A Brief on the Supreme Court Google v Oracle Amicus Brief

February 24, 2020

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DMLA joined nine other organizations that represent authors, artists, and other creators across the spectrum of copyright discipline in filing an amicus brief before the Supreme Court on behalf of Oracle in the ongoing Oracle v. Google case. The Supreme Court agreed to hear the case on two questions 1. Whether copyright protection extends to a software interface. And 2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. Our DMLA brief only addressed the second fair use question as this case presents the first opportunity in 25 years for the organizations to ask the Supreme Court to provide guidance on the fair use doctrine.

All associations rely on copyright law to protect their work and to maintain a robust licensing system and know that any fair use ruling will affect all creators across all disciplines.

The ten creators’ rights organizations include:

American Photographic Artists, Inc. (“APA”)
American Society of Journalists and Authors (“ASJA”)
American Society of Media Photographers, Inc. (“ASMP”)
The Authors Guild, Inc. (the “Guild”)
Digital Media Licensing Association (“DMLA”)
Graphic Artists Guild, Inc.
National Press Photographers Association
North American Nature Photography Association
Science Fiction and Fantasy Writers of America, Inc.
Western Writers of America, Inc.

The crux of the brief addresses the expansion of the fair use doctrine after the term “transformative use” was introduced in the last Supreme Court case Campbell v. Acuff-Rose Music, Inc. involving parody of music in a rap song.

Specifically, courts have extended the meaning of “transformative use” far beyond the Court’s intended construction of a “new expression, meaning, or purpose,” and found transformative use where there is merely a new audience, technology, or platform areas that should be reserved for the copyright owner. At the same time, once some courts find an allegedly transformative use, the statutory factors are ignored or viewed in a manner that makes them automatically favor fair use. Further, some courts applying the transformative use test have seemingly ignored Campbell’s instructions to consider the impact on the value of the works if the challenged use was to become widespread and unrestricted.

Additionally, as a matter of law and policy, the organizations in this brief believe that judges are in a better position than juries to make fair use determinations. A jury trial requirement would not only overturn decades of established copyright law, but would also discourage small businesses and independent creators, who cannot afford the high costs of a trial, from enforcing their rights against clear infringers.