Google has been embroiled in a legal battle with Oracle for some time now, and the jury in the case is slowly releasing their verdicts on multiple issues. I haven’t written on it much here, because it’s being covered extensively by far more intelligent people elsewhere. The basics of the case are that Oracle has claimed that Google infringes on Oracle’s copyright in their Java APIs (37 API packages, specifically), as well as infringing on patents related to the same.

Though the story has been reported on quite extensively, the twitters and techmemes were abuzz yesterday when the jury in the case released their first verdict. The verdict? Well, they didn’t really reach one. The jury was instructed to assume the copyrightability of the Java APIs, and to come to a conclusion on whether Google’s use of the APIs was “fair use”. The jury instruction all but ensured that the jury would decide that Google infringed the API copyrights – the real issue in the case really ought to have been whether the APIs were indeed covered by copyright, but the judge has saved that determination for himself. The jury came back Monday with the statement of “we don’t know” on the issue of fair use.

How is that news being reported? This is Techcrunch’s Headline:

The Verdict Is In: Google Infringed On Oracle Copyrights

Correct, but completely misleading. Anybody following this story knew that the jury was going to find infringement (see here for one example), and anybody following the story also knew that the real issue was whether the jury would find the infringement to be fair use, and whether the court would find the APIs to be copyrightable. Techcrunch’s article is written as if the case is over. It’s not just Techcrunch – Wired is reporting today that “if” APIs are copyrightable (note: many legal pundits say that they are, and have been for a long time), then apparently the world will explode. The lead picture for the article is an atomic bomb. An atomic bomb? Really?

This isn’t the first instance of overzealous tech journalism, far from it, but Techcrunch’s (and other outlets’) coverage of major legal battles has sunk into the realm of tabloid sensationalism. Techcrunch recently reported on the Facebook v Yahoo patent fight by analyzing the patent abstracts, rather than the actual claims, to come to the ridiculous conclusion that “Facebook has the upper hand”. This is, obviously, months before any actual claim construction or significant developments in the case.

These are really important issues for the tech community to understand, but sensationalism and poor analysis only confuse the issues for readers. If Techcrunch wants to help educate on these issues, the least they could do is have a reputable source write a guest post.

Forgive me focussing on SOPA and the DOJ seizures so obsessively on this blog, but I truly believe we are at a turning point in the history of the internet, and it would be a shame to not write about it. Here’s the background for this article:

• The DOJ has shown a desire to become more active in the domain seizure game (see my last post on the topic)
• SOPA rallied the internet to mass protest earlier this week (Google & Wikipedia gaining most of the attention with their blackouts, Wikipedia’s which actually limited use of the site), and the bill is probably dead in it’s current form
• and the big one, the day after the SOPA protest, the FBI / DOJ seizes MegaUpload (a popular file locker/sharing site) and has the owners arrested

We are about to see fully what MegaUpload’s use trends really look like, and so far all we have is an overloaded justice department indictment that is currently inaccessible due to server demand (or Anonymous attack, who knows…). What bothers me: How is MegaUpload different from YouTube, which it seems clear is legally operating under the DMCA safe harbor provisions? If MegaUpload’s service was violating the DMCA, which is the law on copyright infringement on the internet, why were the owners instead brought up on charges under the criminal provisions of Title 17, Chapter 5?

My worry is that with SOPA seemingly dead, where SOPA would have given private companies a right to move against sites with infringing content, the government is quickly moving to fill the void of regulations that SOPA was hoping to close. This is just ridiculous timing – the DOJ looks like they have already determined that SOPA was a proper piece of legislation, and they are endorsing stronger enforcement of copyright over the will of the country, before Congress even votes on the bill. Congress probably won’t vote on SOPA after the recent protests, making the DOJ’s action seem like a unilateral decision to enforce the notion behind the bill anyway. Again, we don’t seem to need SOPA if the DOJ can seize the property and arrest the owners of a content hosting site like they’ve done here.

The case against the MegaUpload owners itself seems weak, and begs an obvious question – if MegaUpload is indeed covered by the DMCA safe harbor, but a court finds them guilty of criminal copyright infringement, where does that leave the DMCA as an effective shield for legitimate service providers?

The Stop Online Piracy Act (SOPA) is generating quite a lot of mainstream press lately, now that plenty of large companies and interest groups are starting to come out against it. For the uninitiated, SOPA (and it’s somewhat related cousin bill, Protect IP) sought to provide better enforcement mechanisms against “rogue” copyright infringement websites. In theory, it isn’t the worst idea – as a relatively poor twenty-something, I’m well aware of how many sites there are that exist solely for the purpose of hosting infringing content. The most recent prior law on copyright and the internet, the Digital Millenium Copyright Act (DMCA), provided effective enforcement against truly infringing, major, US-based websites, but it stopped short of sites like YouTube (which I’m fine with) and did nothing for content creators in regards to foreign websites. The problem presented by “rogue” websites is well stated by Terry Hart, author of the pro-copyright leaning blog ‘CopyHype’, here, and the general consensus of the rest of the internet by Mike Masnick, the standardbearer of the more liberal copyright movement, here.

The real problem with SOPA, as far as I see it, is that it doesn’t solve a real problem. On the spectrum of infringing sites, you have sites which generate infringing content as a result of random user activity clearly protected by the DMCA, you have “rogue” sites on the other end that exploit other copyrights illegally for fun and profit, and then you have sites in the middle that profit indirectly from both sorts of sites, such as search engines and ad providers. Have a look at this handy, rather ugly chart I just whipped up:

Basically, the arguments in support of the SOPA have centered on lackluster enforcement tools for content creators against the rogue sites that sit on the right side of the spectrum. This argument would make sense, except for the fact that the DOJ has made it clear that they will seize the domains of these sorts of sites pretty frequently. Today, the DOJ for the second year in a row seized domain names leading up to Cyber Monday (the name for the Monday following Thanksgiving, a big day in online sales). Last year the DOJ generated quite the controversy when they initiated this practice, with many decrying the lack of due process shown by an agency purportedly out to protect justice. It was those seizures that inspired the SOPA and Protect IP acts to some extent, as at least one of the domain seizures generated a lawsuit questioning the authority of the DOJ to take such actions without a court order. SOPA would presumably make it clear that the DOJ has such authority.

But with the DOJ facing just one lawsuit as a result of the 82 seizures last year, and with the DOJ taking down another 130 domains today, it’s becoming clear that the DOJ is going to keep doing this until a court specifically tells them it can’t. Practically, though, if the DOJ takes down only “rogue” sites, who is going to sue them?  What’s more, it’s clear from the list of seized domains that private companies are having a say in what the DOJ goes after already – more than half of the domains seized sell professional sports jerseys, with a small contingent of sites selling name brand clothing and apparel and infringing DVDs. If this is a sign that the DOJ is feeling comfortable with the legal standing of their takedowns, I’d expect more private companies to start dumping lists of “rogue” sites with the DOJ pretty soon, and more takedowns to follow. (I will admit that the list reflects a heavy dose of sites that infringe trademark, rather than copyright, and a skeptic might wonder if the DOJ is worrying that sites they took down last year were protected by the DMCA).

The DOJ’s willingness to seize domains begs the question – why do we need SOPA anymore? The main target of SOPA is the “rogue” sites that the DOJ took down last year, but clearly the DOJ is feeling like they have the authority to take down those sites even without SOPA. If that’s the case, SOPA really only extends potential enforcement power as against sites which are currently protected by the DMCA, like sites that benefit indirectly from infringement through ads, be it the search engines that lead users to those sites or the ad networks that serve ads to those sites. These sites, though, are clearly not at the root of the problem, and if the DOJ continues the domain seizure practice then the amount of money these sites generate from infringement as opposed to legitimate content (already a small percentage) will further shrink. Adding liability to sites like search engines and ad networks will do nothing to stop copyright infringement on a large scale, and it just adds headache for legitimate businesses. But if the DOJ can already seize the domains of rogue sites, adding liability and headache to legitimate business is all SOPA is likely to do.

Compared to most areas of law, copyright is a rather polarizing issue for people. It’s a perfect storm of sorts – Copyright pertains to just about every creative work authored by man in our country, so most everybody has some opinion on how it should work, because it probably impacts them in some way.

One of the strangest problems in copyright to me is that around fair use. Thinking about the topic, I’m reminded of how a Professor framed the issue for the class – Copyright is about whether you have to ask, and whether you have to pay (a rather realistic approach). With most works, and with most potential infringement, the answer is that the person seeking to exploit/further the original work has to ask, and probably has to pay (unless the original artist grants the license for free). If the use is “fair use”, then the new artist doesn’t have to ask, and doesn’t have to pay. For most situations then, the new artist either asks and pays, or doesn’t ask and doesn’t pay.

There is one rather unique situation in copyright though, where a new artist doesn’t have to ask for permission to use an original work, regarding covers in music. New artists seeking to rerecord a song already released by another artist need not ask that original artist for permission, they only have to pay a statutory license. It’s been the law of the land since 1908, when Congress was pushed to add the mechanical license by piano roll manufacturers who feared a monopoly by a major player in the piano roll market. Can’t make that stuff up.

If you really think about it, the exception for covers of musical compositions is exceedingly strange, and it casts some doubt on a lot of the justifications you hear for copyright law in other areas. It’s kind of like fair use, where we have agreed that there are some instances where the new use is so valuable for society that we don’t want to give the original artist the right to disapprove and shut it down. Fair use is typically found when a copyrighted work is used for something like research, parody, teaching, or the like, and the two main factors the court looks at are both economic, asking whether the new work is commercial in use, and whether the new work is likely to displace the older one in the marketplace. If covers in music weren’t protected by statute, however, they definitely would fail the fair use analysis – when a band releases a cover of an older song, they almost always are doing so for commercial gain, and the new version is likely to compete with the old version for ears. The license, though, solves these worries – every play of the cover generates some revenue for the artist of the original, and thus, everybody wins.

A compulsory license would have definitely been an economically efficient outcome for Fairey and the AP, who fought a high cost legal battle over the above images

Photography, on the other hand, seems to have reached something of an impasse of late. I wrote a post on the topic recently, and to summarize, what has happened in photography is that artists just end up taking work by prior artists for use in their new art, hoping to win the lottery on a nuanced piece of language in the law that has driven courts to rule in two different ways. Basically, artists are forced to decide if their use of the photo will be “transformative” under one of two different definitions embraced by different courts, in the hopes that a judgement in their favor will exempt them from seeking permission by qualifying their use as “fair use”. In practice, neither the original photographer nor the new artists have any idea whether a use is going to be deemed transformative and thus “fair” except in the most extreme cases, so the industry sees a chilling effect. Which system sounds easier and clearer to you, the system that photographs operate under, or the system that music operates under?

I’m not the first to suggest that photographs should be subject to a compulsory license, though the idea doesn’t seem to come up a lot. Mechanical licenses would be easy – just as in music, an agency would likely arise in the market that would make the transactions easy, and provide a way to connect a new artist to the original photographer. If the original photographer can’t be found by the new artist, then they can go ahead and continue without fear of a costly copyright infringement suit later, knowing that the maximum amount of risk they will take on is the cost of paying a mechanical license if the photographer comes out of the woodwork. It would be a smarter system, and I’m not sure why it hasn’t gained more traction.

WordPress tells me that the most popular search leading to my blog relates to fair use in photography, telling me that a whole lot of people don’t understand what the law in the area is on the issue. My last post on the topic covered Richard Prince’s fight with a photographer, from whom he borrowed/stole/was inspired by/copied photographs of rastafarian men and added little flourishes before displaying the art in a gallery. Below is the picture, which I “stole” from a blog:

Prince lost the case in the lower court (more on that in a minute), but for us copyright watchers, that opinion doesn’t really matter, because he is appealing, and he is appealing BIG TIME. Boies, Schiller & Flexner, the firm started by David Boies, is taking the case. BSF is a top-flight litigation boutique, and they probably took the case because it could go to the Supreme Court, so IT’S ON. This case won’t be over anytime soon, and will probably redefine fair use by the time it ends.

But back to the lower court – Prince lost primarily because the lower court judge decided that the nature of the use wasn’t “transformative” (if Prince makes it to the Supreme Court, this will be the crux of the case). [Prince also shot himself in the foot by making all sorts of court unfriendly comments, like saying that it never occurred to him to ask Patrick Cariou, the photographer, for permission and that he would have taken the imagery even if explicitly told not to, and that even with Cariou’s work removed his art would be valuable and Cariou’s worthless.] This is only one factor in the four factor test, but it is a really important one, and possibly the one in the most flux as the law goes. Without going all law review article in this post, there are two trends in the determination of “transformative” that the Supreme Court would have to settle if Prince’s case makes it to the Supreme Court.  These two approaches vary based on how much they pay homage to the moral rights of the author, or the author’s right to be attributed as the author even in criticism. We don’t have moral rights to copyrighted works in the US, but the concept is inescapable, popular in other countries, and I feel quasi- moral rights drives the two trends, detailed here:

I. Transformative / preserves attribution – Some think that based on the language of the statute, a work is only “transformative” if it comments ON the original in some way, as for the purposes of criticism, research, or scholarship. This was where the lower court decided in favor of Cariou, the photographer who took the pictures that Prince copied. The lower court said that the problem with Prince’s activity was:

Prince’s Paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince’s Paintings are instead infringing derivative works.

Prince testified that he doesn’t “really have a message” he attempts to communicate when making art.

The idea is that “transformative” means something like “having the purpose of commenting on”, rather than just changing the message. Commentary that uses a piece as a point of reference is fair use because it preserves the original authors identity. Parody, while not necessarily as explicit on original authorship, is fine as well and this camp would likely also keep the traditional exceptions intact for scholarship, teaching and research for similar reasons.

Reproduction of Cariou’s pictures would be fair use only if they were in a book critiquing something about the work, such as an article on composition that believed Cariou poorly framed a subject, or for use in a class on a similar topic. An article commenting on our society’s fascination with Rasta culture could probably safely print a reproduction of Cariou’s picture as well.

The line is drawn with the second approach where the original work is used as a mere vehicle for commentary, but the commentary doesn’t actually relate to the original work itself. If I reprint Cariou’s work with the words “George Bush sucks” in small font, that’s not going to be fair use (it’s also not very topical). I say moral rights drive this camp’s opinion because they are fine with any transformation that maintains the integrity of the original author as an author of the work, even if the transformation is ultimately a critique.

II. Transformative / doesn’t preserve attribution – Others think that use of another’s work should be protected even when it doesn’t preserve authorship, such as what Prince did to Cariou’s works. The focus on attribution drops away, and the question becomes whether the new work added something new or merely supplants the old work. It’s Supreme Court case law that the more the work is transformed, the more the other factors of the analysis become less important, indicating that a truly radical change in an image, for example, should weigh heavily in favor of a transformation (and fair use). The way the first and ninth circuits have interpreted that, the focus should be on the functionality of the new work as compared to the old – if the new use has a different function, it should weigh in favor of fair use, even without attribution. The problem is, any lawyer can come up with ways in which a use is functionally different from another; Cariou’s pictures were used by Cariou in a book about the history of Rastafarian culture in a coffee table marketed to people looking for coffee table books, whereas Prince’s work is displayed as modern art in art galleries and valuable primarily because he had a hand in making it. See, it’s that easy! Other translations of this camp come out with “is something new added to the original work, which is used as a raw material”, which ends up operating similarly; Prince added his touch to anywhere from 20-30% of the visible canvas. This camp holds that such a simple distinction is fine, because the point of copyright is to protect the original author’s chance to collect profit from his works in the market he might sell the work in – Cariou was unlikely to make the alterations that Prince made and sell them in art galleries. This approach is very market driven in that way, unconcerned with the moral rights of the author.

It is worth noting that I is narrower, in that II encompasses the uses considered fair under I as well. All of the uses deemed fair under I are fine under II because commentary and critique are markets where the original author is unlikely to enter.

So which is the real answer to transformative use? Courts have ruled both ways. As evidenced in the Prince case, some courts think that a transformation can’t be protected unless it is making a commentary on the original work itself, such as for critique or scholarly purposes. Other courts have held to something closer to version two, that to transform the new work must merely add something new. I’m personally in the latter camp – Functionally, the current system puts a big burden on the person making a transformative work. A story recently gained traction about an artist who remixed the cover of a Miles Davis album for his own remixed Miles Davis music. He licensed the music, but didn’t license the cover, because he transformed the cover picture from a normal piece of art to a pixelized version. Here’s the comparison the artist posted on his blog:

He got sued, and had to settle despite feeling that he had substantially transformed the art, because the legal costs of even a successful defense would have significantly outweighed the costs of a settlement. The artist was probably fine under Transformative II, but not under I. The author has a great series of pictures at the bottom of his blog where he pixelizes the picture further and further until it is just 4 color squares, asking, with desperation, “Where would you draw the line?”.

The artist’s plight underlines the problem with approach I, and with the currently murky legal landscape. It puts a huge burden on artists to try and navigate the legal definition of fair use, a definition which isn’t even clear to legal scholars, rather than letting them work on their art. The Supreme Court needs to clarify the fair use issue, and needs to do so in a way that lets transformative works flourish – the definition needs to be clear enough that photographers will be discouraged from filing lawsuits against transformative works. We need a bright line rule on the issue one way or another, but so far we haven’t gotten one.