Cross-posted on the Law Theories blog.

The making available issue takes center stage today on Capitol Hill as the House Subcommittee on Courts, Intellectual Property, and the Internet holds a hearing on “The Scope of Copyright Protection.” Copyright treatise author Professor David Nimmer argues for the making available right (testimony available here), and Tulane Law Professor Glynn S. Lunney, Jr., who just so happens to be my doctoral advisor, argues against it (testimony available here).

In two previous posts about the making available issue (available here and here), I suggested that the Nimmer treatise had changed its tune on whether merely making a work available constitutes distribution absent actual dissemination. After reading Professor Nimmer’s testimony, as well as reviewing Nimmer 1See 2-8 Nimmer on Copyright § 8.11[C][1][a]-[b] (2013). and the related journal article by Professor Peter S. Menell, 2See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 20-21 (2011). I realize that I was wrong to say that Nimmer had flip-flopped on the making available question. Professor Nimmer never said that distribution requires evidence of actual dissemination in the first place.

Nimmer used to state: “Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords.” 32 Nimmer on Copyright § 8.11[A] (1996). And Nimmer now states: “No consummated act of actual distribution need be demonstrated in order to implicate the copyright owner’s distribution right.” 42-8 Nimmer on Copyright § 8.11[B][4][d] (2013). On its face, it appears that Nimmer has made a 180 degree turn on whether distribution requires actual dissemination. But the fault with this line of thinking is that, in the first statement, Nimmer was not saying that actual dissemination is an element of a plaintiff’s case-in-chief in proving unlawful distribution. It was instead contrasting distributions with performances.

Section 106(3) gives copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 517 U.S.C.A. § 106(3) (West 2014). Thus, the distribution right only covers “copies or phonorecords,” which are material objects in which works are fixed. 6See 17 U.S.C.A. § 101 (West 2014) (“‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed. *** ‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”). Performances, by contrast, are ephemeral and unfixed. 7See 17 U.S.C.A. § 101 (West 2014) (“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”). An unauthorized public performance of a work is not a distribution because nothing is fixed in a material object when one performs a work. Distributions involve tangible disseminations, while performances involve disseminations that are intangible.

It should be noted that, despite the “copies or phonorecords” requirement, distributions can occur electronically. This might at first seem strange, since sending someone a file via computer is not the same thing as handing someone a tangible copy. However, the argument that Section 106(3) does not reach electronic distributions is foreclosed by the Supreme Court’s opinion in Tasini. 8See New York Times Co., Inc. v. Tasini, 533 U.S. 483, 498 (2001) (“LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, ‘distribute copies’ of the Articles ‘to the public by sale,’ § 106(3)”); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (“The Supreme Court has indicated that in the electronic context, copies may be distributed electronically.”). Moreover, sending someone a work electronically does involve a tangible copy, because “[w]hat matters . . . is not whether a material object ‘changes hands,’ but whether, when the transaction is completed, the distributee has a material object.” 9London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 174 (D. Mass. 2008). The person the file is sent to has a copy fixed in a material object in whatever media he stores the file on, and this fulfills the “copies or phonorecords” requirement under Section 106(3).

Turning back to Professor Nimmer’s testimony, the origin of the earlier statement in Nimmer that infringement of the distribution right “requires an actual dissemination of either copies or phonorecords” stems from the treatise’s account of the Second Circuit’s opinion in Agee. 10Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995). In that case, the Second Circuit held that “merely transmitting a sound recording to the public on the airwaves does not constitute a ‘distribution.’” 11Id. at 325. In reporting that holding in his treatise, Professor Nimmer stated:

Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords. A public performance of a work is not a publication and hence, even if unauthorized does not infringe the distribution right. Given that transmissions qualify as public performances, liability for that conduct lies outside the distribution right. 122 Nimmer on Copyright § 8.11[A] (1996).

That first sentence was later quoted out of context by many courts and taken to mean that evidence of actual dissemination is an element of an unlawful distribution claim. But, as Professor Menell explains, that is not the proper interpretation:

That language, written before the emergence of peer-to-peer technology, did not attempt to address its implications for copyright law. It merely contrasted distribution, which requires the dissemination of a copy, with performance, in which no copy need be disseminated. In context, the paragraph simply means that there is no violation of the distribution right when the substance of the copyrighted work has been intangibly dispersed via performance. To violate the distribution right, instead, tangible copies must be at issue. In the peer-to-peer context, uploading followed by downloading results in a “copy” resident on the second peer’s computer, meaning that the tangibility requirement has been met. 13Menell, 59 J. Copyright Soc’y U.S.A. at 21.

When Nimmer stated that distribution “requires an actual dissemination of either copies or phonorecords,” it was making the point that a distribution involves a work fixed in a material object while a performance does not. That statement had nothing to do with what evidence is necessary to prove an unlawful distribution. Furthermore, the treatise’s current statement that “[n]o consummated act of actual distribution need be demonstrated” is not a reversal from the earlier statement in Nimmer. This newer assertion in the treatise is making an evidentiary point about what proof is needed to establish an unlawful distribution. Thus, Nimmer did not change its tune on the making available issue as I erroneously had stated in my two previous posts.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. See 2-8 Nimmer on Copyright § 8.11[C][1][a]-[b] (2013).
2. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 20-21 (2011).
3. 2 Nimmer on Copyright § 8.11[A] (1996).
4. 2-8 Nimmer on Copyright § 8.11[B][4][d] (2013).
5. 17 U.S.C.A. § 106(3) (West 2014).
6. See 17 U.S.C.A. § 101 (West 2014) (“‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed. *** ‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”).
7. See 17 U.S.C.A. § 101 (West 2014) (“To ‘perform’ a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.”).
8. See New York Times Co., Inc. v. Tasini, 533 U.S. 483, 498 (2001) (“LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, ‘distribute copies’ of the Articles ‘to the public by sale,’ § 106(3)”); see also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (“The Supreme Court has indicated that in the electronic context, copies may be distributed electronically.”).
9. London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 174 (D. Mass. 2008).
10. Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995).
11. Id. at 325.
12. 2 Nimmer on Copyright § 8.11[A] (1996).
13. Menell, 59 J. Copyright Soc’y U.S.A. at 21.

A Little Bit of Laches Goes a Long Way (via Volokh Conspiracy) — On January 21, the Supreme Court will hear oral arguments in Petrella v. Metro-Goldwyn-Mayer. Though the issue involves laches, the case arises out of a claim of copyright infringement, so you’re sure to hear about it in the next several weeks if you follow copyright issues. Here is an interesting and informative look at the issues here.

The Google Book project: is it fair use? — Attorney Barry Sookman has an excellent and thorough analysis of last November’s district court decision in the Google Books litigation. He follows that with some pointed questions about the court opinion.

My Songs = Your Instagram Photos. A New Trichordist Statement of Purpose — “Your average Internet user is being exploited in exactly same way that the artists are. You are being exploited by exactly the same companies. Ad supported piracy? What’s the difference from “shared endorsements”? They take something that belongs to you without your permission. They then sell advertising against it and keep all the money without letting you set the price—much less paying you a share of the revenue.”

Top MPAA Lawyer on Google’s Failures, Suing Kim Dotcom and Obama After SOPA (Q&A) — Interesting interview. “I’ve been in this game for close to 15 years dealing with the Kim Dotcoms of the world, by whatever name they call themselves. And they all position themselves as a champion of something because it doesn’t sell papers for them to position themselves for what they are — people who just slap together some crude technology to make as much money as quickly as they can before they get caught and then run and hide.”

Google’s Knowledge Graph Boxes: killing Wikipedia? — Here is another example of how Google embraces free and open to build its market share, and then uses the resulting dominance to close off competitors. “The sad irony is that Google is very much for-profit, while Wikipedia is non-profit. Google has donated several million tax-exempt dollars to support Wikipedia in the past, and the Wikimedia Foundation thought that was a lovely series of gifts at the time. But now, Google has figured out a way to take that same Wikipedia content and “import” it directly into Google’s own Knowledge Graph space, where it can be surrounded by advertisements that put money back in Google’s pocket. And if these recent Wikipedia traffic statistics are to be trusted, the shift of Wikipedia “knowledge” over to Google may be exactly what is simultaneously robbing Wikipedia of its readers.”

Understanding Media Markets in the Digital Age: Economics and Methodology — Highly informative. “Viewpoints on such topics as filesharing, copyright enforcement, and digital distribution strategies can be quite polarized. Further complicating the picture, empirical ‘research’ appears to support both sides of the issues on these topics, with one example being the fact that some studies suggest that piracy harms sales of artistic works while others seem to suggest that piracy may be beneficial toward these sales. But not all ‘research’ is created equal.”

Google’s Spymasters Are Now Worried About Your Secrets — Wait, are you telling me there might be a downside to this idea of “permissionless innovation”? “Google has turned once private data into a commodity routinely exploited for profit. No wonder these executives are now made uncomfortable when old-fashioned dictators appropriate the snooper culture of the new technology.”

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s. 1See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839).

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.

References   [ + ]

1. See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839).

Happy New Year, readers! I hope everyone has had a wonderful holiday season. Now it’s time to get back to work.

It Turns Out Shia LaBeouf Is Your Anti-IP Laws Messiah, Internet — 2014 starts out with a bang, with this brilliant take on a recent anti-copyright screed by actor Shia LaBeouf. Be sure to check out the author’s previous piece, How Copyright Law Gave us Star Wars, as well.

Blame Silicon Valley for the NSA’s data slurp… and what to do about it — One of the top stories of 2013 were revelations about widespread NSA surveillance. But as Andrew Orlowski points out here, the NSA is only following the lead of Google, et al.

TV Broadcasters Fire Back at Aereo’s Supreme Court Claims — Just before Christmas, TV broadcasters filed their reply brief in Aereo, where they are seeking Supreme Court review of the Second Circuit’s holding that the definition of public performance is technology-dependent. Aereo is in the stack of petitions the Supreme Court will look at during its first conference of the new year on January 10, and it was featured in a SCOTUSBlog Petition of the Day.

Living by the Pen — Turkish novelist Kaya Genç discusses some of the deep challenges he and other writers have faced, but ends on an optimistic note. “For more than ninety years of republican history Turkish freelancers had been silenced either by state institutions which employed them or by the lack of a proper literary market. But as I look around and try to see how other authors from my generation are doing nowadays, I see how they no longer share the old state ideas which make freelance authors suspect in the eyes of the intellectual community. On the contrary, they are increasingly joining the ranks of independent writers. I know, from experience, that it won’t be state patronage or employment by special institutions that will save them from the cold realities of pessimism, poverty and prosecution. No, don’t make them part of the state apparatus or turn them into ideologues or employ them as editors: if you want those writers to succeed, just pay them.”

Just How Long Should Copyright Terms Be? — A thought-provoking piece from Justin Colletti. “Recently, I read a blog post from a Duke University professor who laments that ‘Under current copyright law, we’ll have to wait until 2053′, for works such as On The Road, From Russia With Love, Funny Face, Atlas Shrugged and The Cat In The Hat to enter the public domainBut he never seems to fully explain to my satisfaction: Wait for what?

10 Great Internet Essays Condemning… the Internet — Paste Magazine rounds up some recent articles that take a critical look at the invisible technology of the internet.

Why TED is a Recipe for Civilizational Disaster — Not included in the list above, but along the same lines, is this recent TEDx talk by cultural theorist Benjamin Bratton. “Keep calm and carry on “innovating” … is that the real message of TED? To me that’s not inspirational, it’s cynical.”

How a Fabricated Story about Iron Maiden’s Love of Music Pirates Became Internet Truth — In case you missed it, last week saw the tech press breathlessly spreading a story about a band that “embraced piracy” to plan a tour. Except, as TechCrunch points out here, the story turned out to be fake.

Gibson Guitars On TV: How Props Master Danny Rowe Finds the Great Six-Strings on Nashville — Behind-the-scenes crew have the most fascinating jobs. Here, Gibson Guitars speaks with instrument wrangler Danny Rowe, who currently wrangles guitars for TV’s Nashville.

The Fascinating Method by which Megaupload Deleted Copyright Content without ever Deleting Copyright Content — The upcoming year is likely to bring new developments in the Megaupload criminal proceedings, though if what has gone on so far is any guide, then who knows what those developments may include. The DOJ publicly released hundreds of pages of evidence it had on Megaupload and its operations late last year, and here, Forbes digs into those bits that demonstrate how Megaupload operated behind a sham of DMCA compliance. Also check out the Southland Time’s editorial, Not Sitting on a Fence.

Cross-posted on the Law Theories blog.

Representing himself before the U.S. Court of Appeals for the Tenth Circuit, Andrew Diversey has managed to set a very interesting precedent (opinion available here or here). Senior Circuit Judge Terrence L. O’Brien, writing for a unanimous panel, held that when a library adds a work to its collection, indexes it, and makes it available to library patrons, a distribution is deemed to have occurred even if there is no evidence that any patron actually accessed the work.

The underlying brouhaha concerned Diversey’s dissertation as a doctoral candidate at the University of New Mexico. Against his express wishes, two copies of his dissertation had been made available to the public in the school’s libraries. Diversey sued the school and several administrators for violation of his exclusive distribution right under Section 106(3).

Diversey’s opening brief before the Tenth Circuit was remarkably well-researched and well-written for a pro se advocate, and he cited the Nimmer copyright treatise at length in arguing that merely making a work available constitutes distribution. I wrote about the fact that the Nimmer treatise has changed its tune on the making available issue in a previous post, and I predicted that, given how influential Nimmer is in the copyright realm, others would follow. 1For the argument that Nimmer was wrong to change its tune on the making available issue, see Rick Sanders, Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vand. J. Ent. & Tech. L. 857 (2013).

And follow they did. Relying on the Fourth Circuit’s holding in Hotaling and the Nimmer treatise, the Court of Appeals reasoned:

As Diversey points out, § 106(3) explicitly protects the copyright owner’s exclusive right to distribute copies by lending. See Hotaling, 118 F.3d at 203 (“When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.”); 2 Melville Nimmer & David Nimmer, Nimmer on Copyright § 8.11[B][4][d] at 8–154.10 (2013) (“No consummated act of actual distribution need be demonstrated … to implicate the copyright owner’s distribution right.”). . . . The essence of distribution in the library lending context is the work’s availability “to the borrowing or browsing public.” See Hotaling, 118 F.3d at 203. 2Diversey v. Schmidly, 2013 WL 6727517 at *4-5 (10th Cir. Dec. 23, 2013).

The Tenth Circuit rejected the appellees’ argument that Diversey had to prove actual dissemination to the public:

The appellees argue [that] merely listing the work in the libraries’ catalog information system does not violate Diversey’s distribution right. They say Diversey must (but has failed to) allege the libraries actually distributed an unauthorized copy to a member of the public. They cite Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008) to suggest “‘§ 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.’” (Appellee’s Br. 14 (quoting Howell, 554 F.Supp.2d at 883).)

Howell does reflect some dissensus, particularly among district courts, about the applicability of Hotaling’s holding to cases of Internet file-sharing. We need not delve into the file-sharing issue today. Hotaling, like this case, involves a public library making “the work available to the borrowing or browsing public.” Hotaling, 118 F.3d at 203. A patron could “visit the library and use the work.” See id. This is the essence of a violation of the copyright owner’s exclusive right to distribute his work via lending. See 17 U.S.C. § 106(3); Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 52–66 (2011) (analyzing the legislative history regarding the distribution right and concluding the requirement of actual distribution of an unauthorized copy is unwarranted). 3Id. at *4 n.7 (citation omitted).

The applicability of the Hotaling holding to this case was pretty straightforward since both cases involved libraries lending out works to the general public. In Hotaling, the Fourth Circuit stated that distribution normally requires a showing that the work was actually disseminated to the public, but in the case of a library that keeps no records of public access to its works, it would unfairly prejudice the plaintiff to require any such proof of access. 4See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997). Thus, the evidentiary issue was central to the Fourth Circuit’s holding.

Interestingly, for the argument that distribution requires actual dissemination, the Hotaling court cited the Eighth Circuit’s opinion in National Car 5See Nat’l Car Rental Sys., Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426, 433-34 (8th Cir. 1993). and the Nimmer treatise. National Car, in turn, cited only the Nimmer treatise for that proposition. So the notion in the Fourth and Eighth Circuits that distribution typically requires actual dissemination can be traced back to earlier versions of the Nimmer treatise. As I said in that previous post, it really is hard to exaggerate just how influential Nimmer is in copyright law.

Now we have the Tenth Circuit relying on the Nimmer treatise as well as the journal article by Professor Peter S. Menell, which was the impetus for the about-face on the making available issue in the Nimmer treatise. 6See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011). The Tenth Circuit here explicitly declined to discuss the applicability of its holding to the file-sharing context, but I think the answer there is fairly clear. Several district courts have declined to extend the holding of Hotaling to file-sharing cases, citing the general rule that actual dissemination is required and reasoning that the same evidentiary problem found in the library context may not obtain when it’s file-sharing. 7See Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981-85 (D. Ariz. 2008) (gathering cases).

But the Tenth Circuit here has unequivocally adopted Nimmer’s new tune, which states that merely making the work available to the public is sufficient to constitute distribution. And it approvingly cited Professor Menell’s article, which reaches the same conclusion. Moreover, the Tenth Circuit adopted Hotaling’s holding without mentioning the underlying evidentiary rationale applicable in the library context that led other courts to distinguish its holding in the file-sharing context. While the Tenth Circuit did not address whether its holding would apply to file-sharing, it’s really difficult to see how it would not.

Follow me on Twitter: @devlinhartline

References   [ + ]

1. For the argument that Nimmer was wrong to change its tune on the making available issue, see Rick Sanders, Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vand. J. Ent. & Tech. L. 857 (2013).
2. Diversey v. Schmidly, 2013 WL 6727517 at *4-5 (10th Cir. Dec. 23, 2013).
3. Id. at *4 n.7 (citation omitted).
4. See Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997).
5. See Nat’l Car Rental Sys., Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426, 433-34 (8th Cir. 1993).
6. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1 (2011).
7. See Atl. Recording Corp. v. Howell, 554 F.Supp.2d 976, 981-85 (D. Ariz. 2008) (gathering cases).

VMG Salsoul v. Madonna — No details here other than the fact that the appeal has been docketed by the Ninth Circuit, but I include it because I think this will become one of the more closely watched copyright cases of 2014. Last month, a district court held that Madonna’s use of a digital sample without permission in her song Vogue was not infringing. The court held that the sample lacked originality, and even if it were protected by copyright, the use was de minimis. The appeal marks the first time that a Circuit Court will be looking at the same issue as Bridgeport, (although at least one other federal district court and a state court have) a 2005 decision from the 6th Circuit that attracted considerable attention for its holding that digital samples are not analyzed under the substantial similarity test like other copyrighted subject matter.

Shady Toymaker Attempts to Run and Hide from Beastie Boys LawsuitSPIN magazine has the latest from the GoldieBlox saga. On Tuesday, the Silicon Valley startup dismissed all the corporate defendants from its lawsuit, so it now only targets artists and producers.

Art and Music are Professions worth Fighting for — Musician Blake Morgan has an excellent essay on the importance of art and music as professions. “Every profession has daunting risks. And yet I’ve never heard of anyone who’s been successful in any profession who went for it half way. We artists and musicians have the right to expect from our profession what others expect from their professions. That through hard work and determination, perspiration and inspiration, we’ll have the same fair shot to realize our dreams, answer our callings, support our families.”

Appeals Court Won’t Penalize NFL Network for use of Artist’s Logo — The Fourth Circuit released a fair use decision this week, holding that the appearance of a copyrighted Baltimore Ravens logo in historical photos and videos is not infringing. At one point, the court cited to a brief filed by the MPAA and International Documentary Association to support its statement, “For creation itself is a cumulative process; those who come after will inevitably make some modest use of the good labors of those who came before.”

Sovereign Immunity and Copyright Law — Jonathan Bailey discusses a topic that I know everyone is excited to learn about more. But seriously, the issue of sovereign immunity may not pop up all that often, but it is worth knowing, especially for creators who work with state institutions like universities.

In Memoriam: Remembering the Photographers we Lost in 2013 — Time pays tribute to those photographers who passed away this year. “For photographers, the camera is a tool of existential negotiation. Regardless of the genre in which they work, they use the camera to mediate what is before them with what lies within. The best pictures are not a statement of fact, but a fully formed and articulated opinion.”

For over six years, the Electronic Frontier Foundation (EFF) has been doggedly pursuing Universal Music for a DMCA takedown notice that removed a 29 second clip of a dancing baby from YouTube for approximately six weeks. The case is currently in front of the Ninth Circuit on appeal. The EFF has soldiered on for so long in order to create a precedent that copyright owners should be punished if they make one wrong step protecting their works in order to stop what some call “rampant abuse” of the Digital Millennium Copyright Act (DMCA) notice-and-takedown provisions. Yet if the EFF is successful, it will create a much bigger burden to creators who are already overburdened keeping their works from being exploited by illegitimate sites.

The story is probably familiar to most readers. In 2007, mother Stephanie Lenz filmed her toddler dancing in the kitchen while Prince’s “Let’s Go Crazy” played on a radio in the background. Lenz uploaded the half a minute clip to YouTube. Universal Music, the administrator of Prince’s musical composition copyrights, regularly monitored YouTube for infringement of Prince works. After a brief review of Lenz’s clip, Universal sent a takedown notice to YouTube, which YouTube complied with. The EFF soon came calling, and helped Lenz submit a counternotice to YouTube to restore the clip online. Lenz then filed suit claiming that Universal knowingly made a material misrepresentation that Lenz’s video was infringing in its takedown notice, a claim that is actionable under 17 USC § 512(f).

Years of discovery followed. This past January, the district court denied both parties’ summary judgment motions on Lenz’s. Few would argue that sending a takedown notice because a poor quality version of a portion of a song appears in the background of a home video is a smart thing to do. The question is whether it gives rise to legal liability.

The court said that the DMCA’s requirement of a good faith representation that a use of a work is not authorized by law demands, at a minimum, an initial assessment of whether the fair use doctrine applies. But it rejected the EFF’s argument that failure to consider fair use by itself is sufficient to establish liability under § 512(f). The court relied on the Ninth Circuit’s earlier decision in Rossi v. MPAA, which held that the “good faith belief” requirement in the DMCA encompasses a subjective standard (that is, whether it is reasonable from the perspective of the actual individual), not an objective standard (that is, whether it is reasonable from the perspective of a hypothetical “reasonable” observer), and “[a] copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake.” 1391 F. 3d 1000 (2004). Thus, the statute requires actual knowledge that a material misrepresentation had been made.

The EFF also argued that Universal’s failure to thoroughly consider fair use amounted to willful blindness – a form of actual knowledge under the law. As the court notes, the Supreme Court recently defined willful blindness as a subjective belief that there is a high probability that a fact exists combined with deliberate actions to avoid learning of that fact. 2Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011). The court rejected the EFF’s contention that the Prince song playing in her video was “self-evident” fair use, saying, “A legal conclusion that fair use was ‘self-evident’ necessarily would rest upon an objective measure rather than the subjective standard required by Rossi.” Ultimately, however, the court did not see enough evidence from either side to make a ruling as a matter of law at this stage in the proceedings. Both sides appealed.

512(f) and the proper standard

The DMCA in part provides a safe harbor from liability for infringing material uploaded to online service providers by third parties for purposes of storage if (among other requirements) those service providers remove the material upon notice by the copyright owner. The statute spells out what information is required on such notices, information that includes “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” 317 USC § 512(c)(3)(A)(v). The statute also creates a cause of action against “Any person who knowingly materially misrepresents under this section … that material or activity is infringing.”

Rossi is the leading case interpreting these provisions. Michael J. Rossi owned the internet site “internetmovies.com” that boasted “Join to download full length movies online now! new movies every month”; “Full Length Downloadable Movies”; and “NOW DOWNLOADABLE” – it also included graphics of a number of MPAA member studio films. Upon discovering the site, the MPAA sent a takedown notice to Rossi’s ISP, which complied. The MPAA hadn’t attempted actually downloading any films from the site before sending the takedown notice, and apparently the site, despite its claims, did not contain any infringing material. Rossi sued for, among other things, misrepresentation under § 512(f), arguing that the MPAA should have known the site did not infringe.

The Ninth Circuit disagreed with Rossi, and held that the DMCA encompassed a subjective standard for two reasons. First, courts have traditionally interpreted the phrase “good faith” in other statutes as indicating a subjective standard. Second, the structure of the DMCA suggests Congress intended a subjective standard.

Juxtaposing the “good faith” proviso of the DMCA with the “knowing misrepresentation” provision of that same statute reveals an apparent statutory structure that predicated the imposition of liability upon copyright owners only for knowing misrepresentations regarding allegedly infringing websites. Measuring compliance with a lesser “objective reasonableness” standard would be inconsistent with Congress’s apparent intent that the statute protect potential violators from subjectively improper actions by copyright owners.

Rossi is on solid grounds, both for legal reasons and for policy reasons. As one recent court said, “The high standard for a § 512(f) claim reflects the reality that copyright owners face an uphill battle to protect their copyrights on the internet. … Without the subjective standard, copyright owners … could face limitless lawsuits just by policing [their] copyrighted material on the internet.” 4Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012). The EFF’s primary argument for seeking an objective standard is based on a California district court case that was released before Rossi.

The EFF’s argument that copyright owners must consider fair use before sending takedown notices fails for an even more fundamental reason. Fair use is an affirmative defense, meaning the onus is on a defendant to raise it. It would be unusual — not to mention near impossible — to require a plaintiff to anticipate any possible defenses a defendant might decide to raise and then consider them.

An example illustrates the problems that arise from this approach. To bolster its argument that “Based on the facts readily available to it, Universal should have known Ms. Lenz’s video was lawful,” the EFF stitches together case holdings from the Ninth Circuit, the Second Circuit, the Southern District Court of New York, and the Central District Court of California. It also cites to one case that came out five years after Universal sent its takedown notice.

The EFF has inadvertently revealed the fatal flaw in its argument here. Its legal analysis that should make fair use obvious to a reasonable person only works if the analysis takes place in some sort of conglomerate circuit court. But that’s not how things work in the real world. The fact is that fair use is not so much a legal determination as it is an adjudicated determination, one far outside the narrow scope of § 512(f).

DMCA abuse and perspective

That’s not to say there isn’t abuse of DMCA takedown notices, nor that § 512(f) shouldn’t work to prevent such abuse.

There are certainly examples of bad actors sending takedown notices for sites or content that is not infringing or likely not infringing for purposes of harassment, suppressing criticism, or stifling competition. This is obvious abuse, and this abuse reflects poorly on the vast majority of copyright owners who don’t abuse the DMCA process.

(There is also a lot of other stuff that isn’t abuse but categorized as such nevertheless. This may include takedowns that are a result of either overzealous or inexperienced/mistaken creators, or automated processes. Technical processes are constantly improved, and copyright owners have incentives to makes sure they are accurate since they generally don’t want to spend time and resources going after works that don’t harm their own property. As for overzealous enforcement, many copyright owners have found that the bad PR that results from too heavy a hand in sending takedown notices is not worth it.)

Abusive takedown notices receive a lot of attention, amplified by groups like the EFF to be sure, but how big of a problem are they within the larger picture?

A recent paper by Prof. Bruce Boyden provides one data point. In The Failure of the DMCA Notice and Takedown System, Boyden notes that from March to August 2013, the MPAA sent 25.2 million DMCA notices and received a total of eight counternotices claiming the targeted work did not infringe or was fair use or otherwise authorized. Not eight million — just eight.

Google’s own amicus brief in this case states it receives “hundreds of notices” that are not targeted at infringement. That’s a lot to be sure, but Google also receives nearly 24 million notices in total every month.

During last week’s public meeting on the USPTO Green Paper, the EFF’s Corynne McSherry made reference to a story that made waves earlier this year, involving several DMCA takedown notices intended for infringing copies of the television show Homeland targeting copies of Cory Doctorow’s book by the same name. The rhetoric certainly made it sound like a disaster: Doctorow’s book was “shut down” by “overzealous” takedowns, his novel “censored” by a veritable “dragnet.”

But take a closer look at the actual takedown notices that were at issue. Contained on them was not just URLs to copies of Homeland by Cory Doctorow but also URLs to copies of the TV show Homeland, as well as other television shows owned by the same copyright owner. Lots of URLs. One takedown notice has four links to Doctorow’s work out of around ten thousand total links. Another has sixty-two out of over 4,200 total links. A third has three out of around 9,600 total links. The “dragnet” captured a couple dozen copies of Doctorow’s book out of over 20,000 total URLs.

So we can ask two questions. Do we want to see noninfringing content become temporarily inaccessible at certain web sites? 5I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page. Of course not. But, at the same time, is a greater than 99.8% accuracy rate acceptable, especially when you’re dealing with tens of millions of notices a month?

Abusive takedowns are a problem, certainly, but they are a problem that exists at the far margins of the notice and takedown system. Seeking solutions could be a helpful discussion, but solutions shouldn’t come at the expense of the overwhelming majority of legitimate notices that are sent.

What shape would these solutions take?

Solutions, should they be needed, could come from the private sector. Because of the way courts have interpreted the DMCA, the burden falls almost exclusively on creators to identify infringing works. Service providers have little responsibility in cooperating with copyright owners to detect and deal with online copyright infringement, as Congress intended when it drafted the statute. 6Senate Report 105-190 at 20 (1998). That cooperation could include mitigating abusive notices since both service providers and copyright owners are motivated to prevent them. Unfortunately, many service providers have taken a minimal, hands off approach to the DMCA, doing little more than responding to takedown notices when they arrive. If service providers played a more active role in protecting creative works, perhaps the more egregious abusive takedowns could be prevented. This might be accomplished by incorporating best practices into voluntary initiatives or building more effective technical measures. Increasing transparency and streamlining internal appeals processes.

They might also come from government. The Copyright Office released a report on copyright small claims September 30, 2013. The report examined alternatives to litigation in federal courts that would be more accessible to individual creators with limited resources. The Office recommended a streamlined, voluntary administrative tribunal that would hear infringement claims with amounts at stake under a certain monetary threshold. The goal of such proceedings would be to afford effective remedies when federal litigation is resource prohibitive.

Interestingly, the Copyright Office proposes that the tribunal hear not only infringement claims, but also claims of misrepresentation in DMCA takedown notices or counter notifications under section 512(f). 7It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.” The challenge with implementing the small claims court would be providing a process that is accessible to the general public without opening the door to a flood of frivolous or vexatious claims, but if that balance can be struck, the availability of hearing 512(f) claims may help address those rare cases of abuse that currently go unaddressed and relieve some tension in copyright debates.

Conclusion

The EFF spends much of its brief appealing to free speech values. 8Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58. But courts should also be mindful of the free speech values that meaningful copyright protection promotes, and the chilling effect that the tidal wave of online infringement has on creators. As Susan Cleary of the Independent Film & Television Alliance said at a panel last week on creating a multistakeholder process to identify ways to improve the notice-and-takedown process, the game of whack-a-mole itself may be fun, but playing whack-a-mole with online infringement is not so much fun when it prevents your ability to finance your next film. Throwing up barriers against speech being made in the first place — especially speech from independent and niche voices — is a far graver threat to free speech then the temporary inaccessibility of already existing speech on a single website.

References   [ + ]

1. 391 F. 3d 1000 (2004).
2. Global Tech. Appliances, Inc. v. SEB SA, 131 S.Ct. 2060, 2070 (2011).
3. 17 USC § 512(c)(3)(A)(v).
4. Ouellette v. Viacom Int’l, Inc., No. CV 10-133-M-DWM-JCL (D. Montana, April 25, 2012).
5. I’m certain that despite Doctorow’s novel being removed from sites like “http://tpb.5gg.biz”, it was still readily available at other sites, like Doctorow’s own home page.
6. Senate Report 105-190 at 20 (1998).
7. It’s unclear to me what remedies would be available under the draft legislation provided in the report. § 1403(c)(3) limits remedies in proceedings involving 512(f) claims, which I presume are not “infringement” claims, to “those available under this chapter.” But §1404(d)(1)(C), which sets remedies for claims other than copyright infringement, says damages “shall be awarded in accordance with applicable law.”
8. Though it oversteps when it says that private actors can violate the First Amendment. Pg. 58.

Starting the Conversation on Copyright Issues in a Digital Age — Yesterday, the Department of Commerce held a public meeting to discuss issues it raised in last July’s green paper on Copyright Policy, Creativity, and Innovation in the Digital Economy. I have a full write up on the panels at the Copyright Alliance site with links to archived video of the event and additional background materials.

Hurd at Content Protection Summit: Google, Corporations Can Help Stop PiracyWalking Dead Executive Producer Gale Anne Hurd said Google and major brands could do more to minimize filesharing and ad-sponsored piracy at a recent event. Said Hurd, “I don’t buy into the philosophy that piracy helps [the business] … It creates a habit and I don’t think it’s something we should encourage.”

Oral Argument in Oracle v. Google: A Setback for Google? — Lee Gessmer has another excellent post covering the appeal in Oracle v. Google. Though it’s rarely wise to predict case outcomes from oral arguments, the judge’s questions did suggest vulnerabilities in Google’s arguments.

MPAA Studios Sent 25 Million DMCAs in Six Months, Only Eight Were Contested — Torrentfreak picks up on a interesting statistic from Bruce Boyden’s recent DMCA paper released by the Center for Protection of Intellectual Property: the Motion Picture Association of America only received 8 counter-notices from the 25 million takedown notices it sent in the past six months. This suggests a nearly 100% accuracy rate.

Review of streaming TV issue urged — SCOTUSBlog reports on Aereo’s rebuttal to the broadcaster’s cert petition, which somewhat unusually urges the Court to review the case even though Aereo won at the Second Circuit. Broadcasters have 10 days to file a reply brief, at which point the Court will consider the petition at its next conference, though that is not likely to be until January due to the holidays.

Silicon Valley Kings Write Half-Assed Outrage Letter to NSA — “It only took half a year for the un-beating heart of America’s tech sector to show any unified opposition to NSA dragnet techniques: ReformGovernmentSurveillance.com is a lazy piece of PR dreck—and about as transparently self-serving as it gets. Of course, companies like Google and AOL—which stay in existence by trading in private information—don’t want competition.”

Legal Theory Lexicon: Consent — A longer version of “permission is a foundation of a free civilization.”

Any given Sunday: inside the chaos and spectacle of the NFL on Fox — Read this amazing behind-the-scenes look from the Verge about what goes into a typical TV broadcast of a professional football game: the investment in technology, the employees who can only pull it off after developing their skills and talents. To wit: “Kevin Callahan, Fox’s director of technical operations, estimates Fox credentialed between 150 and 200 people for the weekend, from Troy Aikman and director Rich Russo to runners and microphone holders. The network brings in about $25 million worth of equipment, with thousands of individual parts.”

David Lowery: Silicon Valley must be stopped, or creativity will be destroyed — Love or hate the idea of an artist actually speaking out, David Lowery has provide much food for thought over the past year. He is in top form in this interview with Spin, particularly here where he is talking about resistance to making the internet more ethical: “That would be like in the Industrial Revolution saying, ‘You can’t have a non-polluting factory; you can’t have a factory that doesn’t have child labor; you can’t have a factory that’s safe to work in.’ Of course you can! We’re the fucking masters of our own destiny, we pass the laws for this country, we create this country, we decide what kind of a society we’re going to have — not the Internet.”

Silicon Chasm — How bad is Silicon Valley? The extreme economic inequality present there shocks even Laissez-faire conservatives.

Best photos of the year 2013 — Beauty, tragedy, hope, sorrow: the range of human experience is captured by photographers. I couldn’t get through all these in one setting because of how powerful they are, but it is worth it — not just to see the images but also to read the observations from the photographers themselves.

The Failure of the DMCA Notice and Takedown System — Bruce Boyden has released a new paper with the Center for Protection of Intellectual Property that details the Digital Millennium Copyright Act after fifteen years. “A tool that was originally designed as an emergency stopgap measure, to be used in isolated instances, is now expected to manage infringement on a persistent, ubiquitous, and gargantuan scale.”

Thom Yorke Calls Himself a ‘Luddite and Proud of It’ in Spotify Debate — The only people who think “Luddite” is an insult are people whose exploitative machines are being smashed. As Spin points out, the Luddites “weren’t anti-machine — they were against low-paying bosses, against being put out of a job in the name of efficiency, you name it.”

This morning, the Federal Circuit dove into the wild and wooly world of software copyright, hearing oral arguments in Oracle v. Google. The case between the two juggernauts could have enormous implications for the software industry, which contributes more than $260 billion to the U.S. GDP each year and employs 2 million U.S. workers.

Oracle licenses the programming language Java. 1Which it acquired after purchasing the original creator of Java, Sun Microsystems, in 2010. To keep things simple, I’ll use “Oracle” throughout this article to refer to Oracle or Sun. One of the key features of Java is the Java Virtual Machine, which enables Java programs to run on any platform – a software developer can “write once, run anywhere” using Java.

To facilitate development of Java applications, Oracle also created a set of packages, or APIs. Each package is made up of multiple classes, and each class consists of a set of methods, each of which performs a specific function. Rather than writing a specific function from scratch, a Java developer can simply drop in a reference to the API.

While Google had become dominant in the desktop world by the mid 00’s, it was facing a lot of competition in the quickly growing mobile space. It acquired Android, Inc., in 2005 for the mobile software platform the company was developing, and began discussions with Oracle to license the Java operating system in order to quickly tap into a community of developers to build up a universe of apps.

But after five years, negotiations fell apart. Undeterred, Google created its own virtual machine and packages, but also copied verbatim the declaring code of 37 of the most popular Java packages. Oracle sued for copyright and patent infringement.

The procedural history of the case so far is a bit complicated because of the complexity of the issues. The trial was broken up into phases to address the patent and copyright issues separately. During the copyright phase, the jury was told to assume that the code was copyrightable to determine whether Google infringed the API packages, whether the infringement was fair use, and whether any copying of other snippets of code was de minimis. The trial court would later determine whether, as a legal matter, the code actually was copyrightable – the thinking was that this sequence would avoid a retrial if the judge found the code was not copyrightable and an appeals court reversed; the appeals court could then simply reinstate the jury’s verdict.

The jury found that (assuming the code was copyrightable) Google had infringed the 37 Java API packages but deadlocked on the fair use question. It also found that all snippet copying was de minimis except for one, a snippet named “range-Check.”

However, when the court then looked at copyrightability in the first instance, it held that Google had not copied anything protected by copyright. It based its holding first on the fact that Google had not copied the code that implemented methods from Java. Second, the “structure, sequence and organization” of the 37 packages that Google did copy from Java – amounting to over 7,000 lines of code – was not copyrightable because the court considered it a “system” or “method of operation,” both of which are not copyrightable under Section 102(b) of the Copyright Act.

Oracle appealed the decision to the Federal Circuit, which must determine whether the statutory copyright protection for software extends to source code and the structure, sequence and organization of the Java packages that Google admits to copying and whether that copying qualifies as fair use. Affirmation would endorse the type of free-riding Google engaged in here and erode the ability of software creators to invest in the constant innovation that drives this vibrant sector.

When does copyright protect software?

Software is protected under the Copyright Act as a “literary work.” Figuring out what exactly is protected and is not protected, however, can quickly become complicated, as application of copyright’s doctrines occur at a much more conceptual level than other subject matter. For example, copyright protects form, not function 2Mazer v. Stein, 347 US 201 (1954). – but how is that applied to software code, all of which performs some sort of function?

The district court’s holding that Google only copied nonprotected “methods of operation” seems most vulnerable on appeal. The court itself even admitted that “nothing in the rules of the Java language . . . required that Google replicate the same groupings.” Any concerns that protecting Oracle’s expression in its Java packages would prevent other developers from the underlying functional ideas are overstated. Indeed, Google was here able to deliver the same functionality without copying the Java implementations.

It’s difficult also to see how the interoperability argument holds up: Java and Android are not interoperable. Oracle’s appellate brief points out that this, in fact, is one of the primary reasons the two parties failed to reach a licensing agreement: “Google wanted to be the only company ever allowed to use the Java packages commercially without making its implementation compatible with the Java virtual machine and therefore interoperable with other Java programs.” The reason Google copied the 37 packages was to attract app developers more easily, not to create a compatible product. At the very least, the question of interoperability should be addressed as part of the larger fair use inquiry, not under the threshold question of copyrightability.

Last week, IP attorney Lee Gesmer discussed some further legal nuances in the case that are well worth a read.

In the end, a win for Google at the Federal Circuit would not, as some have said, be a win for innovation and interoperability – just the opposite, in fact. A win would create a preference for copying and free-riding over innovation. And, as stated above, the copying here created less interoperability rather than more.

This is especially concerning because of how Google increasingly operates. Some have suggested that Google uses open source as a “Trojan Horse” for locking users into its own closed ecosystem. That is, it creates an open space that is freely available to jump start its marketshare, than slowly creeps toward closed systems as it increases dominance. Last month, Rom Amadeo discussed this in an Ars Technica article, Google’s iron grip on Android: Controlling open source by any means necessary. Amadeo said:

While Android is open, it’s more of a “look but don’t touch” kind of open. You’re allowed to contribute to Android and allowed to use it for little hobbies, but in nearly every area, the deck is stacked against anyone trying to use Android without Google’s blessing. The second you try to take Android and do something that Google doesn’t approve of, it will bring the world crashing down upon you.

Judges seemed skeptical of Google’s argument this morning, but a ruling is not expected for several months.

References   [ + ]

1. Which it acquired after purchasing the original creator of Java, Sun Microsystems, in 2010. To keep things simple, I’ll use “Oracle” throughout this article to refer to Oracle or Sun.
2. Mazer v. Stein, 347 US 201 (1954).
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