The World Isn’t Fair

What does Oracle v. Google mean for the rest of us?

Everyone is abuzz about the verdict in Oracle v. Google a few weeks ago. After nearly six years of litigation, the two tech giants and the rest of us onlookers finally have an answer: Google’s use of Java’s APIs in creating its Android Operating System was fair use, and thus not a violation of copyright.

But how much of an answer has six years given us? Even putting aside the fact that Oracle has vowed to appeal, not much of one. As an intellectual property attorney at Mozilla, I obviously followed the case with a great deal of interest. In the days and weeks before the verdict, I had multiple developers ask if I was following the trial and my thoughts on the proceedings. They were all worried over what the implications would be if Google were to lose. And now that we’re on the other side with a jury verdict in favor of Google, many would like to believe that this clears the way for programmers to freely use APIs. While the fair use verdict is a lot better than the alternative, a lot more work will have to be done before we can all breathe a collective sigh of relief.

The limited reach of “fair use” decisions

One of the principal reasons that the Oracle v. Google verdict doesn’t provide the high level of confidence that developers may wish for is because the right to fair use is procedurally an “affirmative defense.” What this means is that, even though someone who engages in fair use of a copyrighted work is not an infringer, the burden is still on them to claim and establish their use as “fair.”

In addition, the test for fair use is very open ended. This is largely intentional, and helps ensure that fair use is flexible enough to cover a wide variety of scenarios, including those in the future we haven’t discovered yet. The down-side, however, is that determining fair use becomes highly fact-specific, which in turn makes it very difficult to predict with certainty. Indeed, fair use is generally considered to be what lawyers call a “question of fact” and not a “question of law” — hence why it went to a jury in Oracle v. Google. Add to this the reality that a different group of 10 men and women on a different day could have easily reached a different verdict, and you can start to understand why companies aren’t eager to bet the house on fair use. Professor Michael J. Madison dubs this the “Ex Ante Problem” of fair use:

Fair use is an ex post determination, a lottery argument offered by accused infringers forced to gamble, after the fact, that they did not need permission before. Lawyers bemoan the unpredictability that reliance on the four fair use factors brings. As many have noted, two of the three Supreme Court decisions on fair use were reached on closely divided votes. All three involved reversals at the intermediate appellate level and again at the Supreme Court level.

This cannot be the way anyone intends the copyright system to function. The rest of copyright law, as practitioners and scholars both know, is largely a matter of planning. A would-be “fair user” who asks counsel for advice on whether to seek permission or to seek refuge under § 107 inevitably is counseled to seek permission. Over time, this has the inevitable effect of training both producers and consumers of copyrighted works, and counsel, judges, and even members of Congress, that permission is not only a norm but a compelling norm. Fair use becomes not merely the exception but an extraordinary exception, to be dispensed only rarely and even then only by the grace of unpredictable authority.

Despite this, there are many businesses, services, and products over the years that could never get off the ground if not for fair use. Perhaps the most famous legal decision among these relates to making recordings of television shows for time-shifting purposes. But these decisions don’t provide some sort of blanket assurance. So despite a search engine’s victory in 2003 that its use of thumbnails in search results was fair use, the use of thumbnails were once again under fire in 2007, along with inline linking of images. And although the law has a special exception for libraries and archives to make and distribute an additional copy of some works, projects dedicated to digital preservation and digitization of copyrighted books for search have had to defend their uses as fair. And even though VCRs and Betamax were vindicated for time-shifting in 1984, it did little to save Aereo’s “cloud-based” time-shifting service in 2014. Although fair use was not at issue on appeal, the Supreme Court noted that the existence of the fair use doctrine led it to believe that its decision against Aereo would not “discourage or … control the emergence or use of different kinds of technologies.” Aereo filed for bankruptcy six months after its case was decided, in November 2014.

Shoot first, ask fair use questions later

The Digital Millennium Copyright Act (DMCA) is another example of how fair use’s impact is diminished due to procedure. The DMCA provides a process for copyright holders to request that an online service provider remove content stored on behalf of its users, by sending a Takedown Notice that includes a statement of “good faith belief that use of the material … is not authorized by the copyright owner, its agent, or the law.” After receiving such a notice, the service provider is obligated remove the content in question unless the user submits a Counter-Notice that the content should not have been removed. In exchange for complying with the procedures outlined in the DMCA, online service providers are entitled to “safe harbor,” meaning that they can’t be held liable for copyright infringement for the content of their users.

So whose job is it to ensure that fair use rights are protected in all this? Up until only recently, the DMCA’s notice and counter-notice procedure seemed to put the burden on the user who’s content was taken down. Some of us may remember the case of Stephanie Lenz, a YouTube user who back in early 2007 posted a twenty-nine second video of her 13-month old son dancing to Prince’s “Let’s Go Crazy”. Universal Music sent a DMCA Takedown Notice to YouTube, requesting that her video be removed as allegedly violating their copyright in the song. Ultimately, Lenz filed a lawsuit to protect her video from being taken down, and accusing Universal of failing to consider fair use before sending its takedown notice. The district court agreed with her in 2010, and the Ninth Circuit Court of Appeals affirmed in 2015 that copyright holders must consider fair use before they can send a DMCA Takedown Notice.

But this eight year answer hasn’t seemed to have much impact on takedown requests, which show no sign of slowing. According to one source, approximately 9% of YouTube videos are taken down due to copyright claims within the first 24 hours after being uploaded. The likelihood that all these claims are being made after taking into consideration fair use rights seems dubious, and there also been research and discussion on other abuses of the DMCA Takedown process. Thus, the burden has fallen upon a few companies, like WordPress and YouTube, to stand up for the fair use rights of their users. Those companies should be commended for taking this on because it is not a small sacrifice. They have arguably chosen to forego the safe harbor provided by the DMCA in those cases, and for YouTube, have even committed to covering up to $1 million towards the costs of defending against copyright suits that might be brought against the user. But is this really a healthy or sustainable model for ensuring fair use rights aren’t trampled?

How do we build a fairer world?

All this is my long-winded way of saying that Oracle v. Google will not be the last time the software development world faces this type of question.

I don’t want to see software go the way of audiovisual works: I don’t want to see the fair use verdict of Oracle v. Google be lost among a sea of future disputes over whether one developer’s specific use of an API or declaring code was fair or not, nor do I want to see only a few players burdened with the task of defending fair use for the rest of the software world.

But now that we are here, now may be the time to step up and ensure that future developers continue to enjoy the same level of openness, rather than be stymied by legal uncertainty. I won’t profess to know the best way to do this, but I do think it needs to be done. Because let’s face it — not all of us can afford to make the fair use gamble.