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As entertainment charts a technological future where content is streamed to consumers, the industry’s biggest studios have just weighed in on a Supreme Court case that will have outsized influence on the development of software interactivity. On Wednesday, all but one member of the Motion Picture Association filed arguments in support of Oracle, the tech giant aiming to punish Google for allegedly infringing computer code to build the Android operating system that’s currently used on more than 2.5 billion mobile devices. Universal Pictures, Paramount Pictures, Walt Disney Studios, Warner Bros. and Sony Pictures are staking out a protectionist stance in a dispute dubbed the “Copyright Case of the Century,” but notably, the newest amicus brief comes without the assent of Netflix, which joined the MPA just a year ago.
The stakes of this battle to be argued at the Supreme Court on March 24 are hard to overstate. Some legal observers have quite credibly declared this case to be the most important copyright dispute ever to be heard by the high court.
Oracle is the owner of Java, a popular programming platform used to create apps for messaging, navigation, news and social media. The computer language is open to developers, who have used it to not only create useful apps, but also in a manner where these programs communicate with each other. Within the hierarchy of the Java API, there’s “declaring code” and “implementing code.” To build Android more than a decade ago, Google relied heavily on pre-existing declarations familiar to programmers (more than 11,000 lines of code invoking basic computer functions) while rewriting the aspect of the software actually performing tasks. According to Google, declarations are like labels identifying drawers of a cabinet. Oracle has a different metaphor: Declarations are like topic sentences, while implementing code is akin to the body of paragraphs.
Google may have thought it was escaping liability by bypassing Oracle’s library of prewritten implementation code, but Oracle seeks $9 billion in damages for Google’s reuse of the declaring code. In other words, Oracle claims protection in Java’s intricate organization, which many computer scientists worry may make interoperability hard to achieve without a license.
The first big question in this case pertains to the scope of copyright.
Google initially scored a victory on this subject before that win was reversed on appeal. Copyright protects expression, not ideas, but under something called the “merger doctrine,” when there is a limited number of ways to express an idea, it’s hard to separate the two, and in those circumstances, the expression is not protectable. Applying the merger doctrine, a district court judge ruled there could be no copyright violation in using declaring code given the finite ways to invoke a computer function. But the Federal Circuit Court of Appeals, reasoning that Google could have written its own declaring code (even if doing so would be highly inefficient), held that merger was inapplicable. Oracle could indeed protect the “structure, sequence, and organization” of its application programming interfaces.
Arguably, the Supreme Court’s decision on the issue of scope could have ramifications for Hollywood. When the case gets argued before the justices next month, both sides are likely to employ plenty of metaphors and lean on a body of copyright precedent examining works of authorship like songs and movies. If the Supreme Court adopts a robust merger doctrine, that ruling may one day inform how future courts weigh cases involving everything from alleged script plagiarism to song theft. The inverse is true as well. As much as the outcome matters, so, too, does the high court’s reasoning in separating art from science, creativity from functionality.
But that’s not the aspect of the case that is of immediate concern for movie studios. Instead, the film industry takes up the second question presented in this case — whether Google’s use of a software interface constituted a “fair use” of copyright.
At an earlier stage of this case, the district court pushed to trial the question of whether Google had infringed Oracle’s code. In 2016, a jury concluded that Google had not violated copyright because the defendant’s use of the hierarchical structure of Java API was fair use, accepting, among other things, Google’s contention that it made transformative use of the code to create an innovative smartphone operating system and that Android wasn’t a market substitute for Oracle’s code.
On appeal, the Federal Circuit reversed this holding, too, ruling that both Google and Oracle were in the commercial market and that Oracle could indeed show harm even if it wasn’t yet in the smartphone business.
The MPA opines on what it sees as the “proper application of the fair use defense,” although it does so without Netflix. In a footnote, it’s noted that the streamer takes no position here.
The amicus brief (read in full here) goes pretty far in disclaiming any fair use when it comes to software code, which is protected under copyright law as a literary work.
According to the movie studios, “Unlike purely expressive works, software, by definition, has a functional component that makes it inherently different. Applying the concept of transformation to partially non-expressive works like software is like trying to put the proverbial square peg into a round hole: transformation, with its focus on new expression, meaning, or message, assumes an effect on human thought or emotion; in contrast, software, in significant part, operates independently of such human thought and emotion.”
It’s added that Google is attempting to defend its “transformative use” of code by pointing to its “innovative” product.
“Google’s approach not only lacks any precedent and is inapt, its purported new exception swallows the rule,” respond the movie studios. “The unintended consequences of applying legal concepts developed in fair use cases involving purely expressive works to a software case like this one, especially in the radical manner advocated by Google, could cause a seismic shift away from long-established law and legitimate marketplace expectations. The harmful consequences would be felt not only in the instant case, but also across the creative industries, should the resulting analysis be inappropriately applied to future cases involving traditional, purely expressive works.”
In other words, the entertainment industry doesn’t want copyright infringement of motion pictures and television programs to be excused purely because the resulting work is deemed to have some social value.
This position is well beyond what the film industry previously put forth at the Federal Circuit. There, the MPA only looked at the fourth factor governing fair use — the effect of the use upon the potential market — and wanted to ensure that just because a Hollywood studio (or any copyright holder) hasn’t exploited its work somewhere doesn’t mean they wouldn’t eventually do so.
The latest brief has echoes of that argument, too.
“In today’s era of rapid changes in technologies and business models, potential markets can and do quickly become actual markets,” states the movie studios, represented by Robert Rotstein, Eleanor Lackman and other attorneys at Mitchell Silberberg & Knupp. “As a means of encouraging copyright owners to create and disseminate new works in new ways, the Copyright Act protects copyright owners’ rights to develop those new markets. To dismiss harm to such potential markets in the fourth-factor analysis contravenes the purposes of copyright law.”
The MPA isn’t the only group to file amicus briefs in support of Oracle. Also on Wednesday came ones from the Association of American Publishers, journalism law professors and the News Media Alliance. Also not to be missed is Dolby Laboratories, which says it spent $240 million last year on technology including surround-sound programs installed in movie theaters and that “stripping technology companies of the historical copyright afforded such works would undermine the entire industry’s incentive structure.”
Before Netflix joined the MPA, it was a member of the Internet Association. Along with the Computer & Communications Association, this trade group warns that if the Supreme Court doesn’t reverse the lower appellate court, it will represent a major setback to technological innovation. “The interoperability enabled by this legal regime has led to a dizzying pace of innovation and consumer choice,” states the tech industry’s brief. “Unfortunately, the Federal Circuit’s decisions in this case have disrupted this stable legal environment.”
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