Google v. Oracle: The Copyright Case of the Century

The U.S. Supreme Court has taken up a major ongoing copyright battle between Google and Oracle over the ownership and use of application programming interfaces (APIs). The APIs allow computer programs to communicate with each other and specify how information is processed and shared.

In the lawsuit, Oracle claims that Google infringed on its copyright by copying the company’s APIs, whereas Google says no one owns the APIs. These APIs were created in 2006 by Sun Microsystems, a copy which Oracle purchased in 2009. Google used the code for the APIs when it created the Android operating system and says APIs are not original expressions that are protected by intellectual property law.

Google is arguing that Oracle is attempting to “control and own standard open source functions that all developers rely on to create software compatible with an established platform, like Java.” Multiple legal scholars have signed amicus briefs agreeing with Google’s position in this battle.

In 2012, Judge William Alsup of the Northern District of California ruled that APIs are not protected under copyright law, knowing that if they had ruled in Oracle’s favor, the company would have been allowed to tie up “a utilitarian and functional set of symbols” that is the basis for many of the programs we use today. Where “there is only one way to declare a given method functionality, [so that] everyone using that function must write that specific line of code in the same way,” coding cannot be copywritten.

Oracle appealed the ruling and the case moved to the U.S. Court of Appeals for the Federal Circuit. In 2013, computer scientists filed an amicus brief, asking the Federal Circuit to uphold Judge Alsup’s ruling. Instead, a year later, the Federal Circuit reversed Alsup’s ruling and said Java APIs are copyrightable.

A few months after the Federal Circuit’s ruling, Google filed a petition with the U.S. Supreme Court, asking them to review the ruling, and another amicus brief was filed by computer scientists, asking the Supreme Court to review the ruling and reverse the ruling, reinstating Alsup’s original ruling; the Supreme Court denied the petition.

This petition was denied in 2015, and the case went to trial in a district court where Google sought the fair use defense for the APIs, and the jury unanimously agreed with Google’s fair use defense in 2016. So, Oracle filed another appeal.

The Federal Circuit Court reversed the jury’s verdict in 2018, after having previously said that this was up to a jury to decide, and said that Google’s use of the APIs was not fair use. Google petitioned the court to rehear the case, and the Federal Circuit denied Google’s petition.

Google filed another petition in January 2019, asking the U.S. Supreme Court to review both of the Federal Circuit’s reversals. Finally, in November the Supreme Court granted Google’s petition. Oral arguments should begin in March, and we may have a decision by June.

The ruling in this case may end up being the deciding factor on exactly how much software can be subject to copyright laws, and it will likely define the way the fair use defense is used in the future.

“This is the copyright case of the century,” said Stanford law professor Mark Lemley, who has represented Google in copyright matters but isn’t speaking for the company in this case. “However it is decided, it has the potential to reshape not only software copyright law but copyright doctrine more generally.”

Having open APIS is what allows programmers to develop software that will work across platforms. It also allows them to update old programs, even if the program was abandoned by its developers. If the Supreme Court sides with Oracle, creating new programs will become much more expensive, people will become less interested in learning new programming languages, people will be trapped with outdated software that requires expensive upgrades, and it will become more difficult to break into the software market.

The Public Domain

 

The new decade will be bringing with it thousands of works into the Public Domain. The Public domain had been frozen in time for the last 20 years, because of the 1998 Copyright Term Extension Act, also known as the Mickey Mouse Protection Act, lengthened copyright protections by 20 years. Finally, on January 1, 2019, we began to see the public domain grow again.

What is the Public Domain?

The public domain refers to creative works that are no longer protected by intellectual property laws. Instead of the creator having ownership of these works, they are owned by the public and can be used by anyone without needing to obtain permission.

Work enters the public domain for four different reasons:

  • The copyright expired
  • Copyright law does not protect this kind of work
  • The copyright owner chose to place it in the public domain
  • The copyright owner did not follow the rules for the copyright renewal.

The public domain is what allows the countless adaptations of Shakespeare’s plays to be made without having to pay royalties. This is how we get the many adaptations of fairy tales; the television show Once Upon a Time is a prime example of how freely you can use fairy tales that are public domain.

Mickey Mouse Protection Act

In 1998, all work published before 1978 were entitled to 75 years of copyright protection, and work published on or after the date was protected for the creator’s lifetime, plus 50 years.

Mickey Mouse first appeared on screen in Steamboat Willie, in 1928, so it was going to enter the public domain in 2004. Disney, and others, urged Congress to extend copyright protection for an additional 20 years, keeping Steamboat Willie out of the public domain until 2024.

This ended up creating a 20-year hiatus of work entering the public domain, leaving a vacuum of the majority of the 20th Century out of the domain. The last works that entered the public domain were created in 1922, and everyone has to wait until 2019 for everything from 1923 to enter the public domain.

The 2020 Treasure Trove

The public domain has essentially become a time capsule that we will be exploring every year, finally seeing work from the Great Depression and World War II be released to the domain. This will go on until 2073 when those old copyrights will end, and we may see an even bigger deposit of work entering the domain.

Here are the works entering the public domain on January 1, 2020.

Books

  • The Land That Time Forgot and Tarzan and The Ant Man, both by Edgar Rice Burroughs.
  • The Man in the Brown Suit and Poirot Investigates by Agatha Christie
  • A Gentleman of Courage by James Oliver Curwood—among the bestselling books of the 1920s.
  • Call of the Canyon by Zane Grey
  • The Gift of Black Folk by WEB DuBois
  • So Big by Edna Ferber—the biggest fiction bestseller of the year.
  • The Home-Maker by Dorothy Canfield Fisher
  • A Passage to India by E.M. Forster
  • The Constant Nymph by Margaret Kennedy
  • Gerald Cranston’s Lady by Gilbert Frankau—this was made into a silent film the same year.
  • Diary of a Young Lady of Fashion 1764–65 by Cleone Knox
  • The Magic Mountain by Thomas Mann
  • Something Childish and Other Stories by Katherine Mansfield
  • Billy Budd by Herman Melvill
  • Dr. Doolittle’s Circus by Hugh Lofting (book 4 in the series)
  • The Dream Coach by Anne Parrish
  • The Treasures of Typhon by Eden Phillpotts
  • The Boxcar Children by Gertrude Chandler Warner
  • Precious Bane by Mary Webb
  • The Dream and The Story of a Great Schoolmaster by H.G. Wells
  • Desire Under The Elms by Eugene O’Neill
  • My Further Disillusionment in Russia by Emma Goldman
  • Edith Wharton’s The Old Maid
  • Twenty Love Poems and a Song of Despair by Pablo Neruda
  • We by Yevgeny Zamyatin
  • The Autobiography of Mark Twain by Mark Twain
  • Golden Wattle Cookery Book by Margaret Wylie

Movies

  • Buster Keaton’s Sherlock Jr. and The Navigator
  • Girl Shy and Hot Water starring Harold Lloyd
  • Shorts by Keaton, Laurel and Hardy, and “Our Gang” (later “Little Rascals”)
  • Fatty Arbuckle’s Stupid, But Brave
  • D. W. Griffith’s America and Isn’t Life Wonderful
  • Clark Gable’s first appearances, White Man (now lost) and Forbidden Paradise
  • The first film adaptations of Peter Pan and The Age of Innocence
  • The first films produced by MGM, including He Who Gets Slapped and Erich von Stroheim’s Greed
  • A silent version of Dante’s Inferno that borrows the “shown the error of his ways” plot from A Christmas Carol.
  • The Thief of Bagdad starring Douglas Fairbanks

Music

  • George Gershwin’s Rhapsody in Blue
  • Erik Satie’s ballet Relâche
  • Jean Sibelius’s Symphony no. 7
  • Arnold Schoenberg’s opera Die glückliche Hand (The Hand of Fate)
  • Giacomo Puccini’s opera Turandot

 

 

Ribeiro’s Dance Battle with Fortnite is Over for Now

Last year we discussed Alfonso Ribeiro’s lawsuit against Epic Games, the makers of the video game Fortnite for using the “Carlton Dance” he did when starring on “The Fresh Prince of Bel-Air.” There was a question of whether or not the Carlton was considered to be choreography or pantomimes, since those are the only types of dances that are copyrightable, and if it was considered those, did it also fall under “social dance steps and simple routines.”

In his lawsuit, Ribeiro had alleged that Fortnite was using his dance without permission or compensation. The dance was one of over 100 that Fortnite players can buy for their characters, each costing around $5, thus the game earned millions off of these dances.

His lawsuit had said “The reaction from many players worldwide was immediate recognition of the emote as embodying The Dance and, in turn, Ribeiro. Indeed, by naming the emote ‘Fresh,’ Epic intentionally induced a direct connection between the in-game purchase and the show where The Dance started, The Fresh Prince of Bel-Air.”

Ribeiro also filed a similar suit against Take-Two Interactive, the makers of NBA 2k, for using the Carlton as a victory dance. Take-Two filed a defense against it, requesting the suit be dismissed, arguing that the dance is too basic to be protected by copyright law. The Copyright Office agreed with this assessment when they denied Ribeiro’s request to copyright the dance in February. The copyright office explained that they denied his request because the three dance steps that the Carlton is comprised of are not enough to register the dance as a work of choreography.

“The dancer sways their hips as they step from side to side, while swinging their arms in an exaggerated manner,” wrote Saskia Florence, a member of the Copyright Office’s Performing Arts division. “In the second dance step, the dancer takes two steps to each side while opening and closing their legs and their arms in unison. In the final step, the dancer’s feet are still and they lower one hand from above their head to the middle of their chest while fluttering their fingers. The combination of these three dance steps is a simple routine that is not registrable as a choreographic work.”

Another factor in the Copyright Office rejecting Ribeiro’s lawsuit, because he had used the Carlton dance in a performance on Dancing with the Stars. This led to the question of if perhaps ABC has the rights to it, or even Ribeiro’s dance partner for the performance, Witney Carson.

After the copyright was denied, the makers of Fortnite moved to have Ribeiro’s case against them dismissed. Just a few weeks later, Ribeiro filed documents to voluntarily dismiss his lawsuits against Epic Games and Take-Two. Since he voluntarily dismissed the suit without prejudice, this means it can be filed again later, so if Ribeiro is able to copyright the dance somehow in the future, he can file the suit again.

After dropping the case, Ribeiro’s lawyer, David Hecht said, “We will continue to vigorously fight for our clients’ rights against those who wrongly take their creations without permission and without compensation.”