Oracle defeats Google Fair Use Argument over Java Code Packets

(ORACLE AM., INC. V. GOOGLE LLC
No. 2017-1118, 2017-1202, 2018 WL 1473875 (Fed. Cir. Mar. 27, 2018)

by Nancy Wolff, DMLA Counsel

Last week the U.S. Court of Appeals for the Federal Circuit reversed the U.S. District Court for the Northern District of California’s ruling of fair use in Oracle America, Inc. v. Google LLC, and held that a verbatim and non-transformative taking in the presence of an actual or potential licensing market fatally undermined the defense. Oracle had sued Google for copyright infringement, alleging that Google had unlawfully used 37 packages of Oracle’s Java application programming interface – “pre-written Java source code programs” that serve as shortcuts for various computer functions to save programming time – in its Android-powered devices. Google copied verbatim 11,500 lines of Oracle’s copyrighted computer code as well as the structure, sequence, and organizing of the packages. After a second jury trial on fair use, Google prevailed on its fair use defense, and Oracle appealed after the district court rejected its post-trial motion for judgment as a matter of law.

The Federal Circuit disagreed with the district court’s assessment, and analyzed each of the four fair use factors in 17 U.S.C. 107. In particular, under the first factor (nature and purpose of the use), the court held that Google’s use of Oracle’s code was both commercial and not “transformative” because the purpose of the software packages in Google’s Android operating system was the same as the purpose of the package in Oracle’s Java platform; Google did not change the expressive content or message of the code; and use of the code in smartphones as opposed to other computer hardware did not constitute “new context.” As many courts do, the Federal Circuit did not pay much heed to the second factor (nature of the copyrighted work), but emphasized under the third factor (amount of the work used), that the taking at issue here was more than was defensible. For instance, there was no dispute that only 170 lines of code were needed to write in Java programming language, but Google copied 11,500 lines.

The court spent considerable time discussing the fourth factor (effect on the potential market), focusing on harm to actual markets for the copyrighted work, as well as the market for potential and derivative uses. The court noted that the record clearly showed actual market harm in that Oracle’s copyrighted works had already been used in mobile devices, that Google directly competed with Oracle using Oracle’s own code, and that the existence of the free Android operating system caused significant damage to Oracle’s negotiating position with third parties like Amazon. The district court also had failed to consider potential market harm, including licensing Java “for smartphones with increased processing capabilities”; importantly, the court observed that just because Oracle had never built its own smartphone device was irrelevant “because potential markets include licensing others to develop derivative works.” Because factors one and four weighed heavily against fair use (factor two weighed in favor, and factor three was likely against), the Federal Circuit reversed and remanded for a trial on damages.

Even in industries unrelated to computers, mobile devices, software, and source code, the court’s broad pronouncement that “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform” is both powerful and beneficial to creators and licensors of copyrighted content. DMLA’s amicus brief with the support of the coalition of Visual Artists– and one of many amicus briefs in this hotly contested case– helped explain to the court of appeals the importance of licensing markets in fair use cases in general. Ultimately DMLA supported the winning argument and contributed to the creation of appellate-level precedent that will help image licensors everywhere in responding to many infringement claims, as it turns on harm to the licensing market.

TIME TO CONTACT YOUR CONGRESSIONAL REPRESENTATIVE REGARDING THE SMALL CLAIMS COURT BILL

Ask Your Congressional Representative to Vote in Favor of H.R. 3945 – A Bill to Create a Small Claims Court!

Dear Creators and Friends of the Creative Community,

The time is now to support creators and the creator community! In early to mid-April, the House Judiciary Committee will likely consider and vote on H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act (CASE ACT) of 2017, a bill that will create a copyright small claims court for professional creators and small businesses. Your representative in Congress needs to know that you support the bill. If you haven’t contacted your representative, now is the time to do so. And if you have contacted them, now is the time to remind them that the creative community needs their support.

For many photographers, illustrators, authors, songwriters, and other creators and small businesses that own copyrighted works, enforcing their rights is simply not feasible. Litigation is expensive and most of these creators can’t afford to enforce their rights in federal court. In effect, the U.S. copyright system provides creators with rights but no effective remedies. To address this problem, the U.S. Copyright Office released a study recommending the creation of a simplified process for resolving lower value copyright claims.

On October 4, 2017, Representatives Hakeem Jeffries (D-NY) and Tom Marino (R-PA), as well as Representatives Doug Collins (R-GA), Lamar Smith (R-TX), Judy Chu (D-CA), and Ted Lieu (D-CA), introduced H.R. 3945 to effectuate the Copyright Office’s recommendations. This bipartisan bill would create a voluntary small claims court within the U.S. Copyright Office to provide copyright owners with an alternative to the expensive process of bringing infringement claims in federal court. This new court, called the Copyright Claims Board (CCB) would provide an easy and streamlined process for creators – including the ability to conduct proceedings remotely. Most significantly, participation in the court is 100% voluntary and inexpensive.

Organizations representing individual creators and small businesses have already voiced their support. Now it’s vital that legislators hear directly from creators about the importance of this issue.

Please contact your representative to ask them to support H.R. 3945. We’ve provided a sample letter here that you can send, or feel free to modify it (or use your own letter).
You can also call your representative using the list of phone numbers here.
And you can tag or direct message him/her on Twitter. Please click here, and then click on the twitter icon for your representative.

The important thing is to let your voice be heard on this important issue!

For more information, please see the following:
A copy of the bill can be found here.
A summary of the bill can be found here.
Statements of support and other information about the bill can be found here.

Please join the Copyright Alliance, DMLA and all creative community to support this important bill. Information courtesy of the Copyright Alliance.

2018 DMLA Conference Help Wanted

DMLA Conference 2018 Los AngelesDear DMLA Members,

Throughout the years you have been participating in our annual conference as an attendee. This year we are in Los Angeles and as part of the change in locale, I would also like to open to all of  you to the opportunity to participate in the programming for the conference.
Los Angeles is on the Pacific Rim, a city of creativity that is the epicenter of entertainment, music, motion and still and the producers of much of the content for the US and beyond, this opens up many topics for panels and speakers.  What would like to talk about?  What issues do you think are important for this year’s meeting?
We are just beginning our Program Committee’s work and could use a few more volunteers too.
I look forward to working with you all to bring your passion and ideas to our conference October 21-23, 2018.
Please reach out to Cathy Aron at cathy@digitalmedialicensing.org as soon as possible with your suggestions.
All the best,
Ophelia Chong, Stock Pot Images
DMLA Program Chair

New Slate of Officers for DMLA Board Presented

The DMLA Nominations and Elections Committee is pleased to announce the following slate of Officers for approval for the 2018 through 2020 DMLA Board:

  • DMLA President – Geoff Cannon, Masterfile
  • DMLA Vice President – Leslie Hughes, ispyvisuals.com
  • DMLA Secretary – Candice Murray, Shutterstock
  • DMLA Treasurer – Chris Carey, Minden Pictures
  • DMLA Officer-at-large   (4) positions
    • Tawnya Crawford, Getty Images
    • Rick Gell, Consultant
    • Nuno Silva, Stocksy United
    • Julie Zentmaier Sloane, Science Source
  • DMLA Past President – Sarah Fix, Blend Images

Ballots for Election will be sent out next week. Should you have any questions, please contact Sonia Wasco – DMLA Nominations and Elections Committee Chair, Sonia Wasco at 717-626-0296 or nominations@digitalmedialicensing.org

IMAGERIGHTS PRESIDENT AND CEO JOE NAYLOR TAPPED AS CHAIRPERSON OF DIGITAL MEDIA LICENSING ASSOCIATION TECHNOLOGY COMMITTEE

 

Boston, MA – ImageRights President and CEO Joe Naylor has been appointed Chairperson of Digital Media Licensing Association (DMLA) Technology Committee. The announcement was made by DMLA President Geoff Cannon.

As the global leader in copyright enforcement services for photo agencies and professional photographers, Naylor will investigate, discuss, and address issues involving technology that have an impact on the business of digital licensing. Naylor will aid in fostering an environment of growth and collaboration utilizing member’s technical resources and expertise as well as manage and lead technical initiatives to evolve DMLA’s digital presence and value for the membership and potential members.

“DMLA is going through a transformational period in which it is expanding its focus from just that of the U.S. photo licensing industry to the broader digital licensing industry overall, including motion, archival footage and media companies worldwide. With these new initiatives, it is an exciting to time to start my new role as chairperson of the technology committee,” said Naylor. “I look forward to working with the members to shed light on the technology that is influencing our growing industry.”

“ImageRights has always been on the forefront of technology and copyright and we are thrilled to have Joe lead our committee and to lend his expertise to our members,” adds Geoff Cannon, DMLA President.

About ImageRights

ImageRights International provides intelligent image search and copyright enforcement services to photo agencies, professional photographers and media companies worldwide to ensure that their intellectual property rights are protected and that they are compensated for the unauthorized use of their copyrighted works. ImageRights, the only company to have fully automated copyright registration with the US Copyright Office, has made copyright enforcement a truly integrated component of its clients’ daily workflow. Through its in-house license compliance team and global network of copyright attorneys, ImageRights has recovered more than $8 million in settlements and awards on behalf of its clients.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense for Mass Archiving and Re-Distribution of Copyrighted TV Content

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

Read the entire story here.

Fox News Network, LLC v. TVEyes, Inc.: Second Circuit Rejects Fair Use Defense

By: Scott J. Sholder

A panel of the U.S. Court of Appeals for the Second Circuit today issued its much-anticipated opinion in the TVEyes appeal, reversing the decision of the U.S. District Court for the Southern District of New York, and holding that TVEyes’ copying, storage, and re-distribution for viewing, downloading, and sharing, of massive amounts of copyrighted TV content was not fair use.

TVEyes is a for-profit media company offering a service that allows its clients to “sort through vast quantities of television content in order to find clips that discuss items of interest to them.” TVEyes records 1,400 channels’ worth of TV broadcasts, 24 hours a day, and makes the copied content searchable by also copying the closed-captioned text that accompanies the videos. Clients can search for videos based on keywords and play unlimited video clips, each up to ten minutes in duration, and may archive, download, and share clips by e-mail. Clients pay $500 per month for these services.

The District Court held that the searching, archiving, and watching functions offered by TVEyes constituted fair use, but that the downloading and e-mailing functions did not. Fox only challenged the “watch” function (and its ancillary functions like downloading, archiving, and sharing), but not the search function.

At the outset of its opinion, the Court of Appeals noted the similarities between this case and Authors Guild v. Google, Inc., in which the court held that mass copying of books for purposes of limited text searching was fair use, but it explained that Authors Guild “test[ed] the boundaries of fair use,” and that TVEyes “has exceeded those bounds.” In sum, the court held that TVEyes’ re-distribution of copyrighted content was only modestly transformative under the first fair use factor, but that other fair use factors outweighed any transformative purpose. Despite myriad recent case law holding that transformative use is the most important fair use factor, the TVEyes court seemed to hearken back to a slightly earlier era of fair use and reiterated that the fourth factor – market harm – is “the single most important element.”

The court held that TVEyes’ copying could be considered transformative in that “it enables TVEyes’s clients to isolate from the vast corpus of Fox’s content the material that is responsive to their interests, and to access that material in a convenient manner.” Similar to the Sony “Betamax” case, the court noted that TVEyes’ watch function was also akin to time- and place-shifting, and “certainly qualifies as technology that achieves the transformative purpose of enhancing efficiency,” and so was “at least somewhat transformative.” However, the transformative character of the use was not enough to outweigh the commercial nature of the services offered because TVEyes “essentially republishes that content unaltered from its original form, with no ‘new expression, meaning or message.’”

The court found the second factor – the nature of the copyrighted works – inconsequential, but placed significant weight on the third factor, which analyses the amount of the copyrighted works made available to the public. This factor weighed in favor of Fox because, unlike in Authors Guild where Google Books made available only snippets, “TVEyes makes available virtually the entirety of the Fox programming that TVEyes users want to see and hear,” and given the brevity of most news reports, at very least copied and distributed “the entirety of the message conveyed by Fox to authorized viewers of the original” content.

Turning to the fourth factor, the Second Circuit agreed with Fox that “TVEyes undercuts Fox’s ability to profit from licensing searchable access to its copyrighted content to third parties.” Consumers were clearly willing to pay for such a service, and TVEyes therefore “deprives Fox of revenue that properly belongs to the copyright holder,” effectively usurping the market for Fox to offer similar aggregation, searching, and licensing services for its own content. This usurpation, combined with the amount of content offered and the modest transformativeness overshadowed by TVEyes’ commercial use of Fox’s content, defeated TVEyes’ fair use defense. The court remanded with instruction to the District Court to amend its permanent injunction accordingly.

Judge Kaplan of the Southern District of New York, sitting by designation, filed a separate concurring opinion to express his disagreement with the majority’s finding that TVEyes’ uses were at all transformative. He opined that the “somewhat transformative” designation was irrelevant given that the other fair use factors outweighed the transformative use, and that issuing such dicta would serve only to confuse the already complicated question of what constitutes transformative purpose. Nonetheless, Judge Kaplan expressed his own views on why TVEyes’ use of Fox’s content was not transformative, including that the mere “enhancing the efficiency with which copies of copyrighted material are delivered to secondary issuers” was not transformative because TVEyes simply repackaged and delivered the original content with no news aesthetics, insights, or understandings.

The Second Circuit’s decision is significant in that it further defines the outer boundaries of fair use by providing a concrete example of what falls outside the doctrine, which is helpful given the arguably expansive implications of the Authors Guild decision, and by distinguishing a facially similar service from the Google Books project it deemed fair use in that case. It also signals a potential shift in focus back to the “market harm” factor of fair use, and away from a strict focus on transformative purpose, but at the same time adds to the growing sense of confusion about what may be considered transformative, or in this case, “somewhat transformative.”

Cowan, DeBaets, Abrahams & Sheppard LLP drafted an amicus brief in this case on behalf of American Photographic Artists, American Society of Media Photographers, Digital Media Licensing Association, National Press Photographers Association, and Professional Photographers of America, in support of Fox News Network.

VCG acquires 500px

BEIJING, Feb. 26, 2018 /PRNewswire/ — Visual China Group (VCG) announced on Monday, February 26th that it has acquired 100% of 500PX, INC. (500px) shares through its wholly-owned subsidiary, VCG Hong Kong LTD.

500px is one of the leading online visual creative communities in the world, founded in 2009 and based in Toronto, Canada. With more than 13 million professional and hobbyist photographers from over 195 countries and regions, the 500px community has produced over 120 million unique images diversity and creative trend. 500px is renowned globally for its community, image licensing, and custom photography.

In July 2015, VCG participated in 500px’s global expansion as a strategic investor, signing on as the exclusive distributor of 500px’s visual content in Greater China. In November 2015, VCG and 500px jointly-launched 500px.me, a localized community for professional and hobbyist photographers in China. The 500px.me iOS and Android mobile apps were successfully launched in February 2016. In the past two years, both teams have worked in close collaboration on product, technology, marketing, and business development. Today, photographers, visual contents, and social interactions are accessible in both communities for a seamless user experience, and multiple collaborative projects have been successfully executed to serve brand customers around the world.

This acquisition is another key milestone in VCG’s continued strategic development in the global imagery industry, and further investment in an already-successful partnership. VCG will strengthen its position by leveraging 500px’s premium content and world-class photographer network, while 500px will improve its service to both its community members and international brand enterprises by leveraging VCG’s years of online operational experience, technology expertise, client resources, and deep global partnerships.

Amy Jun Liang, Chief Executive Officer of VCG said: “We are excited that 500px, a world-renowned photography community, will become part of the VCG family. This is the next important move in VCG’s globalization strategy, following the acquisition of Corbis in 2016. Through the acquisition of 500px, VCG will be able to expand its role in the global content ecosystem. By combining resources in content creation, distribution channels, product and technology across the two parties, VCG will be even better equipped to produce and distribute professionally-generated content (PGC) to meet customer’s needs.”

Jeff Jordan, partner of Andreessen Horowitz, a well-known venture capital firm and one of the initial 500px investors, said: “I’m thrilled that 500px is officially joining Visual China Group, which is among the top players in the global imagery industry. The two companies are a great fit, combining VCG’s deep experience in the imagery industry with 500px’s global photographer network. I’m confident VCG and 500px will continue to drive product innovation and apply big data, artificial intelligence and blockchain technology to better serve our community members and enterprise customers around the world.”

After the acquisition, both companies will provide more professional SaaS (Software as a Service) services to visual creatives around the world, including those relating to big data, AI, and trusted timestamping technologies. Both VCG and 500px will continue to develop digital copyright services, including registration, transaction, traceability, protection, and artistic content collection. Furthermore, VCG will leverage its strengths in the imagery industry and professional communities to accelerate the growth of 500px’s community, visual content licensing and custom photography services.

About Visual China Group

Visual China Group, a public company in China (stock code 000681), is among the top image licensing companies in the world. It is the go-to choice for creative and media professionals in China, and an award-winning leader in copyright protection. Beginning with its strategic investment in 500px in 2014 and the acquisition of Corbis in 2016, VCG, together with its global strategic partner, aims to develop a global photography ecosystem focusing on visual content creation and monetization to better serve photographers, as well as creative and media professionals around the world.

About 500px

500px is one of the leading online visual creative communities in the world, founded in 2009 and based in Canada. With professional and hobbyist photographers around the world, the 500px community has produced unique images diversity and creative trend. 500px is renowned globally for its community, image licensing, and custom photography. Recently, 500px was named one of the 10 best apps for independent travelers by The Guardian, and recognized as one of Deloitte’s Technology Fast 50. 500px has worked with world-class global brands like Google, Sony, Airbnb and Lonely Planet.

Press Contact:

Company: VCG
Name: Zhang Yang
Email: marketing@vcg.com
Phone: +86-010-57950314

Company: 500px
Name: Stephanie Newell
Email: press@500px.com
Phone: +1-855-561-4584

SOURCE Visual China Group

BlockChain Registration: Proof of Existence Is Not Proof of Ownership

By Joe Naylor, President and CEO of ImageRights

There is a dangerous movement afoot; the idea that registration of your images on the blockchain is a cheap and simple alternative to registration with the United States Copyright Office. It is not.

Those providing copyright registration services based solely on the blockchain will argue that inscribing a hash of your image along with its accompanying metadata creates an immutable record of your copyright ownership. False.

Read the entire article here.