Several years ago now, Oracle waged a copyright infringement war against Google for its copying of Oracle’s Application Programming Interface or “API.” That epic faceoff resulted in an initial win for Google in a federal trial court in San Francisco, but Oracle bested the search engine giant on appeal when Oracle scored a huge reversal before the Federal Circuit Court of Appeals in Washington, D.C.
With the case now back before the trial court, both sides are gearing up for another epic courtroom showdown over the meaning of two very important words in the Copyright Act: “fair use.” Fair use is a defense to copyright infringement—think of it as a “get out of copyright jail free” card—and Google will no doubt argue mightily that it was “fair” for it to copy Oracle’s APIs. The trial judge just recently ruled that the issue of fair use will be tried first to the jury. If it finds that Google’s use of the API was “fair,” no copyright infringement liability attaches. If the jury rejects Google’s fair use defense, the jury will wade into the complex arena of copyright infringement damages. It is fair to state that the stakes will be sky high on both sides of the courtroom, and the ultimate outcome may lead to another round of appeals with important copyright law precedent following thereafter.
Many questions will be raised as these two tech titans prepare to square off for round two. One question, as posed by ProgrammableWeb, has crept into the conversation: “Will the Ninth Circuit’s ‘Dancing Baby Case’ Affect the Outcome in Oracle v. Google?” What’s the Ninth Circuit’s “Dancing Baby Case,” you ask? Now that your curiosity is piqued, read on.
The Ninth Circuit’s dancing baby case is a recent (and important) decision involving the intersection of copyright infringement and the doctrine of “fair use” in our online, networked world. In that case, Ms. Stephanie Lenz posted a :28 second video on YouTube of her young, smiling toddler dancing and running to the music playing in the background. Ms. Lenz’s :28 second cinematic achievement would have been lost in the mountainous sea of similar YouTube videos but for one thing: the music to which the young toddler was dancing was “Let’s Go Crazy!,” the smash hit by the Artist Formerly Known as Prince (who was actually known as Prince when the song first debuted, but I digress).
Soon after Ms. Lenz posted the video, Prince’s copyright surrogate, Universal Music Corp. (“Universal”), expressed its displeasure with Ms. Lenz’s publishing her toddler’s dancing ways. Universal sent a “take down” notice to YouTube, demanding that Ms. Lenz’s video be scrubbed from the site because she had no authorization to post a video of her youngster getting crazy to Prince’s music. Ms. Lenz ultimately “lawyered-up” and turned the tables on Universal when she sued it claiming that she had a “fair use” to post the video and that Universal could not have had a good faith belief that Ms. Lenz was infringing on Universal’s copyright.
After nearly seven years of litigation over this :28 second clip, the Ninth Circuit Court of Appeals ultimately held last month that Universal should have considered whether Ms. Lenz had a legitimate “fair use” defense before sending the take down notice to YouTube. The Ninth Circuit sent the case back to the trial court for the jury to consider whether Universal had a “good faith” belief that Ms. Lenz’s video was infringing and, if not, whether Ms. Lenz is entitled to damages for Universal demanding the video be removed. That case will soon be back before the trial court for consideration of these issues. .
So, will the Ninth Circuit’s Dancing Baby “fair use” case have any impact on the Oracle v. Google “fair use” dispute? It seems doubtful, for a variety of reasons.
The Google and Dancing Baby cases involve fundamentally different legal issues under copyright, even though both cases are broadly tied to the issue of fair use. Google involves the issue of whether the copying of computer code can be considered “fair use” because, for example, that computer code is functional, or perhaps represents the only way to express the “idea” embodied in that code. The fact that Java was licensed as “open source” by Sun Microsystems before it was acquired by Oracle may also have a bearing on whether Google’s copying was “fair.” In contrast, the central copyright issue in Lenz v. Universal is whether reproduction of a portion of a song was “fair.” The works at issue in both cases are fundamentally different, as is the nature and type of copying involved. Whether “fair use” applies in a specific case turns on the unique set of facts presented. The facts involving a dancing baby and a :28 second clip of music are drastically different from whether computer software can be copied for the purposes of creating a commercial product.
Although both cases involve the common legal issue of “fair use,” the commonality pretty much ends there. If Google is to prevail on its fair use defense next year, it’s hard to see how the dancing baby “fair use” case precedent can be of much help. Regardless, it will be interesting to see how this all plays out in a San Francisco courtroom next year.