A Legal Blog by Aaron | Sanders, PLLC

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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The Silly Dispute Between Georgia and Public.Resource.Org: Are Statutory Annotations Even Copyrightable?

I Fought (for) the Law; Who Wins?

When I started law school, I had only the vaguest idea of what lawyers did. I figured it had something to do with arguing in front of juries and judges, writing legal briefs and contracts. That’s what I expected to learn in law school. I was in for something of a surprise.

One of the first classes I took was “Legal Research and Writing.” I assumed it would be about 90% writing and 10% research. This was because I thought “research” basically consisted of “looking stuff up.” Anyone could look up the law, I thought, but lawyers are just really good at it. I imagined the aisles and aisles of books in the law library consisted of reams and reams of “laws.” You just had to find the right one. Sure, I had heard of “cases,” because I had heard of things like Plessy v. Ferguson and Marbury v. Madison. I knew that somehow these “cases” helped determine the law, but surely either they were rare or they were codified somehow into something you could look up.

Oh, my sweet Lord, was I mistaken. The “law” wasn’t something you “looked up” at all. It was…

These "reporters" collect "published" judicial opinions in roughly chronological order. Photo by "Coolcaesar".

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Oracle v. Google: Copyright, Coding Choices and the Merger Doctrine

Part III: What Happens to Copyright Protection When There’s Only One Reasonable Way to Code Something

Through philosophical discussions of motorcycle maintenance, pancakes and old 1980’s TV ads involving peanut butter and chocolate, my last two posts can be boiled down into three fundamental rules of copyright law:

1. There is no copyright protection for ideas, facts, functionality, etc., or where the expression is dictated by outside forces, such as tradition, efficiency or compatibility.

2. Where a work has both unprotectable elements and protectable elements, you have to conceptually filter out the unprotectable elements, focusing on just the protectable expression.

3. But, when there’s only one reasonable way to express an idea, fact, function, etc., that entire expression is unprotectable (because otherwise you’d get de facto copyright protection over the idea, fact, function, etc., in violation of principle no. 1).

These principles are very important—fundamental even—for all types of copyrightable works, but they are central importance for computer code precisely because computer code is fundamentally functional. Therefore, these principles play the key role in the court’s holding in Oracle v. Google that the Java APIs are not copyrightable.

I Do Declare

The great thing about a Java “method” is that each has two separate parts, which…

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Copyright and APIs after Oracle v. Google: Functional Expression or Expressive Function?

Part II: When Expression and Function Collide

We’re talking about computer code in Oracle v. Google, and computer code is challenging because it’s expressive but also functional. Last time, I explained that when functionality gets mixed up with expression, we try to separate the expression from the functionality and protect just the expression. But I implied that sometimes they can get too mixed up to be separated. What do we do then? A couple of examples might help.

Consider a manual for motorcycle maintenance that describes a method for cleaning out a motorcycle’s carburetor. The manual is certainly copyrightable, but you have to exclude from copyright protection the method for cleaning the carburetor. If you photocopied the pages describing the method, you’d be violating copyright. But if you described the method in your own words, you’d be fine. The expression is what’s protected, not the ideas (or facts or functions).

With software, this principle takes on overwhelming importance, since software is, by its nature, functional. It makes computers do useful things. Indeed, it may strike some (non-developers) as strange that computer code should be protected the same way novels, movies and music are protected—that code can be “expressive” in the first place.


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