1. I Has Moar Flava: Nine Copyright Observations About the myVidster Case

    Heh, He Said “Dicta”

    Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.

    So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:

    Are Wieners Copyrightable?

    1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.

    * Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them Read More»

  2. Copyright Protection of APIs after Oracle v. Google: Poppin a Whelan

    Part VI: Everything That’s Old Is New Again (but it’s Still Overruled)

    Last time, we examined Oracle’s strategy to overcome certain doom under the abstract-filter-compare test: pull back and look at the big picture. In other words, don’t focus on the line-by-line computer code, but look at the Java API as a whole—how the “methods” (individual programs that comprise the API) are organized and named.

    The problem was that, even with the change in perspective, Oracle had serious problems under the abstract-filter-compare test because one of the things you’re supposed to filter out is expression required for interoperability or compatibility. As it turns out, the way the Java API was organized had everything to do with interoperability and compatibility. If you grant copyright to the way the API is organized internally, you’d interfere with the ability of programmers to program in Java, or, really, for anyone to use Java.

    So Oracle needed a new test. And it turns out, if you go back far enough, you’ll find a test for determining infringement of copyright in software that is much friendlier to Oracle. It is from decision known as Whelan. But first, a short history lesson.

    Computer software has … Read More»

  3. Copyright Protection for APIs after Oracle v. Google: The Trees Mattered More than the Forest

    Part V: Oracle Wanted the Court to See the Forest for the Trees

    Last time, I explained the painstaking “abstraction-filtration-comparison” test (or “AFC test”) that most courts use to determine the extent of copyright protection for computer code. The test is tedious and difficult to apply because you have to look at the software at several levels of abstraction—from basic concept to actual lines of code—and apply the test to each level.

    Oracle’s Forest

    From Oracle’s point of view, the problem with the AFC test isn’t so much that it’s difficult—Oracle has plenty of money for experts and lawyers—but that Oracle loses under the AFC test. Recall that Google deliberately avoided copying the protectable part of the Java API code (the implementation), and the rest of the Java API code was (the declaration) unprotectable under the Merger Doctrine. What Oracle needs is protection for a higher level of abstraction, but the individual methods are so short, there just isn’t enough levels of abstraction before you’ve run out of protectable expression and are completely engulfed by ideas, processes and functionality.

    So Oracle needed a new way of looking at the problem: to stop looking at the API as a set … Read More»

  4. Oracle v. Google: The Challenge of Proving Copyright Infringement in Software: Abstract, Filter, Compare, Repeat

    Part IV: Why Oracle Needed a New Legal Theory Worse Than Huey Lewis Needed a New Drug

    Last time, we looked at why half of each Java API “method” wasn’t copyrightable (because there was only one reasonable way to express the functionality) and that the other half of each Java API was probably copyrightable.* But then I dropped a little bomb. It turns out, Google didn’t copy the copyrightable part of the Java API. It had its own programmers code them from scratch. Oracle appears not to have disputed this.

    * Again, I’m kind of skeptical about this. At least with respect to some of the really simple APIs, the Merger Doctrine must surely apply. Within the confines of computer language and desired functionality, there can’t be very many reasonable ways to code for that functionality. At the same time, apparently 97% of Google’s versions of the Java APIs were different from the original code, which suggests that Google managed for find different ways to code the same APIs. I just find that kind of hard to believe.

    At that point, you probably exclaimed, “Then what was Oracle suing about?”* That’s a really good question.

    * Well, at least Read More»

  5. Oracle v. Google: Copyright, Coding Choices and the Merger Doctrine

    Part III: What Happens to Copyright Protection When There’s Only One Reasonable Way to Code Something

    Through philosophical discussions of motorcycle maintenance, pancakes and old 1980’s TV ads involving peanut butter and chocolate, my last two posts can be boiled down into three fundamental rules of copyright law:

    1. There is no copyright protection for ideas, facts, functionality, etc., or where the expression is dictated by outside forces, such as tradition, efficiency or compatibility.

    2. Where a work has both unprotectable elements and protectable elements, you have to conceptually filter out the unprotectable elements, focusing on just the protectable expression.

    3. But, when there’s only one reasonable way to express an idea, fact, function, etc., that entire expression is unprotectable (because otherwise you’d get de facto copyright protection over the idea, fact, function, etc., in violation of principle no. 1).

    These principles are very important—fundamental even—for all types of copyrightable works, but they are central importance for computer code precisely because computer code is fundamentally functional. Therefore, these principles play the key role in the court’s holding in Oracle v. Google that the Java APIs are not copyrightable.

    I Do Declare

    The great thing about a Java “method” is … Read More»

  6. Copyright and APIs after Oracle v. Google: Functional Expression or Expressive Function?

    Part II: When Expression and Function Collide

    We’re talking about computer code in Oracle v. Google, and computer code is challenging because it’s expressive but also functional. Last time, I explained that when functionality gets mixed up with expression, we try to separate the expression from the functionality and protect just the expression. But I implied that sometimes they can get too mixed up to be separated. What do we do then? A couple of examples might help.

    Consider a manual for motorcycle maintenance that describes a method for cleaning out a motorcycle’s carburetor. The manual is certainly copyrightable, but you have to exclude from copyright protection the method for cleaning the carburetor. If you photocopied the pages describing the method, you’d be violating copyright. But if you described the method in your own words, you’d be fine. The expression is what’s protected, not the ideas (or facts or functions).

    With software, this principle takes on overwhelming importance, since software is, by its nature, functional. It makes computers do useful things. Indeed, it may strike some (non-developers) as strange that computer code should be protected the same way novels, movies and music are protected—that code can be “expressive” … Read More»

  7. Copyright and APIs: After Oracle v. Google, Are Developers Safe?

    Part I: APIs and IP

    The big Oracle v. Google order holding that the Java API is not copyrightable is now about two months old, but software developers are still talking about it because APIs (“application programming interfaces”) are so crucial to what developers do. I don’t think it’s an exaggeration to say that APIs are an integral part of the who technology ecosystem that we take for granted.

    An API is a bit of software code that runs between the application you’re developing and another (usually larger) piece of software, such that your application may use one (of several) functions provided by that other piece of software. A familiar example would be a restaurant-review application or website (like this one) that shows the user a map of the restaurant in question. This is possible because Google (or MapQuest or whoever) made an API with that functionality and, just as important, released that API to the developer of the restaurant app.*

    * I’m really stuck for a good metaphor here. In some ways, an API is like how Provence sells lots of nice products at its restaurants/stores, but you can buy Provence bread at the Green Hills Kroger. Read More»

  8. Music-Locker Services: DMCA Protection and the “Single Master” (Part 9 of our Online Music Services Series)

    What We Did Learn (Sort of) from the MP3Tunes Decision

    In our last post, we looked at what the MP3Tunes decision didn’t tell us–that it didn’t put the music industry’s best argument to the test.  We looked at the contours of this “nuclear option,” including the elephant-in-the-room possibility that the music industry could once again go after individual consumers.  In this post, we’ll look at what the MP3Tunes decision did tell us–sort of–about the legality of music-locker services.

    DMCA Safe-Harbor Protection Redux

    As with Grooveshark, music-locker services have two ends.  In one end, the user uploads song files.*  Out the other end, the service “streams”** the song files to the user’s various devices.  Unlike Grooveshark, however,, the subscribers can enjoy only their own music (whereas Grooveshark users could enjoy everyone else’s music, too).  This might (or might not) make a big legal difference.

    Apple’s service will have a major difference.  With Apple’s “Match” service, if you purchased your music through Apple’s iTunes store, you won’t need to upload the song file at all–you can “stream” Apple’s own copy of the song file.  Apple has obtained licenses from the rights holders to do this.

    **  I put stream in Read More»

  9. Music-Locker Services: Is in the Cloud in the Cards? (Part 8 of Our Online Music Services Series)

    What the MP3Tunes Decision Tells Us About Music-Locker Services

    (I know I said that our next posts in our Online Music Service Series would be about Pandora and Turntable.fm, but the recent decision in the MP3Tunes case has inspired me to look at the Amazon, Google and Apple music-locker services, instead.  We’ll use the MP3Tunes decision as a spring-board for discussing music-locker services.  We’ll get to Pandora and Turntable.fm next week.)

    You might have heard about the decision handed down earlier this week in Capitol Records, Inc. v. MP3Tunes, LLC.  You might especially have heard that the decision is “good news” for “music-locker” services like Amazon’s and Google’s–and, by extension, that Apple was foolish to obtain licenses.  You might even have heard that “music-locker” services are now definitely 100% legal.

    The decision certainly wasn’t bad news for Amazon and Google.  We have additional confirmation that providers of music-locker services are not ineligible for DMCA safe-harbor protection.  Which we all figured was the case.  The most we can say is that Amazon has gone from about 90% certain, to about 92% certain, that the mere fact that its music lockers are likely to be host to infringing content won’t, … Read More»

  10. Overview of the New Online Music Services: Part 3 of Our Online Music Service Series

    Seven Different Ways to Get Your Recommended Daily Requirement of Music

    This is the third installment of our series on the legal aspects of online digital music services.  We turn now to the services themselves:  here are thumbnail sketches of the six major new online music services.  For those not in widespread public release, our information is derived from press reports, rumor, scuttlebutt and innuendo.  When we start examining the services in detail, we’ll add links from here to the associated blog posts.

    Pandora OK, calling this “new” is a bit of a stretch, but it really kicked off this new way of listening to music.  Because it has a track-record of success, it’s a good measuring stick to set against the newer services.  Pandora is free with advertisements.  It does not play music on demand, but it does a good job of playing music you’ll probably like.  It operates by “streaming” music over the internet (but we’re not sure what sort of streaming is used or any of the specifics).  Pandora does not obtain licenses for its music directly from copyright holders but operates under the statutory “webcaster” license.

    Spotify Free/Unlimited:  In America, this is the newest such … Read More»

Rick and Tara are experienced lawyers who have set out to serve clients in a new way. Rick's roots reach back to his Silicon Valley home, where he first developed his litigation-oriented practice before moving to Nashville in 2004. Tara got her start in the music publishing business in Nashville in 1998 and has used that experience to form the basis of her transactional law practice since graduating from law school in 2004.
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