My Latest Amicus Brief For EFF

This week, EFF filed an amicus brief on which I worked, in the long running case of Oracle v. Google.  Some background: In 2014, the Federal Circuit reversed a trial court ruling that the Java APIs used by Google are not copyrightable, and sent the case back for a trial on Google's fair use defense.  In May 2016, a jury found that Google's use of the Java APIs was a fair use.  Oracle again appealed.  In March 2018, a three judge Federal Circuit panel overturned the jury verdict and held that Google's use was not a fair use as a matter of law.  Taken together, the 2014 and 2018 Federal Circuit opinions mean that APIs are both copyrightable and will rarely be available as a fair use.

Google filed a petition for rehearing en banc, to ask all of the active judges of the Federal Circuit to rehear the opinions by the three judge panel.  EFF's amicus brief supports Google's petition.  If the petition is denied, Google will likely ask the Supreme Court to review the case. 

My Latest EFF Amicus Brief: Cisco v. Arista

Over the holidays, EFF filed the latest amicus brief I helped write.  The brief was in the computer software copyright case of Cisco Systems v. Arista Networks.  EFF's blog post about the brief is here.

Update: Jon Band has written this blog post about the amicus briefs supporting Arista.

My Latest EFF Amicus Brief

Yesterday EFF filed the latest amicus brief I helped write.  The brief was in the long-running Oracle v. Google case.  EFF's blog post about the brief is here.

My Latest EFF Amicus Brief: 77 Computer Scientists Ask The Supreme Court To Review Oracle v. Google

Last Friday, EFF filed the latest amicus brief I helped write, in the Oracle v. Google case.  The case involves Oracle's claim that Java's Application Programming Interfaces (API) are copyrightable.  Generally speaking, APIs are specifications that allow computer programs to communicate with each other, or to allow a program to communicate with a human being.

In May 2012, U.S. District Judge William Alsup ruled that the Java APIs were not protected by copyright.  Oracle appealed to the U.S Court of Appeals for the Federal Circuit; as part of that appeal, EFF filed an amicus brief on behalf of 32 computer scientists.

In a terrible decision in May 2014, the Federal Circuit reversed Judge Alsup and held that APIs are copyrightable.  The Federal Circuit went out of its way to disagree with the Lotus v. Borland case I worked on twenty years ago, which dealt with similar issues.  The circuit court's decision was harshly criticized by nearly every commentator who wrote about the case (the sole possible exception being a paid consultant for Oracle).  One commentary observed, "The court that created the patent troll mess is screwing up copyright too" (that commentator previously observed how the Federal Circuit has damaged the patent system).

In October, Google asked the Supreme Court to review this case; its petition for certiorari is here (or here).  On Friday, EFF and other groups filed amicus briefs supporting the petition.  EFF's amicus brief was on behalf of an expanded group of 77 computer scientists.  As explained in EFF's press release, signatories to the brief include five Turing Award winners, four National Medal of Technology winners, and numerous fellows of the Association for Computing Machinery, IEEE, and the American Academy of Arts and Sciences. The list also includes designers of computer systems and programming languages such as AppleScript, AWK, C++, Haskell, IBM S/360, Java, JavaScript, Lotus 1-2-3, MS-DOS, Python, Scala, SmallTalk, TCP/IP, Unix, and Wiki.  ArsTechnica's article about EFF's filing is here; other articles or discussion boards are here, here, here, here, here, here, here, here, here, here, here, and here.

Articles by Public Knowledge about its amicus brief are here and here.  CCIA's amicus brief is here.  Other articles about all three of these amicus briefs are here and here.

The Law Professor's brief, filed by Pam Samuelson of U.C. Berkeley, is here.

My Latest EFF Amicus Brief: Google Books Appeal

Last Thursday, EFF filed the latest amicus brief on which I worked, in The Authors Guild v. Google appeal.  EFF's blog post about the brief is here.

In this long-running lawsuit, The Authors Guild seeks to shut down the Google Books search engine.  The district judge held that Google's scanning of books to create a search engine was fair use.  The Guild has appealed to the U.S. Court of Appeals for the Second Circuit.  Our amicus brief asks the Court to affirm the finding of fair use, and to confirm that fair use can apply to new technologies that use copyrighted works with a new and different purpose that doesn't substitute for the original works.  

Digitizing Books Is Fair Use (Again)

Google Books is a useful research tool.  It permits you to scan the contents of millions of books that Google paid to have digitized.  If the book is in the public domain, you can see the entire text of the book.  If the book is still under copyright, you can still see the entire text (if the copyright owner has authorized it), or you can at least see the book's table of contents and "snippets" of some of the book's text.  Either way, Google directs users to places like Amazon where you can buy an authorized copy.

Google obtained many of its books through a deal with major university libraries, including the University of California and the University of Michigan.  The libraries loaned the books to Google, which scanned the books and returned the books to the libraries with a copy of the digital scan.  Google used the digital scans for its own Google Books tool, and the libraries used the scans as well.  The libraries set up a trust, the HathiTrust, to coordinate their use of the digital scans.

In 2005, The Authors Guild sued Google for copyright infringement.  Google's main defense was fair use: that the copyright laws permitted Google's limited copying, especially given the enormous educational benefit of being able to search millions of digitally scanned books.  In August 2012, EFF and several library associations filed an amicus brief supporting Google's fair use defense, which I helped to write.  In the meantime, The Authors Guild had also sued the HathiTrust for copyright infringement.  

 

 In October 2012, one district judge granted the HathiTrust summary judgment that its acts were fair use.  (For procedural reasons, the HathiTrust case got to summary judgment before the earlier filed Google case.)  Yesterday, the district judge assigned to the Google case agreed, and granted Google summary judgment of fair use.

 

The court's opinion relied on EFF's and the libraries' amicus brief in several places.  Citing our brief, the court said:

Google Books has become an essential research tool, as it helps librarians identify and find research sources, it makes the process of interlibrary lending more efficient, and it facilitates finding and checking citations.
    . . .
Google Books facilitates the identification and access of materials for remote and underfunded libraries that need to make efficient decisions as to which resources to procure for their own collections or through interlibrary loans.
    . . .
"Thanks to . . . [Google Books], librarians can identify and efficiently sift through possible research sources, amateur historians have access to a wealth of previously obscure material, and everyday readers and researchers can find books that were once buried in research library archives."

 The court thus concluded that Google's digital scanning was fair use:

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

An excellent opinion by Judge Chin!  The Authors Guild has said they will appeal, and indeed the previous case against the HathiTrust is already on appeal.

Here are blog posts by EFF, Techdirt, Joe Mullin for Arstechnica, and Eric Goldman.

My Latest Amicus Brief: Viacom v. YouTube (Again)

Yesterday EFF filed the latest amicus brief I helped write.  The brief is in the long-running Viacom v. YouTube copyright litigation in New York, and is in the second appeal in the case before the Second Circuit Court of Appeals.  My most recent previous post describes the case, Viacom's opening brief, and the amicus briefs supporting Viacom.    YouTube's response brief is here.

EFF's blog post about our amicus brief is here.  EFF's case page contains links to the seven other amicus brief filed yesterday that also support YouTube:

• Brief of Ebay, Inc., Facebook, Inc., IAC/Interactivecorp, Tumblr, Inc. and Yahoo! Inc.
• Brief of Computer & Communications Industry Association
• Brief of Anaheim Ballet et al.
• Brief of National Alliance for Media Art and Culture et al.
• Brief of National Consumers League et al.
• Brief of Consumers Electronics Association
• Brief of 31 Law Professors

Washington Post Article on the Copyright Term Extension Act

"For most of history, a great character or story or song has passed from its original creator into the public domain. Shakespeare and Charles Dickens and Beethoven are long dead, but Macbeth and Oliver Twist and the Fifth Symphony are part of our shared cultural heritage, free to be used or re-invented by anyone on the planet who is so inclined. But 15 years ago this Sunday, President Clinton signed the Sonny Bono Copyright Term Extension Act, which retroactively extended copyright protection. As a result, the great creative output of the 20th century, from Superman to "Gone With the Wind" to Gershwin’s "Rhapsody in Blue," were locked down for an extra 20 years."

 An interesting article by Timothy B. Lee in the Washington Post about a terrible law.   Hopefully, the Internet will be better mobilized in 2018.

Best Response Ever to a Cease-and-Desist Letter?

Apparently the American Bankers Association (ABA) thinks it owns the copyright in federal bank routing numbers.  These are the numbers that appear on the bottom and sometimes the top right of checks that identify the check writer's bank. 

The ABA sent a cease-and-desist letter to Greg Thatcher, whose web site listed and indexed the routing numbers, and demanded that he take down the numbers. (After a 1991 Supreme Court decision, most competent copyright lawyers would never even have made such a claim, but never mind.)

Mr. Thatcher obtained pro bono counsel to represent him.  That lawyer, Andrew Delaney, wrote one of the best responses to a cease-and-desist letter ever.  On the merits, the letter points out that (1) things like routing numbers aren't subject to copyright protection, (2) since the numbers were published without a copyright notice starting in 1911, any copyright would be lost for numbers published during the time the 1909 Copyright Act applied, and (3) Thatcher's use of the numbers would be fair use anyway.

But the best part is the humor in the letter.  Especially the footnotes.  Such as footnote 7:  "And we went to law school, which just illustrates how gullible we are."  And then there's the closing offer to accept service of process on behalf of Thatcher:

If you do feel it's necessary to sue our client, we are open Monday through Friday from 8:00 A.M. to 6:00 P.M. and we have lollipops for people who serve process.  So if you do file a complaint and send someone over with a summons, please have them wear something with a bit of purple . . . we all like purple.

Interesting TED Talk on Some Problems With IP Law

Here is an interesting TED talk on some problems with IP law.  It starts out by singing "Happy Birthday to You."  Don't sing along, though, you might get into trouble.

Opening Round Briefs in Second Viacom v. YouTube Appeal

The long-running saga of Viacom v. YouTube continues.  As you may remember, Viacom v. YouTube involves the liability of user-generated content (UGC) websites such as YouTube when their users post allegedly infringing content, and specifically how UGC sites can defend such liability using the "safe harbor" of the DMCA, 17 U.S.C. §512.  In June 2010, the district court granted summary judgment to YouTube on its safe harbor defense.  In April 2012, the Second Circuit Court of Appeals affirmed much of the district court's reasoning, but remanded the case for further fact finding.  In April 2013, the district court again granted summary judgment to YouTube, and Viacom appealed yet again.

Viacom has now filed its opening brief.  Groklaw has a discussion of that brief here.  In addition, six amicus briefs have been filed in support of Viacom:

• Ronald A.Cass, Raymond Nimmer, and Stuart N. Brotman
• Copyright Alliance, Minority Media & Telecommunications Council, Inc. and the Media Institute
• American Federation of Musicians, Directors Guild of America, International Alliance of Theatrical Stage Employees, Screen Actors Guild-American Federation of Television and Radio Artists, and Studio Transportation Drivers, Local 399, International Brotherhood of Teamsters
• MPAA and Independent Film & TV Alliance
• American Society of Composers, Authors and Publishers, Broadcast Music, Inc., The Recording Industry Association of America, and Sesac, Inc. 
• Football Association Premier League Ltd., Bourne Co., Murbo Music Publishing, Inc., Cal IV Entertainment, LLC, X-Ray Dog Music, Inc., and Fédération Francaise de Tennis (this filing is actually a motion for leave to file the amicus brief)

Groklaw's discussion of those amicus briefs is here.

YouTube's opposition brief is due on October 25, 2013.

First Published Court Opinion to Mention "Sharknado" -- And It's Actually a Good Fair Use Opinion

The William Faulkner estate sued Sony Pictures for copyright infringement because the movie Midnight in Paris used a single line from Faulkner's book, Requiem for a Nun.  Fortunately, a Mississippi district court dismissed this case on the grounds of fair use. The opinion is well-reasoned, but that didn't stop the Judge from having a little fun.  The opinion begins as follows:

Presently before the court is the motion of the defendant, Sony Pictures Classics, Inc. (“Sony”), seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff, Faulkner Literary Rights, LLC (“Faulkner”) has responded in opposition. The court has viewed Woody Allen’s movie, Midnight in Paris, read the book, Requiem for a Nun, and is thankful that the parties did not ask the court to compare The Sound and the Fury with Sharknado.

This has to be the first court opinion to mention the movie Sharknado, already a Sci-fi classic.

My Interview With The Recorder

The Recorder, a San Francisco-based legal newspaper, recently published a report on intellectual property.  I am interviewed at pages 28-29 of the report (the last two pages of the PDF).

UPDATE:  Here is the video of the interview.

Computer Scientists' Brief in Oracle v. Google

Yesterday EFF filed the latest amicus brief on which I worked, in the Oracle v. Google appeal.  As I previously discussed, Judge William Alsup of the Northern District of California had ruled that Java APIs are not copyrightable, at least to the extent of Google's limited use of the APIs in Android.  Judge Alsup relied on the Lotus v. Borland case I worked on many years ago, and other similar cases, to reject Oracle's copyright claim.

Oracle appealed the case to the U.S. Court of Appeals for the Federal Circuit, and it is now being briefed.  Groklaw has detailed discussions of Oracle's opening brief and of Google's brief.

EFF's amicus brief is filed on behalf of 32 notable computer scientists, including Larry Roberts (one of the inventors of ARPANET), Tim Paterson (who wrote the original MS-DOS program), Bjarne Stroustrup (the inventor of C++), and many others.  Their bios are here.  EFF's press release about the brief is here; Groklaw's article is here.

 The computer scientists' brief traces the history of APIs in the computer industry, starting with the original IBM PC thirty years ago, and continuing up until the present.  The brief shows that the exclusion of APIs from copyright protection has been essential to the development of modern computers and the Internet, and the key to competition and progress in the computer field.  Examples include PC clones, operating systems such as UNIX and Linux, programming languages such as "C,", Internet network protocols, and cloud computing.  Because APIs are open, developers can create compatible new programs, and users can use their data in different applications without being locked into a single platform.

The brief also explains that the uncopyrightable nature of APIs encourages the creation of new software that otherwise would have been written, and also helps rescue users when software goes "orphan" because its original creators have abandoned their product.  In both cases, the open nature of APIs enables the creation of compatible software.

The case is being heard in the Federal Circuit because Oracle had also sued Google on patent claims.  Oracle lost those at trial, but is only appealing its copyright loss.  The Federal Circuit must apply Ninth Circuit copyright law, which together with the First Circuit's decision in Lotus strongly suggests that Google should win this case.

   

YouTube Wins Summary Judgment Against Viacom (Again)

Yesterday, following further briefing, the district court granted YouTube's renewed summary judgment motion against Viacom.  EFF, Eric Goldman, and Techdirt all have detailed (and sometimes biting) writeups of the ruling.

Animated GIF Showing 40 Years of Music Industry Change

Someone created an animated GIF showing 40 years of changing formats in the music industry, from 1973 to the present.  It's interesting to see that by the early 1990's, both vinyl albums and singles had disappeared in favor of the CD format, but CD sales had not included any significant amount of CD singles.  This enabled the music industry to charge a full album price even if you only wanted one song.  By today, digital music sales of single songs claimed a significant percent of the music market.

Further Summary Judgment Briefing in Viacom v. YouTube

I wrote previously about the long-running saga in Viacom v. YouTube, a case involving the "safe harbors" for user-generated content websites.  My analysis of the April 2012 Second Circuit opinion is here; earlier posts are here, here, here, and here.

On remand from the Second Circuit, YouTube has again asked the district court for summary judgment.  Techdirt has an excellent summary of the briefing on that motion.

Columbia Pictures v. Fung Opinion is Released

Today the Ninth Circuit released its opinion in Columbia Pictures Industries v. Fung.  The case involves liability for maintaining a torrent site used to promote downloads of copyrighted content.  I discussed the oral argument in the case here.

Roundup of Commentary on Kirtsaeng v. John Wiley

Yesterday the Supreme Court released its opinion in Kirtsaeng v. John Wiley & Sons, Inc.  In this important decision, the Court held that the "first sale" doctrine applies to the importation of goods manufactured and sold abroad under authorization by the copyright owner.  It's a helpful addition to the principle that if you buy something, you own it.

Since there already has been so much analysis of the opinion, rather than adding my own here are links to what other people have said:  EFF, SCOTUSblog, Patently-O, Techdirt, Eric Goldman, Joe Mullin, and the Volokh Conspiracy.

UMG v. Veoh Affirmed Again

On Thursday, the Ninth Circuit Court of Appeals issued a superseding opinion in UMG v. Veoh (Shelter Capital Partners).  The Court filed its original opinion in the case on December 20, 2011, which I wrote about here.  Both the original and new opinions held that Veoh's user-generated content website is entitled to the "safe harbor" protection of 17 U.S.C. § 512. Briefly, UMG v. Veoh is about UMG's claim that Veoh's user-generated content (UGC) web site contains copies of UMG's copyrighted music, and that Veoh should be secondarily liable when its users post allegedly infringing music on the Veoh site. The trial court had granted summary judgment to Veoh on the grounds that it was immune from suit since it complied with the “safe harbor” notice-and-takedown procedures of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c) ("DMCA").

UMG v. Veoh raised many of the same issues as the Viacom v. YouTube case in New York, where the district court had granted summary judgment to YouTube, also on the safe harbor defense.  Viacom's appeal to the Second Circuit Court of Appeals was a little later in time than the original UMG v. Veoh appeal.  As a result, when the Second Circuit issued its opinion -- on April 6, 2012 -- it had the benefit of the earlier Ninth Circuit opinion in UMG v. Veoh.

While the Second Circuit largely agreed with the Ninth Circuit, it didn't agree 100%, as my post on the opinion explains.  This led to an interesting procedural development.  After the December 2011 opinion in UMG v. Veoh, UMG had petitioned the Ninth Circuit for rehearing, and that petition was still pending when the Viacom v. YouTube opinion was released in April 2012.  As a result, in an Order dated June 7, 2012, the Ninth Circuit requested that the parties submit supplemental briefs to address two issues about the interpretation of the DMCA in light of the Second Circuit’s intervening decision in Viacom v. YouTube. The first issue on which the Ninth Circuit asked for supplemental briefing concerned the distinction between actual and red flag knowledge under the DMCA; the second issue concerned the meaning of “right and ability to control” under the DMCA.  The parties filed supplemental briefs a few weeks later.

The Ninth Circuit has now re-affirmed Veoh's victory in its latest, superseding opinion.  In doing so, it largely eliminated any conflict with the Second Circuit's reasoning.  First, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of both “knowledge” and “red flag knowledge” under the DMCA as applying only to specific instances of infringement, rejecting UMG's argument that “red flag knowledge” can be shown by generalized knowledge that a service can be used to infringe. Second, the Ninth Circuit agreed with the Second Circuit’s interpretation in Viacom v. YouTube of the meaning of “right and ability to control” under the DMCA as requiring a showing that a service provider exerts “substantial influence on the activities of users,” rejecting UMG's argument that it can be shown by a service provider’s general ability to locate infringing material and terminate users’ access.

Thus, the Ninth Circuit concluded that Viacom v. YouTube supports its earlier conclusion that Veoh was properly granted summary judgment based on the safe harbor under Section 512(c) of the DMCA.  By largely agreeing with the Second Circuit, the Ninth Circuit has now greatly lessened any need for the Supreme Court to review either case.

EFF's discussion of the opinion is here, and TechDirt's is here.  (EFF's amicus brief in the case, on which I worked, is approvingly cited at page 24 of the opinion.)