What is fair use of computer code created by another?

Google copied roughly 11,500 lines of code from the Java SE program.

The copied lines are part of a tool called an Application Programming Interface (API). An API allows programmers to call upon prewritten computing tasks for use in their own programs.

Using these API, to create a new software constituted fair use.

Oracle America, Inc., owns a copyright in Java SE, a computer platform that uses the popular Java computer programming language. In 2005, Google acquired Android and sought to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE program. The copied lines are part of a tool called an Application Programming Interface (API). An API allows programmers to call upon prewritten computing tasks for use in their own programs. Over the course of protracted litigation, the lower courts have considered (1) whether Java SE’s owner could copyright the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible “fair use” of that material freeing Google from copyright liability. In the proceedings below, the Federal Circuit held that the copied lines are copyrightable. After a jury then found for Google on fair use, the Federal Circuit reversed, concluding that Google’s copying was not a fair use as a matter of law. Prior to remand for a trial on damages, the Court agreed to review the Federal Circuit’s determinations as to both copyrightability and fair use.

Held: Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law. Pp. 11–36.

(a) Copyright and patents, the Constitution says, serve to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, §8, cl. 8. Copyright encourages the production of works that others might cheaply reproduce by granting the author an exclusive right to produce the work for a period of time. Because such exclusivity may trigger negative consequences, Congress and the courts have limited the scope of copyright protection to ensure that a copyright holder’s monopoly does not harm the public interest. This case implicates two of the limits in the current Copyright Act. First, the Act provides that copyright protection cannot extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” 17 U. S. C. §102(b). Second, the Act provides that a copyright holder may not prevent another person from making a “fair use” of a copyrighted work. §107. Google’s petition asks the Court to apply both provisions to the copying at issue here. To decide no more than is necessary to resolve this case, the Court assumes for argument’s sake that the copied lines can be copyrighted, and focuses on whether Google’s use of those lines was a “fair use.” Pp. 11–15.

(b) The doctrine of “fair use” is flexible and takes account of changes in technology. Computer programs differ to some extent from many other copyrightable works because computer programs always serve a functional purpose. Because of these differences, fair use has an important role to play for computer programs by providing a context-based check that keeps the copyright monopoly afforded to computer programs within its lawful bounds. Pp. 15–18.

(c) The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense. Pp. 18–21.

(d) To determine whether Google’s limited copying of the API here constitutes fair use, the Court examines the four guiding factors set forth in the Copyright Act’s fair use provision: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. §107. The Court has recognized that some factors may prove more important in some contexts than in others. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577. Pp. 21–35.

(1) The nature of the work at issue favors fair use. The copied lines of code are part of a “user interface” that provides a way for programmers to access prewritten computer code through the use of simple commands. As a result, this code is different from many other types of code, such as the code that actually instructs the computer to execute a task. As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google). Unlike many other computer programs, the value of the copied lines is in significant part derived from the investment of users (here computer programmers) who have learned the API’s system. Given these differences, application of fair use here is unlikely to undermine the general copyright protection that Congress provided for computer programs. Pp. 21–24.

(2) The inquiry into the “the purpose and character” of the use turns in large measure on whether the copying at issue was “transformative,” i.e., whether it “adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579. Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The record demonstrates numerous ways in which reimplementing an interface can further the development of computer programs. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself. Pp. 24–28.

(3) Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose. Pp. 28–30.

(4) The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” §107(4). Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE. The record also showed that Java SE’s copyright holder would benefit from the reimplementation of its interface into a different market. Finally, enforcing the copyright on these facts risks causing creativity-related harms to the public. When taken together, these considerations demonstrate that the fourth factor—market effects—also weighs in favor of fair use. Pp. 30–35.

(e) The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. Applying the principles of the Court’s precedents and Congress’ codification of the fair use doctrine to the distinct copyrighted work here, the Court concludes that Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law. In reaching this result, the Court does not overturn or modify its earlier cases involving fair use. Pp. 35–36.

Read Full Judgement:

Judicial Review of removal of nominated Executive Chairman of the Private Company

Removal of Cyrus Mistry from the Board of Tata Sons:

Companies Act, 2013 is focused on listed and unlisted public companies:

The requirement under Section 149(4) to have at least one­ third of the total number of Directors as independent Directors applies only to every listed public company. The requirement under Section 151 to have one Director elected by small shareholders is also applicable only to listed companies. The requirement to constitute an Audit Committee in terms of Section 177(1), a Nomination and Remuneration Committee and the Stakeholders Relationship Committee in terms of Section 178(1) are also only on listed public companies.

Duties of a nominated Director:

It is necessary that we balance the duty of a Director,under Section 166(2) to act in the best interests of the company, its employees, the shareholders, the community and the protection of environment, with the duties of a Director nominated by an Institution including a public charitable trust. They have fiduciary duty towards 2 companies, one of which is the shareholder which nominated them and the other, is the company to whose Board they are nominated.

The question as to (i) what is in the interest of the company, (ii) what is in the best interest of the members of the company as a whole and (iii) what is in the interest of a nominator,all lie in locations whose borders and dividing lines are always blurred. If philosophical rhetoric is kept aside for a moment, it willbe clear that success and profit making are at the core of business enterprises. Therefore, the best interest of the majority shareholders need not necessarily be in conflict with the interest of the minority or best interest of the members of the company as a whole, unless there is siphoning of or diversion. Such a question does not arise when the majority shareholders happen to be charitable Trusts engaged in philanthropic activities. It is good to wish that the creation gets liberated from the creator, so long as the creator does not have any control or ability to manipulate. In the corporate world, democracy cannot be seen as an ugly expression,after using the very same democratic process for the appointment of directors.

Concept of Minority Shareholder:

The Statute confers upon the members of a company limited by shares, a right to vote in a general meeting. And this right is proportionate to his shareholding as per Section 47(1)(b). Section 152 which contains provisions for the appointment of Directors, does not confer any right of proportionate representation on the Board of any company,be it public or private.

The maximum extent, to which the Parliament has gone under the 2013 Act, is to make a provision under Section 151,enabling “a listed company” to have one Director elected by such small shareholders in such manner and on such terms and conditions as may be prescribed.

One must be careful to note that both under Section 252(1) of the 1956 Act and under Section 151 of the 2013 Act, the spotlight was only on “small shareholders” and not on “minority shareholders” like the S.P. Group which holds around 18.37%.

Proportionate Representation on Board of Company:

Continue reading “Judicial Review of removal of nominated Executive Chairman of the Private Company”

State Election Commissioner must be an Independent Person not a subordinate in Government.

Appointment of Law Secretary as Election Commissioner

Constitution of India, Article 243-K:

The most disturbing feature of these cases is the subversion of the constitutional mandate contained in Article 243K of the Constitution of India. The State Election Commissioner has to be a person who is independent of the State Government as he is an important constitutional functionary who is to oversee the entire election process in the state qua panchayats and municipalities. The importance given to the independence of a State Election Commissioner is explicit from the provision for removal from his office made in the proviso to clause (2) of Article 243K. Insofar as the manner and the ground for his removal from the office is concerned, he has been equated with a Judge of a High Court. Giving an additional charge of such an important and independent constitutional office to an officer who is directly under the control of the State Government is, in our view, a mockery of the constitutional mandate. We therefore declare that the additional charge given to a Law Secretary to the government of the state flouts the constitutional mandate of Article 243K. The State Government is directed to remedy this position by appointing an independent person to be the State Election Commissioner at the earliest. Such person cannot be a person who holds any office or post in the Central or any State Government. It is also made clear that henceforth, all State Election Commissioners appointed under Article 243K in the length and breadth of India have to be independent persons who cannot be persons who are occupying a post or office under the Central or any State Government. If there are any such persons holding the post of State Election Commissioner in any other state, such persons must be asked forthwith to step down from such office and the State Government concerned be bound to fulfil the constitutional mandate of Article 243K by appointing only independent persons to this high constitutional office. The directions contained in this paragraph are issued under Article 142 of the Constitution of India so as to ensure that the constitutional mandate of an independent State Election Commission which is to conduct elections under Part IX and IXA of the Constitution be strictly followed in the future.

Read Full Judgement:

Jurisdiction of Company Law Tribunal to interfere with Commercial Decision

Insolvency and Bankruptcy Code, 2016:

An enquiry under Section 31, is the limited enquiry that the Adjudicating Authority is permitted is, as to whether the resolution plan provides:

i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment ofother debts of the corporate debtor,

(ii) the repayment of the debts of operational creditors in prescribed manner,

(iii) the management of the affairs of the corporate debtor,

(iv) the implementation and supervision of the resolution plan,

(v) the plan does not contravene any of the provisions of the law for the time being in force,

(vi) conforms to such other requirements as may be specified by the Board.

Scope of Judicial Review:

Appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.

Nirav Modi to be extradited from UK to India; Orders Magistrate

An extradition request submitted by the Government of India, the Requesting State (“GOI”) for the extradition of Nirav Deepak Modi (“NDM”):

On presentation of evidence:

“Unlike the evidence from the Defence, the evidence produced by the GOI in the case, through no fault of Counsel, was poorly presented and very difficult to navigate. Observations I note were similarly made by the Senior District Judge (Magistrates’Courts) in Mallya. I hope the GOI take these observations on board in relation to future requests.”

Para 12

In Devani v. Kenya [2015] EWHC 3535 (Admin) Aitkens LJ analysed the correct approach to
extradition u/s.84(1), as under:

“ 47. In the case of a country to which s.84(1) EA 2003 applies, a three-stage process
is involved once the DJ is satisfied that the request document itself establishes that
the conduct alleged is criminal in accordance with the laws of the requesting state.
The first stage, following the decision of the House of Lords in Norris v. Government
of the United States of America, is to identify, for the relevant charge, the “essence of
the conduct”
which is alleged by the requesting state. Secondly, the DJ must
determine, upon the assumption that the relevant conduct had occurred in the UK,
whether that conduct would be an offence under the UK law. For this purpose, the
requesting state will often produce “notional English charges” identifying the
particular UK offence which is said to be constituted by the “essence of the conduct”
alleged. Thirdly, the DJ must determine whether the requesting state has proved, on
the basis of all admissible evidence (taking account of the admissibility rules set out
in sections 84(2) – (4), s.202 and s.205 of the EA) whether there is sufficient evidence
to substantiate the conduct alleged.

My role is to consider whether a tribunal of fact, properly directed, could reasonably
and properly convict on the basis of the evidence. I am not required to be sure of guilty
in order to send the case to the Home Secretary. The extradition court must conclude
that a tribunal of fact, properly directed and considering all the relevant evidence,
could reasonably be sure of guilt.

Extracts of findings of the Magistrate:

I do not accept the submissions that NDM was involved in legitimate business and using the LOUs in a permissible fashion. It would not be in PNBs interests to create such enormous financial exposure through a financial product which the evidence from the Bank officials confirms is not designed for general business lending, I find there is no evidence of genuine import transactions and the applications for the LOUs was being done dishonestly. The statement of Rajendra Keshri is supportive of the fact the LOUs obtained by NDM’s firms were used to re-pay liabilities in relation to buyer’s credit obtained from earlier LOUs. Suggestion that buyers credit obtained by the Nirav Modi Firms was required for making payment for genuine imports from suppliers mentioned in the LOUs is not born out by statements from the dummy directors in the Hong Kong and Cairo based companies. Their evidence is that these companies were not genuine suppliers and were shadow companies controlled by NDM through several employees who were represented as directors of the
companies. NDM’s firms’ business transactions were primarily with these dummy companies. The statements demonstrate that the circulation of pearls, diamonds and gold between the NDM firms and the Dubai and Hong Kong based companies was not genuine business and the companies were being used for transferring funds generated “in the guise of sale – purchase / export – import of goods” colloquially referred to as “round tripping transactions”. Again, there no evidence demonstrating that the NDM firms had any sanctioned facility with PNB.

Although there may be no direct evidence of NDM entering into an agreement with Bank officials and his other alleged conspirators, the evidence of the links between Nirav Modi, Nehal Modi, Mihir Bhansali, Gokulnath Shetty and Yashwant Joshi alone combined with my other findings above, in particular the lack of evidence of any sanctioned limit agreed with the Bank; the manner in which the LOUs were obtained and concealed, the manner to which the LOUs was used, the actions of NDM, his brother and Mr Bhansali after the CBI investigation opened cumulatively and progressively eliminate the alternative narrative put forward on NDMs behalf. The combination of the evidence taken as a whole create an inevitable conclusion NDM, his brother, Mr Shetty, Mr Bhansali and Mr Joshi Jie Zhang, were operating together dishonestly with other associates and banking officials to defraud the PNB.

Proof of Mense Rea need not be as per English Law:

A request need not identify the relevant mens rea of the equivalent English offence for
the purposes of satisfying dual criminality. Instead it suffices that the necessary
mental element can be inferred by the court from the conduct identified in the request
documents or that the conduct alleged includes matters capable of sustaining the
mental element necessary under English law. (Para 97)

Scrutiny by the Court of the description of conduct alleged to constitute the
offence specified, is not an enquiry into the adequacy of the evidence summarised in
the request. The Court is not concerned to assess the quality or sufficiency of the
evidence in support of the conduct alleged; R (Castillo) v. King of Spain [2005] 1WLR
1043. (Para 100)

Evidence of Justice Thipsey:

Continue reading “Nirav Modi to be extradited from UK to India; Orders Magistrate”

Web series disrespecting religious symbols of a community is not acceptable in law.

The makers of web series ‘Tandav’ are not entitled to anticipatory bail. Aparna Purohit, content director of Amazon Prime Videos, denied anticipatory bail by Allahabad High Court
The basic philosophy of the Constitution is to permit the people of all faith to practice, profess and propagate their religion freely without hurting or acting against the people who profess or practice different religious faith than theirs.

Therefore, it is a onerous duty of every citizen to respect the feelings of the people of other faith even while making a fiction.

The irresponsible conduct against the inherent mandate of the Constitution of India by anyone affecting the fundamental rights of the large number of citizens cannot be acquiesced to only because of the tendering of unconditional apology after committing the alleged act of crime and indiscretion.

The reference to the disclaimer cannot be considered to be a ground for absolving the applicant of permitting the streaming of an objectionable movie online.

The use of the word “TANDAV” as the name of the movie can be offensive to the majority of the people of this country since this word is associated with a particular act assigned to Lord Shiva who is considered to be creator, conservator and destroyer of the mankind all together.

Speech or expression causing or likely to cause disturbance or threats to public order or divisiveness and alienation amongst different groups of people or demeaning dignity of targeted groups,is against the Preamble of the Constitution of India. It violates dignity, liberty and freedom of others and poses threat to the unity and integrity of the nation and may be dealt as per Sections 153-A,295-A and 505(2) I.P.C.

A brazen tendency of Hindi cinema:

This Court takes further judicial notice of the fact that whenever such crimes are committed by some citizens of the country, like the applicant and her co-accused persons, and it is made the subject matter of demonstration and public protest, the forces inimical to the interest of this country become active and they make it an issue and raise it before different national and international forums alleging that the Indian citizens have become intolerant and “India”has become unsafe place to live. Continue reading “Web series disrespecting religious symbols of a community is not acceptable in law.”

UK Supreme Court holds Uber drivers as workers subject to employment tribunal.

The definition of a “worker” in section 230(3) of the Employment Rights Act 1996 and other relevant legislation includes anyone employed under a contract of employment but also extends to some individuals who are self-employed. In particular, the definition includes an individual who works under a contract

“whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

The judgment emphasises five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber.

First, where a ride is booked through the Uber app, it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore Uber which dictates how much drivers are paid for the work they do;

Second, the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them

Third, once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. One way in which this is done is by monitoring the driver’s rate of acceptance (and cancellation) of trip requests and imposing what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes, thereby preventing the driver from working until allowed to log back on.

Fourth, Uber also exercises significant control over the way in which drivers deliver their services. One of several methods mentioned in the judgment is the use of a ratings system whereby passengers are asked to rate the driver on a scale of 1 to 5 after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and, if their average rating does not improve, eventually have their relationship with Uber terminated.

A fifth significant factor is that Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

Taking these factors together, the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance. The Supreme Court considers that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodation and with minicab drivers do not advance its case. The drivers were rightly found to be “workers”.

Continue reading “UK Supreme Court holds Uber drivers as workers subject to employment tribunal.”

Power of Civil Court to split suit into arbitrable and non-arbitrable dispute?

Section 8 of Arbitration and Conciliation Act, 1996 is as under:

Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

For interpretation of Section 8, Section 5 would have no bearing because it only contemplates that in the matters governed by Part-I of the Act, Judicial authority shall not intervene except where so provided in the Act. Except Section 8, there is no other provision in the Act that in a pending suit, the dispute is required to be referred to the arbitrator. Further, the matter is not required to be referred to the arbitral Tribunal, if (1) the parties to the arbitration agreement have not filed any such application for referring the dispute to the arbitrator; (2) in a pending suit, such application is not filed before submitting first statement on the substance of the dispute; or (3) such application is not accompanied by the original arbitration agreement or duly certified copy thereof. This would, therefore, mean that Arbitration Act does not oust the jurisdiction of the Civil Court to decide the dispute in a case where parties to the Arbitration Agreement do not take appropriate steps as contemplated under sub- sections (1) & (2) of Section 8 of the Act.

Continue reading “Power of Civil Court to split suit into arbitrable and non-arbitrable dispute?”

Arbitration of Landlord and Tenant dispute if permissible?

Remedy of Arbitration:

Arbitration is a private dispute resolution mechanism whereby two or more parties agree to resolve their current or future disputes by an arbitral tribunal, as an alternative to adjudication by the courts or a public forum established by law. Parties by mutual agreement forgo their right in law to have their disputes adjudicated in the courts/public forum. Arbitration agreement gives contractual authority to the arbitral tribunal to adjudicate the disputes and bind the parties.

Dispute between lessor and lessee:

The tenancy in question was not protected under the rent control legislation and the rights and obligations were governed by the Transfer of Property Act.

Who will decide the arbitrability of dispute?

‘Who decides Arbitrability?’ can be crystallized as under:

(a) Ratio of the decision in Patel Engineering Ltd.on the scope of judicial review by the court while deciding an application under Sections 8 or 11 of the Arbitration Act, post the amendments by Act 3 of 2016(with retrospective effect from 23.10.2015) and even post the amendments vide Act 33 of 2019 (with effect from 09.08.2019), is no longer applicable.

(b) Scope of judicial review and jurisdiction of the court under Section 8 and 11 of the Arbitration Act is identical but extremely limited and restricted.

Continue reading “Arbitration of Landlord and Tenant dispute if permissible?”

Reservations in Appointment is not creation of rigid slots for employment

Reservation in appointment:

Article 16(4) of Constitution of India:

Subject to any permissible reservations i.e.either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit.Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to61the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.

Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female.

Reservation is not rigid:

Reservations, both vertical and horizontal, are method of ensuring representation in public services. These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him.