In April of this year, the Supreme Court dropped a potential bombshell on the copyright world with its ruling in the Google v. Oracle case.
The case looked at how Google used Java APIs in their Android mobile operating system as a way to make it easier to port existing programs (and programmers) over to it. Oracle threatened legal action, prompting a long-running lawsuit that wound its way through the courts for over a decade before the Supreme Court ruled on it.
In that ruling, the Supreme Court found that Google’s use of the code was, ultimately, a fair use and did so with language that seemed to many to be extremely broad. However, while the Supreme Court did grant a broad fair use exemption in the case, the court was also emphatic that the ruling should be narrowly applied as far as it pertained to other works.
In one particularly important passage, the court said:
Generically speaking, computer programs differ from books, films, and many other “literary works” in that such programs almost always serve functional purposes.Google v Oracle Majority Opinion
One month before that landmark decision, the Second Circuit Court of Appeals was making news of its own, finding that Andy Warhol’s paintings of Prince were, as a matter of law, not a fair use of the work of photographer Lynn Goldsmith.
That ruling was seen by many as a narrowing of fair use, especially when looking at whether a new work is “transformative”. That issue was one of the key issues the Supreme Court weighed in on in the Google case.
The two rulings seemed at odds with one another, and that raised a significant question: How would the Supreme Court ruling impact decisions in the lower courts?
The Second Circuit may have answered that question, at least in part. In a recent amendment to its decision in the Warhol case, the court makes one thing clear: The Google ruling doesn’t apply here.
When the Supreme Court Doesn’t Matter (As Much)
Often times, court decisions only become turning points or major moments in hindsight. It’s often very difficult at the moment to know if a decision will be cited down the road and, if it is, to what end.
This is true even with the Supreme Court. Sometimes Supreme Court decisions have a major ripple effect through the lower courts and, other times, it’s a case that’s rarely mentioned again.
With the Google case, the Supreme Court made it clear that it wanted the ruling to be applied very narrowly. It wanted it to be applied to just the circumstances of that case or, at most, computer code as a type of work.
However, there was no guarantee that the lower courts would heed that request. Given how rarely the Supreme Court weighs in on copyright issues, fair use issues in particular, it was still at least possible that lower courts could have turned to it for guidance.
However, the Second Circuit is making it clear that they are not. Citing the “unusual context” of the Supreme Court ruling, the three-judge panel unanimously agreed that the Google v. Oracle case had no bearing on this one or any fair use analysis in an “artistic” context.
The ruling was made because the Andy Warhol Foundation sought a rehearing on the matter following the Supreme Court decision. The court granted that rehearing, but determined new oral arguments were not necessary and addressed the issues raised in an amended ruling.
There, they declined to apply the Google ruling to the case, citing the Supreme Court’s own language that computer programming is “primarily functional” and that it “makes it difficult to apply traditional copyright concepts to a technological world.”
Since the Warhol case looked at paintings based upon photographs, the Second Circuit ruled that the Google decision simply did not apply.
This is a strong indicator that the Google v. Oracle ruling, as hard won as it was, isn’t going to be a bellwether for copyright or fair use. At least not broadly.
However, this isn’t to imply that the Supreme Court’s ruling isn’t going to be an important one. The Second Circuit did hint that it may have strong impacts for computer programmers and software developers.
The ruling further separates software code from “artistic” works such as books, photographs and music. According to both courts, the functional nature of computer code means that the various tests of copyright may have to be applied differently to it.
The long-term impact of that is very unclear at this time, especially since we only have one major ruling looking at it right now.
Still, it is clear that courts are likely to treat computer code differently from other types of work, especially when looking at it in the context of fair use and what is defined as transformative.
The ruling may still have a more broad impact that the Supreme Court wanted, but one that will likely be limited to computer code.
To be clear, this is just one court and one case. Yes, it is a very important court, especially for copyright issues, and it’s a very strong message, but it is still only one.
There will be many more decisions that will tell the full story of the impact of the Google ruling. That said, this is a pretty strong indicator that courts are going to be very wary of applying it broadly.
Whether you feel this is a good thing or a bad one depends on how you feel about the Google ruling. Ultimately, though, it seems likely that courts are not looking to that ruling for guidance on non-code-related fair use cases.
That still leaves the ruling as an important one, especially with how crucial technology is in our lives, but not the major game changer some were expecting.