Friday, October 16, 2015

Appeals court deems Google Books 'fair use' but standard helps Oracle in Android-Java case

The United States Court of Appeals for the Second Circuit has just published its appellate opinion in the Google Books case.

Early last year I wrote that I had initially been rather skeptical of Google's "fair use" argument relating to Google Books, but ultimately I found myself in agreement with Google. Today's appellate opinion says: "This copyright dispute tests the boundaries of fair use." So the appeals court also didn't find this one a clear and simple case. But all things considered it sided with Google.

I use Google Books quite frequently, but for the purpoes of this blog, "fair use" is of particular interest in connection with only one case: Oracle v. Google, the Android-Java copyright infringement case (in which Oracle yesterday brought a motion to disqualify the court-appointed damages expert).

The Second Circuit won't hear an appeal in Oracle v. Google, but this high-profile case might be cited in the further proceedings, and I don't think it helps Google against Oracle in the slightest. Much to the contrary, the standard the Second Circuit outlines is one that Google cannot possibly meet in the Android-Java case. For example, here's a key passage from today's Google Books ruling:

"Google's division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs' books [...]"

(emphasis added)

In a nutshell, the above passage says:

  • If what Google does basically just has a promotional effect, right holders can't complain that Google helps them make more money.

  • But forget about "fair use" if there is a substitutive (rather than promotional) effect.

If one applies that standard to Oracle v. Google, it means that the "fair use" defense won't even survive the summary judgment stage: neither the device makers who have adopted Android nor the end users who (like me) have bought Android devices have looked at Android and then decided to use mobile Java. Instead, Android has displaced mobile Java all the way, with Java licensees like BlackBerry and Nokia having gone down the tubes while Android attained market dominance.

There are various differences between Google Books and the Android-Java case, and rather than talk about all of them at once, I just wanted to highlight the key difference in terms of commercial impact. But I also find the discusssion of "transformative use" interesting. The Second Circuit explains that the strongest fair use cases involve "copying from an original for the purpose of criticism or commentary on the original or provision of information about it." Android does none of that with respect to Java. Google Books is not about criticism or commentary, but one can search for books that contain certain terms, which is also information about the copied books:

"We have no difficulty concluding that Google's making of a digital copy of Plaintiffs' books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell."

Android's use of the Java APIs had no transformative effect: Java already was available on mobile devices.

Google Books is not the clear case of fair use (and, as one of the "fair use" factors, transformative use) as, for example, a rap parody of a Roy Orbison song (that's what Campbell was about). But compared to the Android-Java situation, it's a very solid case. And if a fair use case that is far stronger than any "fair use" argument could ever be in Oracle v. Google "tests the boundaries of fair use," then there is no way a reasonable jury could find in Google's favor in the Android-Java case.

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