Sunday, January 26, 2014

Why Google Books is probably fair use but Android's hijacking of Java is clearly not

While the United States Court of Appeals for the Federal Circuit gave every indication at a December hearing that the grossly erroneous non-copyrightability holding in Oracle v. Google will be reversed, it's simply not possible to predict whether the appeals court will resolve (through judgment as a matter of law) or remand (with the potential need for another jury trial) Google's "fair use" defense. I really believe the Federal Circuit has all the facts in the case record that it can enter JMOL because no reasonable jury (and that 2012 jury simply wasn't reasonable, except for its smart foreman) could have found otherwise. But appeals courts tend to defer to juries on a lot of things even if they disagree with a jury's conclusions. So we don't know. With a view to the upcoming ruling I'd like to talk a little more now about the concept of fair use and its reasonable boundaries.

In May 2012 I already stated in no uncertain terms that I didn't buy Google's "fair use" defense in the Android-Java case. Nothing has changed about that assessment, nor is there a need to reiterate that position. I would, however, like to look at it from a different angle this time around. The highest-profile pending case centered around fair use (while Oracle v. Google is also very high-profile, the make-it-or-break-it question of the appeal was copyrightability) is the "Google Books" case, The Authors Guild, Inc., et al., v. Google Inc., which was dismissed on November 14, 2013 by United States Circuit Judge Denny Chin, sitting by designation on the United States District Court for the Southern District of New York. After the United States Court of Appeals for the Second Circuit had remanded the case to the Southern District of New York with the instruction to adjudicate the fair use defense first (Second Circuit opinion, commentary by Professor Grimmelmann), Circuit Judge Chin -- acting as a district judge -- entered summary judgment in Google's favor on the basis of fair use (summary judgment ruling).

I'm in favor of reasonably strong copyright, and I wrote a dozen books (most of them while in high school). So I used to be somewhat sympathetic to the cause of the Authors Guild, especially since my own experience in using Google Books was that I was amazed at the amount of third-party content it provides for free and on an unlicensed basis. But having looked at the case in more detail (with a view to the further proceedings in Oracle v. Google), I now tend to agree largely -- apart from some nuances -- with Circuit Judge Chin's summary judgment ruling, for reasons that relate to the fundamental difference between the parameters of the Google Books case on the one hand and the Android-Java case on the other hand.

At first sight, I found it troubling that the judge found the publication of scanned books "highly transformative". And one of the nuances I tend to disagree with is the term "highly". But after some reading and further thought I actually think it is appropriate, all things considered, to describe as "transformative" a type of use of copyrighted works that is not content-transformative such as a rap parody of a rock ballad. Thumbnail images of copyrighted photographs have previously been deemed "transformative", such as in Perfect 10, Inc. v., Inc. (Google was Amazon's co-defendant). So this holding is not based on a narrow, content-centric understanding of transformation, but that's consistent with the statute (17 U.S.C. § 107), which defines the first "fair use" factor as follows:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

As inclusive as the statute may seem, I find it easiest to see the point in allowing transformative use in connection with a case like Campbell v. Acruff-Rose Music, which was about the 2 Live Crew's rap parody of Roy Orbison's Pretty Woman. It matters a lot to me that these are two distinct music genres. I really like the following description of "transformative" use in the Supreme Court's Campbell ruling:

"The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely 'supersede[s] the objects' of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 ('supplanting' the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is 'transformative.' Leval 1111. Although such transformative use is not absolutely necessary for a finding of fair use, Sony, supra, at 455, n. 40, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, see, e. g., Sony, supra, at 478–480 (Blackmun, J., dissenting), and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."

I prefer transformation of the kind that is very distinct from copying, but I also understand that technological progress may in some contexts justify types of use that are less creative than, for example, a parody. Google has clearly been pushing the envelope in terms of deriving benefits from § 107 (1) through technology-centric rather than content-centric interpretations of the first factor. In the thumbnail images context, I'm definitely in favor: it's the only way to make image search work. On Google Books, I also come down on Google's side, though not without some reservations remaining. It's true that Google Books "uses snippets of text to act as pointers directing users to a broad selection of books" and that it enables "substantive research, including data mining and text mining in new areas, thereby opening up new fields of research" (for example, the decision mentions that "researchers can track the frequency of references to the United States as a single entity ('the United States is') versus references to the United States in the plural ("the United States are") and how that usage has changed over time". I wouldn't necessarily call it "highly transformative" and, as a user, felt that the "snippets" Google makes available are rather long considering that this is unlicensed use (by the way, Circuit Judge Chin concluded that the third factor "weights slightly against a finding of fair use", sharing my concern even if not to the same degree). That said, I'm glad that Google Books exists.

Google's defense of innovative business models has in some areas done the world a great service and I applaud it. But too much of a good thing can be a total disaster, and Google's positions on Android's use of Java are far outside the scope of any reasonable definition of fair use.

In Java's case, since it was already available for mobile devices, it wasn't really "transformative" to make it available on an unlicensed basis in yet another mobile platform. This is closely related to the fourth fair use factor, the effect of the use in question on the potential market for or value of the copyrighted work. Circuit Judge Chin noted that "Google does not sell its scans, and the scans do not replace the books". It takes only this one sentence to distinguish the Google Books case from the Android-Java case. While Google may not "sell" Android in the most straightforward sense, it uses it directly for the generation of revenues, as opposed to the snippets displayed by Google Books, which are advertising-free. Also, it appears that Google does actually charge license fees for certain Android components. But the most important part is that "the [Google Books] scans do not replace the books", and Circuit Judge Chin takes it even further where he concludes that "a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders". Android, however, did replace -- actually, displace -- Java on mobile devices. And while Circuit Judge Chin determined that a reasonable jury couldn't identify anything other than a bottom-line benefit to copyright holders, District Judge William Alsup found in 2011 that "[o]n the present record, a reasonable fact finder could disagree with Google's rosy depiction of Android's impact on the Java market".

Google Books points potential customers to shops like Amazon where they can buy the full books. There's nothing like that in the Android-Java context. No end user will buy a Mobile Java phone (or tablet) after buying an Android phone (or tablet) because of a promotional or whatever other, even indirect, effect.

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