News Media Alliance Calls on Supreme Court to Protect Copyrighted Content against Google’s Unauthorized Copying

FOR IMMEDIATE RELEASE

Arlington, VA – The News Media Alliance today filed an amicus brief with the Supreme Court in support of Oracle in the Google v. Oracle (docket no. 18-956) case concerning Google’s unauthorized copying of parts of Oracle’s computer code when developing applications for the Android operating system. The Alliance brief rebuts Google’s argument that its use of Oracle’s code was justified under the four-part fair use test used by U.S. courts, drawing comparisons to Google’s widespread and unauthorized use of news media content and its effect on the news media industry.

Alliance Senior Vice President and General Counsel Danielle Coffey stated, “There have to be limits to fair use, otherwise it will eat the world. For the last decade, sweeping exemptions have allowed Google to defend against almost any reproduction of quality content, including journalism, which requires tremendous investment that goes unrecovered when misappropriated. Like news publishers, companies like Oracle depend on robust copyright protections that promote innovation and creativity in the online ecosystem, and we must stand together against such blatant misrepresentations of law and abuses of market power.”

The Supreme Court is asking the parties to address two questions: 1) whether copyright protection extends to a software interface and 2) whether Google’s use constituted fair use. The Alliance brief focuses solely on the second question. The fair use test requires courts to consider the purpose and character of the use, nature of the copyrighted work, the amount and substantiality of the portion copied, and the market effect on the original work.

The Alliance establishes in its brief that Google’s use is not fair use, pointing out that Google’s use of the code is not transformative, but merely copying that allows Google to avoid acquiring a license or doing the hard work itself, similar to the way in which it uses original news content. The brief goes on to counter Google’s other fair use claims, including that its use was “non-commercial”; that the code would be entitled to minimum copyright protection; that the copying was insignificant as Google only copied a “small percentage” of the code; and that the Supreme Court should focus only on direct competition, showing how all of these arguments are fundamentally flawed. (See detailed key points below.)

Coffey continued, “The fair use defense was intended to outline exceptions to the paramount copyright protections afforded by our Constitution, but a constant stream of court decisions have allowed the exceptions to swallow the rule. There must be a limit to Google’s reproduction and monetization of quality content. Courts should ensure compensation to the creator; in our case, producers of local news coverage that is necessary to an informed society and functional democracy. Google should be required to do the hard work, just like everyone else in the marketplace, and when it does not, the courts should hold it responsible. We hope that this case is the first step in that process.”

Google appealed the case to the Supreme Court in January 2019 after two decisions by the U.S. Court for the Federal Circuit held that Oracle’s code was copyrightable and that Google’s use was not fair use under the Copyright Act. The Supreme Court accepted the case in November 2019, despite the federal government’s recommendation that the Court should decline to hear the case.

The Alliance asks that the Supreme Court affirm the Federal Circuit’s decisions.

The case is currently scheduled for a hearing on March 24, 2020.

Below are key points from the Alliance’s amicus brief, which can be viewed in full here. 

Key Points from the Alliance’s Amicus Brief:

1. The Alliance argues that Google’s use of the code was not “transformative,” as it merely incorporated and integrated Oracle’s code into Android while adding some material to it, allowing Google to avoid doing the hard work itself. Drawing attention to Google’s use of protected news content to feed its news aggregation and machine learning efforts, the Alliance’s brief notes that Google could create or license such content itself and “the fact that this might be difficult, time-consuming, and expensive for Google to do only serves to illustrate the value of what is being expropriated for free.” The consequences of determining such use as “transformative,” and thereby fair use, would be immense, diminishing the value of original content.

2. The brief also notes that Google’s claim that its use was “non-commercial” does not hold water. The existence of some non-commercial use cases and the fact that the code was open source in certain circumstances does not render Google’s use non-commercial.

3. Meanwhile, with regards to the second factor, Google’s argument that the code would be entitled to, at best, minimal copyright protection disregards legislative history and would create an unequal playing field by elevating “works with ‘aesthetic appeal’ to the highest level of protection,” while demoting other works “to second-class copyright citizenship.”

4. Google’s argument that it copied only a small percentage of the code is misleading in the digital environment. The third fair use factor requires analyzing not only quantitative values, but also qualitative factors and focusing solely on the percentage of the whole work copied can be misleading. As the brief notes, in the digital ecosystem, even small nuggets can be valuable, as exemplified by the role of snippets in news consumption.

5. Lastly, the Alliance argues that the potential market effect should be analyzed broadly. Google would like the Supreme Court to simply focus on direct competition, while precedent and the intent behind the Copyright Act demand that courts also consider vertical competition and the effects on potential markets. Not analyzing vertical competition can deprive copyright owners of licensing markets, similar to those that both Oracle and so many news publishers already rely on. Google’s argument also disregards the fact that technological change “can uncover new uses and additional value for copyrighted works, and companies should retain the right to license into markets created by new technologies.” Drawing attention to Google’s use of news content on a massive scale to train its own services, the Alliance notes that if such use is considered fair because it is not the original or principal market for which the content was produced, then “copyright would be turned on its head, and incentives to originate content would evaporate.”

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Media Contact:
Lindsey Loving
Director, Communications
571.366.1009
lindsey@newsmediaalliance.org

The News Media Alliance is a nonprofit organization representing more than 2,000 news organizations and their multiplatform businesses in the United States and globally. Alliance members include print, digital and mobile publishers of original news content. Headquartered near Washington, D.C., in Arlington, Va., the association focuses on ensuring the future of news media through communication, research, advocacy and innovation. Information about the News Media Alliance (formerly NAA) can be found at www.newsmediaalliance.org.

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