pages of testimony, and we are no closer to understanding whether, and when, APIs are copyrightable? Wasn’t that the whole point?

Precedent, Bright Lines & Justice

Lawsuits are often disappointing to interested observers, even when their “side” wins. Lawsuits resolve disputes between parties. They only incidentally—and haphazardly—make law. Courts make law through precedent, which means a lower court cannot diverge from a “holding” of the court. By definition, trial courts, like the one that just heard Oracle v. Google fair use trial, cannot make law, since there are no courts below it. Still, decisions rendered by trial courts can still be powerful “persuasive” authority. Another trial court, faced with a lack of precedent, can read how other trial courts handled the question and say, “That looks like the right way to handle it.” They can also say, “No, that’s…

Coding as art? (From Oracle's slides used in its closing arguments.)

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Oracle v Google (Part 2): Was it Fair Use?

Bringing Merger in Through the Side Door

This is part 2 in a series (of at least three posts). Part 1 is here.

Regular readers of the IP Breakdown—both of you—will recall a semi-regular feature called Is it Fair Use?, which is a fast-paced game in which I give you a lot of facts and an analogous (and often binding) case, and let you decide whether the use of the copyrighted work was a fair use or not. This game has been sweeping the nation for about four and a half years, apparently in layer of negligible thickness.

My point in this feature is that close fair use determinations are unpredictable because they are based on—at least—four fact-intensive factors that often end up as a kind of cultural value judgment. While many fair-use determinations are pretty easy, the ones that end up being decided by a court are usually pretty hard.

Juries Are Scary.

The fair use issue in Oracle v. Google represented a kind of triple witching. First, it involved fair use. Second, it went to trial. Third, it went to a jury trial. Twice. Most fair-use determinations seem to be made by judges, on summary judgment or even Rule 12(b)(6)—which…

We are Google. This is the Googleplex. The old rules don't apply to us. Also, these cute Android statutes rise at night and suck the innovation out of small companies. Photo by Runner1928.

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Oracle v Google: The Jury Has Spoken, But What Did it Say?

Note: This post and those following rely on and are indebted to live-tweeting by Sarah Jeong and Mike Swift of the trial. Jeong storified the trial here. You can find Swift’s twitter feed here. I also reference the jury instructions, which you can find here.

Once a Year, Everyone Pays Attention to Copyright (and Finds Something They Don’t Like)

It’s been only a little more than a year since a jury has rendered a controversial verdict in a closely watch-ed copyright case. That case, of course, was the “Blurred Lines” case, which led much furrowing of brows and some gnashing of teeth about whether, if verdicts like this become a trend, songwriting will become too risky to pursue. While there is evidence that “Blurred Lines” really is part of a trend in music cases, songwriting is not doomed, as I explained at the time.

The jury’s recent finding of fair use in Google v. Oracle has led to some wringing of hands, knowing tut-tutting, and even some exuberance:
* All copyright in software is doomed, especially free software.
* It’s nice and all for Google, but everything is already terrible because APIs were found to be copyrightable and fair use is a poor…

The waters of Redwood Shores appear peaceful, but lurking, lurking, lurking... Photo by Hokan Dahlström http://www.dahlstroms.com

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