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:

Copyright in a title of short story

Infringement of copyright

Can a person claim copyright in respect of title of  Story?

The Court declined injunction against the defendant for using the brand name and title “Nishabd” alleging similar to the film of the plaintiff therein. The learned Judge A.K. Sikri, J. referred to decisions of the American Courts and observed that the position is the same as under the copyright law in India:-

“12……… What, therefore, follows is that if a junior user uses the senior user’s literary title as the title of a work that by itself does not infringe the copyright of a senior user’s work since there is no copyright infringement merely from the identity or similarity of the titles alone.”

Continue reading “Copyright in a title of short story”

Copyright in the charactor of Sherlock

 Character of Sherlock is in public domain.

Facts of Klinger v. Conan Doyale Estate:

Arthur Conan Doyle published his first Sherlock Holmes story in 1887 and his last in 1927. There were 56 stories in all, plus 4 novels. The final 10 stories were published between 1923 and 1927. As a result of statutory extensions of copyright protection culminating in the 1998 Copyright Term Extension Act, the American copyrights on those final stories (copyrights owned by Doyle’s estate, the appellant) will not expire until 95 years after the date of original publication—between 2018 to 2022, depending on the original publication date of each story. The copyrights on the other 46 stories and the 4 novels, all being works published before 1923, have expired.

Once the copyright on a work expires, the work becomes a part of the public domain and can be copied and sold without need to obtain a license from the holder of the expired copyright.  Leslie Klinger, co-edited an anthology called A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon (2011)—“canon” referring to the 60 stories and novels written by Arthur Conan Doyle. Klinger’s anthology consisted of stories written by modern authors but inspired by, and in most instances depicting, the genius detective Sherlock Holmes and his awed sidekick Dr. Watson.

While Klinger did not think that it required a licence from the estate of Sir Arthur Connon Doyle, (Doyale Estate) his publishers, Random House bowed to the demand of estate and paid Rs. 5000/- and obtained a licence before publishing the Klinger’s work.

Klinger and his co-editor decided to create a sequel to A Study in Sherlock, to be called In the Company of Sherlock Holmes. They entered into negotiations with Pegasus Books for the publication of the book and W.W. Norton & Company for distribution of it to booksellers. Doyale Estate again insisted that they must obtain a licence to publish the work, which was resisted by Klinger. Doyal Estate had clearly stated it’s intention to protest with the retailers like Amazon and Barnes & Noble to ensure that the publication is not put up for sale by them. Klinger responded to this latent threat by way of a suit for declaration that there was no copyright in favour of Doyale Estate. District Judge granted the motion.

Issue before the Circuit Court of Appeal:

whether copyright protection of a fictional character can be extended beyond the expiration of the copyright on it because the author altered the character in a subsequent work. In such a case, the Doyle estate contends, the
original character cannot lawfully be copied without a license from the writer until the copyright on the later work, in which that character appears in a different form, expires.

Creativity and copyright:

Most copyrighted works include some, and often a great deal of, public domain material—words, phrases, data, entire sentences, quoted material, and so forth. The smaller the public domain, the more work is involved in the creation of a new work. The defendant’s proposed rule would also encourage authors to continue to write stories involving old characters in an effort to prolong copyright protection, rather than encouraging them to create stories with entirely new characters. The effect would be to discourage creativity.

Copyright in characters:

From the outset of the series of Arthur Conan Doyle stories and novels that began in 1887 Holmes and Watson were distinctive characters and therefore copyrightable. They were “in-complete” only in the sense that Doyle might want to (and later did) add additional features to their portrayals. The resulting somewhat altered characters were derivative works, the additional features of which that were added in the ten late stories being protected by the copyrights on those stories. The alterations do not revive the expired copyrights on the original characters.

Perpetual copyright in characters:

There is no copyright infringement of a story or character that is not under copyright. Anyway it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee.
With the net effect on creativity of extending the copyright protection of literary characters to the extraordinarylengths urged by the estate so uncertain, and no grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic. The spectre of perpetual, or at least nearly perpetual, copyright (perpetual copyright would violate the copyright clause of the Constitution, Art. I, § 8, cl. 8, which authorizes copyright protection only for “limited Times”) looms, once one realizes that the Doyle estate is seeking 135 years (1887–2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.

[Source: Klinger v. Conan Doyle Estate (7th Cir.)]