Read the case study entitled, “Oracle vs. Google: The Fight Over Java”

Read the case study entitled, “Oracle vs. Google: The Fight Over Java” (pgs. 154-159 in the textbook) and write a 500-word paper that addresses the following questions:

1. Outline as clearly as possible the main facts of this case and explain the moral issues at stake.

2. Assume that you are an attorney representing Google or Oracle. Defend the position of your chosen company.

3. In your paper, explain the reasoning why the Federal Appeals Court believed that the structure, organization, and sequence of APIs were in fact copyrightable. How does this contrast to the First and Sixth federal circuit court’s interpretation that copyright law excludes protection for all methods of operations?

You will be graded on the completeness of your answers along with your knowledge and application of principles and concepts covered in the lesson.

Be sure to cite any sources using APA styling.

Readers’ Rights, Remixing, and Mashups

A number of prominent legal scholars have recently expressed support for a copyright system in the United States that gives rights not just to authors and creators of content but also to those who read, view, and listen to that content. These limited user rights would go well beyond fair use and typically encompass broad access and distribution rights, including the right to share digital content with others. The idea of a “law of user’s rights” is not new, although there has always been a measure of resistance. Yet this idea has gained considerable traction among intellectual property scholars, especially within the last decade. They see copyright as far too heavily tilted toward enriching owners of content; hence the law must be reconfigured to offer more concrete benefits and opportunities to the consumers of content. Jessica Litman, for example, ardently insists that we must take readers’ interests more seriously and “reclaim copyright for readers.” What specific rights should readers have? While some argue for a modest set of user rights, others propose a thick set of rights including the right to share works with others along with the right to recode or transform a work to give it a different meaning, even if the new product is highly derivative of the original work.

Among the readers’ rights proposed is the prerogative to engage in remixing or creating mashups without getting permission from the original copyright holders. Specifically, users would be allowed to remix digital content by recombining pieces from different preexisting cultural works, such as music, photos, books, and movies, even if those objects have a copyright. Under this system, filmmakers would be allowed to construct new movies out of substantial clips compiled from digital movies located on computer systems around the world. Such a creative mashup, of course, is currently illegal, unless it falls within the restrictive parameters of fair use. But Larry Lessig and others maintain that the law must be changed, so that ordinary people become “producers” of culture, not just “consumers” of culture. In this way we can return to an “amateur” creative culture that supports the participation of the multitude instead of just an elite few.

Where might the public stand on this issue? Litman claims that we are on “the verge of reaching a social consensus that mashing up is an important copyright liberty,” that even copyright owners should not want to prevent. She goes on to stipulate that the law should allow for the creation and sharing of mashups as long as this is done noncommercially.

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C o p y r i g h t 2 0 2 0 . J o n e s & B a r t l e t t L e a r n i n g .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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Without a change in the law and some recognition of users’ remixing rights, creative remixers like DJ Danger Mouse will continue to be thwarted by the structure of the current copyright system. This particular remixer is known for the Grey Album, a coalescing of the Beatle’s White Album and Jay-Z’s The Black Album. Copyright owners, however, fought vigorously to prevent online distribution of the Grey Album. Many cite this as an example of an oppressive copyright system interfering with the potential of a robust, creative remix culture. Some mashup artists, like the creator of “Girl Talk,” Gregg Gillis (he recombines music snippets from Bruce Springsteen, Jay-Z, and Miley Cyrus), take small samples that appear to be covered by fair use provisions of the copyright law. However, it’s not completely clear that Girl Talk is on the right side of the law, and a case can certainly be made that Gillis’s work is inhibited by the long shadows of copyright law. Changes in that law rebalancing the equation between the rights of creators and consumers will promote greater cultural participation and thereby serve a definite social purpose.

Some legal scholars, such as Robert Merges, do not believe that the impetus to promote this remix culture should lead to structural changes in copyright law. They argue that it would be unfair to the original creators of mass market content for remixers to “redistribute” their works and thereby interfere with their ability to appropriate the value of their creations. We cannot neglect the efforts of musicians, songwriters, novelists, and filmmakers who make this content. They have a right to control distribution, and, within limits, a right to control the fundamental meaning of those works. According to Merges, “The story of the original content creator should affect how we think about remixing.” The solution is to structure the law so that both content creators and users are treated fairly and justly, but this does not mean diluting the rights original content creators deserve over their creative works.

Questions Should copyright laws be altered to facilitate remixing and mashups (e.g., by broadening the terms of fair use, which currently permit the use of very small samples of music or movies)? Should remixers be allowed to profit from their efforts?

Case Studies

A Parody of PETA

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People for the Ethical Treatment of Animals (PETA) is a nonprofit organization dedicated to the promotion of animal rights. The group is opposed to eating meat, wearing fur and leather, and conducting research experiments on animals. In this case, the domain name

was registered by Mr. Doughney to parody PETA and its views on animals.www.peta.org The webpage was entitled “People Eating Tasty Animals,” and it included links to sites where leather goods or meat products were sold. The plaintiff filed suit under the auspices of the Anticyber squatting Protection Act (ACPA), alleging that the domain namepeta.org was identical to or confusingly similar to the distinctive and famous PETA mark. Doughney and his lawyers contended that there was no infringement or dilution, and hence no violation of the ACPA, because his website was a parody.

A federal district court ruled in favor of PETA, finding Doughney liable for trademark infringement. The case was promptly appealed, but the U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the district court. It agreed that the PETA mark was distinctive and that Doughney had no intellectual property right in . Moreover,peta.org according to the court, there was no record of any prior use of , and Doughneypeta.org used the mark in a commercial manner. It also agreed that Doughney “clearly intended to confuse, mislead and divert internet users into accessing his website which contained information antithetical and therefore harmful to the goodwill represented by the PETA Mark.” Doughney himself “admitted that it was ‘possible’ that some Internet users would be confused when they activated ‘ ’ and found the ‘People Eating Tasty Animals’peta.org website.” The appeals court concluded that Doughney acted in bad faith; he made statements to the press that PETA should attempt to settle with him and “make him an offer.”

A key issue triggered by this case is whether a good faith intention to criticize and parody a trademark owner such as PETA should constitute a valid reason for registering a domain name incorporating that trademark owner’s trademark ( ). Or does that domainpeta.org name require some sort of appendage or distinguishing variation such as “ ”petasucks.com so that there will be no confusion?

Questions Do you agree with the court’s decision in this case? If so, what about Mr. Doughney’s free speech rights? In your view, why did the court reject Doughney’s parody defense?

Case Studies

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Oracle vs. Google: The Fight over Java

The high-profile dispute between Oracle and Google has been described as the “most notable case in copyright,” and the “World Series of IP cases.” The protracted

conflict traces back to Oracle’s acquisition of Sun Microsystems after the demise of Sun’s hardware business. Oracle, founded in 1977, rose to prominence in Silicon Valley thanks to its flagship database business. Unlike Sun, Oracle has followed the path of Apple by favoring proprietary technologies over open source ones.

Sun had developed the programming language or platform called Java, hoping that it would become the standard language employed by programmers for website development and applications. In 1995, Sun introduced the Java platform, which allows a user to run the same Java application on many different kinds of computers. Java applications can be delivered over the internet to computers running different operating systems (for example, Windows, Macintosh, or Unix). Since its introduction in 1995 Java grew in popularity thanks to this portability or cross-platform functionality. Almost immediately, Netscape adopted Java for its Navigator browser.

The Java technology has several components that contribute to its superior functionality. It encompasses a programming language; a group of programs written in that language called the “Java class libraries” that expose their own Application Programming Interfaces (APIs); a compiler that translates the code written by a programmer into “bytecode”; and, finally, the Virtual Java Machine (JVM) that translates bytecode into instructions for the operating system. Applications that use the Java APIs will run on any systems with a Java Runtime Environment (JRE), that is, the Java class libraries and a JVM.

While the Java programming language is essentially free to use under the open source terms of a general public license, the Java platform or Java SE requires a license. Java SE allows the code written in the Java programming language to run on a variety of different operating systems using the Java Virtual Machine (JVM). Java SE also includes the Java APIs. The APIs, which consist of standardized, prewritten “methods” or blocks of code to handle basic programming functions, work as software interfaces. They allow programs, websites, or apps to communicate with one another. For example, the APIs allow an operating system like Android to download a website or open and run a particular app. Java developers would be unable to create new programs for platforms like Android without relying on these software interfaces.

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The pivotal question in this case is whether these APIs or software interfaces are copyrightable. According to the U.S. copyright law, copyright protection does not extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such [original] work.” Do these restrictions apply to software interface or APIs which serve as the means of interoperability for information technologies, and have been often characterized as “methods of operation,” because of their functional purpose? The Supreme Court sought to resolve a closely related question in the case butLotus v. Borland deadlocked in a 4–4 vote. At issue was copyright protection for the menu command hierarchy (e.g., a sequence of commands such as Paste–Cut– Copy). In the absence of a definitive Supreme Court Ruling the First and Sixth federal circuit courts ruled that copyright law excludes protection for all methods of operation, including those embedded into software interfaces. The first person to write a program cannot “lock up” basic or standard programming techniques and methods of operation such as a command hierarchy. The Third Circuit has taken the opposite position, ruling that a method of operation embodied in a software interface is copyrightable so long as it could have been written differently.

Java and Google’s Android Operating System Google, the search engine giant, developed an open-source platform or operating system for mobile devices. The product was called Android, and it was released to the public in 2007. Many companies such as Samsung, Xiaomi, Nokia, and HTC use the Android operating system for their smartphones. Apple, on the other hand, uses its own proprietary operating system (OS) known as the iMac. Although Google executives did not intend to directly monetize Android, it was designed to become a vehicle for promoting its search functionality and other applications. The company’s goal was to produce and distribute “the world’s first open source handset solution with built-in Google applications.”

Java was vital to the success of this open source project for a number of reasons. The company had to move fast because competitors were working on their own proprietary systems. Therefore it was not feasible to write all the code from scratch. Also, there was already an “existing pool” of developers and applications. Java therefore, meant “a safe sandbox for third party developers.”

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There were extensive negotiations with Sun about the use of Java for Android, but Google found the company’s licensing terms to be too restrictive. Negotiations broke down, but Google’s commitment to Java was undeterred. Using the Java language was not a problem since it was an open source product that Sun had released to the public. Google also planned to develop and code its own virtual machine (called “Davlik”). But copyright issues arose because the Android team wanted to use 37 Java API packages from the Java Standard Edition (SE). Each of the API packages uses two types of source code: declaration code and implementation code. The Android developers used the declaration code of the APIs, analogous to chapter headings and titles, but wrote their own implementation code. These declarations represent the “header line of code” that introduces the “methods” or blocks of code that perform functions such as mathematical calculations or the display of simple graphics. The Java API declarations inform developers how to access these prewritten methods that perform the tasks which are executed by the implementation code. One of the API packages implemented in Android was java.security, which provides the classes and interfaces for the product’s security framework and allows an app’s security commands to function.

Despite its disapproval, Sun did not challenge Google and it did not file a copyright or patent infringement law suit. But Oracle’s acquisition of Sun in 2010 changed everything. Oracle CEO Larry Ellison regarded Java as “the single most important software asset we have ever acquired.” Moreover, Oracle was prepared to take legal action over Google’s use of these 37 API libraries of coding blocks without a license, since it perceived this action as a blatant infringement of its copyright. The company sued Google for copyright infringement and sought $9 billion in damages. In its lawsuit, Oracle claimed that Google had illegally copied Java source code along with the structure and organization of Java class libraries to develop its Android OS.

Legal History and Arguments

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Specifically, Oracle alleged that Google directly copied 7,000 lines of declaring code and generally replicated without permission the structure, sequence, and organization of 37 Java API packages. Oracle conceded that the implementation code was different and the Davlik virtual machine was not an issue. The central question before the court would be whether these components of the Java platform were entitled to copyright protection. And if they were subject to such protection did Google’s use of this material constitute a form of fair use under current copyright law. According to Oracle, while no single name was copyrightable, “Java’s overall system of organized names – covering 37 packages, with over 600 classes, with over 6,000 methods – is a ‘taxonomy’ and, therefore, copyrightable.” In its defense Google insisted that Sun had freely licensed the Java programming language and encouraged the use of Java APIs by developers. Google also argued that it independently implemented the functions of the 37 API packages at issue and that its use of 7,000 lines of declaring code was a small part of Android’s 15 million lines of source code. For example, a declaration might call for something to be displayed and the associated implementation code would display the output on the screen of a smartphone or other mobile device. The reuse of these Java software interface declarations in Android was necessary so that developers could program Android applications in the open Java language.

The first trial took place in 2012 in the U.S. District Court for the Northern District of California. The jury was deadlocked on the fair use issue. But Judge Alsop generally rejected Oracle’s arguments. He ruled that Google’s use of the Java APIs constituted fair use because an API is a “method of operation.” He also ruled that the 37 API packages were not subject to copyright protection. The declaring code was not protectable since “names and short phrases cannot be copyrighted.” As a result, the Court entered its final judgment in favor of Google.

In 2013, Oracle appealed Judge Alsop’s ruling to the U.S. Court of Appeals for the Federal Circuit. The case was now attracting widespread attention with major software companies siding with Oracle, but independent application developers siding with Google. Libertarian groups such as the Electronic Frontier Foundation (EFF) were also aligned with Google. In its legal brief laying out the rationale for its appeal, Oracle’s attorneys employed a literary analogy to help convince the jurists of the validity of their claims:

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Ann Droid wants to publish a best seller. So she sits down with an advance copy of Harry – the fifth book – and proceeds to transcribe. ShePotter and the Order of Phoenix

verbatim copies the chapter titles – from (Dudley Demented) to Chapter 38Chapter 1 (The Second War Begins). She copies verbatim the topic sentences of each paragraph starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter

. The knockoff flies off the shelves.5.0

J.K. Rowling sues for copyright infringement. Ann’s defenses: “But I wrote most of the words from scratch. Besides, this was fair use, because I copied only portions necessary to tap into the Harry Potter fan base.”

Obviously, the defenses would fail.

Thus, Oracle’s approach was based on a comparison of the creativity in the design and coding of computer software with the copyrightable creativity of a literary work.

But in their rebuttal Google’s attorneys resorted to familiar arguments about the nature of software. They argued that software interfaces are not like literary or artistic works because they “perform functions that are not entitled to copyright protection.”

In May 2014, the Federal Appeals Court hearing the case reversed the District Court’s 2012 decision. It ruled that the structure, organization, and sequence of the APIs was copyrightable and remanded the case back to the district court for a retrial on the basis of whether Google’s use of the material constituted fair use. According to the Court, “because Oracle exercised creativity in the selection and arrangement of the method declarations when it created the API packages and wrote the relevant declaring code, they contain protectable expression that is entitled to copyright protection.” In 2016, Judge Alsop conducted the retrial that dwelt on the issue of fair use of the copyrightable declaring code by Google. In closing arguments at the trial Google attorneys emphasized Android’s “transformative purpose,” reminding the Court that Android was not a substitute or direct copy of Java SE but an innovative software platform. Oracle’s attorneys, on the other hand, relied on a simple moral theme: “You don’t take other people’s property without permission and use it for your own benefit,” and you don’t take “shortcuts” at other people’s expense and come up with the “fair use excuse.” The jury seemed unpersuaded by that moral argument. It found that this was a case of fair use and exonerated Google.

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However, in March 2018, the Federal Circuit Court of Appeals overturned the verdict and ruled that Google’s use of the APIs wasn’t “fair.” According to the Court of Appeals, “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” But, despite this ruling, the extended battle between Google and Oracle has continued. In 2019, Google filed a petition with the U.S. Supreme Court asking its members to review the Circuit Court’s decision.

Questions Outline as clearly as possible the main facts of this case and explain the moral issues at stake. Assume that you are an attorney representing Google (or Oracle). Prepare a two-page brief defending the position of your client. If you were a Supreme Court Justice and the Court decided to hear this case, would you vote in favor of Oracle or Google? Explain your reasoning in one succinct paragraph.

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