In its first copyright case to address the question of “fair use” in more than 25 years, the U.S. Supreme Court found that Google’s unauthorized use of Oracle’s computer “declaring code” to create software for Google’s new Android platform was a fair use. Rather than using this opportunity to bring much-needed clarity to the “transformative use” doctrine that the Court inserted into the fair use analysis in 1994 (and which lower courts have interpreted and expanded in a variety of ways), in its April 5 decision, the Supreme Court has instead further confused the role of transformative use in a manner that could have far-ranging ramifications on all copyright owners’ rights. Despite its statement that its decision was not intended to overturn or modify its earlier cases regarding fair use (and despite the fact that the Court tied its conclusion to the fact that Google had “reimplemented a user interface”), there is a risk that the decision could be misapplied by lower courts to extend fair use to all sorts of derivative works. This risk is precisely why the Authors Guild, along with nine other creator’s rights organizations, submitted an amicus, or “friend of the court” brief trying to guide the Court’s analysis in this case.
The Supreme Court’s decision focuses more on copyright as a benefit to the public than as an author right. In taking that approach, it looked at the computer code’s functionality as opposed to its more “expressive” elements, finding that declaring code was further from the “core of copyright” than other computer programs (and other types of works protected under the copyright law). Rather than address the question on appeal of whether the computer code in question was copyrightable, the Court assumed that it was for purposes of its analysis—and, having disposed of the copyrightability argument in that cursory manner, then expanded the concept of fair use to justify its decision.
In deciding that Google’s use was “transformative,” the Supreme Court looked at how it could “further the development of computer programs.” However, in viewing the use of Oracle’s declaring code as “the key that [Google] needed to unlock the programmers’ creative energies” and looking at Google’s need for “those energies to create and to improve its own innovative Android systems,” the Court appears to be going against the long-standing fair use argument that one can’t use another’s copyrighted work just to avoid the “drudgery of coming up with something fresh.” As Justice Thomas recognized in his dissent, Apple and Microsoft developed their own declaring code, which Google could have done, rather than copying Oracle’s.
The biggest problem for authors and other copyright owners in the Google v. Oracle ruling is the Court’s decision that Google’s copying of Oracle’s declaring code, so that it could create a competing product, was transformative–even though it had simply copied the code–and therefor did not need to be licensed. This ignores the fact that the copyright law gives copyright owners the right to authorize the creation of new works based on their original works. Our concern is that courts might extend this ruling, despite the Court’s exhortation to limit the decision to the precise facts at issue here in a manner that would deprive copyright owners of the right to license the creation of derivative works or new uses of their work by mischaracterizing these unauthorized uses as “transformative.” As Justice Thomas argues: “So, by turns, the majority transforms the definition of ‘transformative.’ Now, we are told, ‘transformative’ simply means—at least for computer code—a use that will help others ‘create new products.’” We agree with Justice Thomas that this “new definition eviscerates copyright. A movie studio that converts a book into a film without permission not only creates a new product (the film) but enables others to ‘create products’—film reviews, merchandise, YouTube highlight reels, late night television interviews, and the like.”
We hope that courts will follow the Supreme Court’s express guidance not to expand this decision and will refrain from applying its reasoning in a way that will usurp the derivative work right set forth in the Copyright Act. We will continue to monitor these cases and will speak out and file additional amicus briefs where needed.