HPA Tech Retreat: An Update to Compelling Copyright Issues

At the HPA Tech Retreat in Rancho Mirage, California, Thompson Coburn partner Jim Burger presented his annual update on activities in Washington D.C. relevant to the media and entertainment business. Among the numerous copyright issues that Burger examined was the long-running case of Oracle America v. Google, which is centered on whether or not Oracle’s Java APIs are copyrightable. Google used early versions of the APIs to create its Android operating system.

Burger reported that Google, which copied 37 Java APIs from then-owner Sun Microsystems to build upon the Android operating system it bought in 2005, said it did so under the provisions of fair use. When Oracle bought Sun in 2009, the acquisition of the Java language was a key “get.”

The company sued Google in 2010 for $8.8 billion in a California District Court for copyright violation, saying it developed Android without a Java license and copied its APIs. In 2012, the jury found that Google infringed on the copyright related to the code and documentation of the APIs, but were deadlocked on whether they fell within fair use. In 2014, the judge at the District Court found the APIs were not copyrightable.

“In 2018, the Federal Circuit Court reviewed the case for fair use using the four factor test,” said Burger. “It held that Google’s use — because they’re making money on ads — is commercial but not transformative. Google copied far more than was necessary, and Android devastated the mobile phone market. In other words, it was not fair use.”

Since then, Google petitioned the Supreme Court, and 26 amicus briefs were filed to support it (and only two for Oracle). That case is expected to come before the Supreme Court next month. The outcome is likely to have a significant impact on the software due to the widespread use of APIs.

Burger also gave an update on who or what can hold a copyright. In 2014, the U.S. Copyright Office determined that the macaque Naruto who took a selfie can’t hold the copyright for it. PETA (People for the Ethical Treatment of Animals) had brought the case against wildlife photographer David Slater. “Only a human or a corporation can hold a copyright,” said Burger. “But what about AI?”

He reported that WIPO (World Intellectual Property Organization) is discussing the topic with some level of concern. “People are worried if there’s a copyright issue here if AI creates content not expected by either the programmer or the user,” said Burger. “Will we get to the point where AI creates content the programmer didn’t conceive of? Does the machine get a copyright?” He noted that the courts have determined that a style can be copyrighted, which Burger believes will “be a disaster.”

In answer to questions, Burger stated that the end of the Paramount Consent Decrees could likely have long-term impact, although he didn’t detail the possible outcomes. He also noted that net neutrality is “truly dead.”