The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Some Thoughts on Google v. Oracle, from Prof. Rebecca Tushnet (Harvard)

"Categories, microworks, and market circularity."


From Rebecca Tushnet's 43(B)log:

[1.] The majority clearly says that, as with other categories of protected works, distinctions can be made within the categories, drawing lines "among" computer programs, books, and films. Not all literary works are the same; Infinite Jest gets a different kind of copyright protection than my emails do. Likewise, while the recent Warhol case at times seems to imply that the derivative works right overrides fair use, the same GvO passage says that copyright provides both reproduction and derivative works right, but also subjects all works to fair use.

[2.] One of my minor obsessions is "courts that reproduce the entire works in suit in the opinion"—whether they find for the plaintiff or the defendant, and whether they rule on substantial similarity or fair use, they never even consider whether it's ok to do so. It's obviously a good idea for purposes of understanding what the law is—a description of a song or picture will never allow a subsequent reader to understand what the protectable expression in the song or picture was—and I think obviously fair, but it's amusing to me that it happens without anyone pointing out that this must be in reliance on fair use.

Anyway, in GvO, Justice Breyer instead reproduces an entire short story, which was just minding its own business and had nothing to do with the case, in two different languages no less. And he does so in the course of suggesting that the scope of fair use would be more limited with respect to that short story than to a sentence of the same length in a longer novel. I think that's a troubling conclusion—Justin Hughes has written very well about the problem of "microworks" and the right result would probably be to say that the book of stories from which that story comes should be the proper unit of analysis for factor three.

But now I have questions: Can casebook authors use this portion of the case without fear? Could the copyright owner bring a CASE Act claim against the US as a result? I don't actually know whether claims against the US can go to the Copyright Office or have to go to the Court of Claims.

[3.] On factor four [of the fair use analysis], it was nice to see acknowledgement that (1) the licensing package Oracle offered was very different from what Google ultimately copied, and thus didn't show market harm from what Google actually copied and (2) this was a circularity problem, which should be avoided.

Also, relevant to the "mixed question of law and fact" issue, the majority says: "the jury's fair use determination means that neither Sun's effort to obtain a license [so in the Court's opinion, but likely refers to Google's effort to obtain a license -EV] nor Oracle's conflicting evidence can overcome evidence indicating that, at a minimum, it would have been difficult for Sun to enter the smartphone market, even had Google not used portions of the Sun Java API." I think that means that the jury verdict must be interpreted to have favored Google on factor four, resolving the factual part of factor four in its favor. I am not sure what that means for summary judgment in future cases, especially if factor one remains more of a legal question.