A Legal Blog by Aaron | Sanders, PLLC


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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Federal Circuit Feeds Us Some Humble Pie: Oracle v Google Reversed

Humble Pie Taste Like Sawdust but at Least it’s High in Roughage

It’s fair to say that I was a little bit invested in the district court opinion in Oracle v. Google. I really thought it was a great opinion, thought it really helped clear the air about the vexed issue of copyright protection for computer programs—and I said so, both in a published article, and in a multi-part blog post (starting here).

So when it became clear that the Federal Circuit Court of Appeals was set to reverse the decision, I had to resist getting defensive. While my Twitter feed exploded, mostly in outrage, at the actual reversal, I put off reading the decision until I could read it fairly. The Federal Circuit might have been reversed by the Supreme Court five times out of five this year, on the very subject (patents) it is supposed to be an expert on, but that doesn’t make it wrong. And just because I had publicly supported the now-reversed trial court opinion, doesn’t mean I was right.

Most of the criticism that I read had mostly to do with policy. In essence, they contended that the Federal Circuit to be legally wrong because APIs should…

Buttermilk_Pie

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I Has Moar Flava: Nine Copyright Observations About the myVidster Case

Heh, He Said “Dicta”

Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.

So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:

Are Wieners Copyrightable?

1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.

* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them do) have starting…

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