U.S. Supreme Court No Help to Google in API Copying Case

Back in October 2014, the U.S. Supreme Court was asked to take up the appeal for Oracle v. Google (Oracle America, Inc. v. Google Inc.). This case offered the Supreme Court a chance to weigh in on the IP protections afforded software. After receiving the requested input from the Solicitor General, the Supreme Court opted to follow the Solicitor General’s suggestion and denied the writ of certiorari. This leaves standing the Federal Circuit Court’s decision that the “declaring code and the structure, sequence, and organization of the 37 Java API packages” were entitled to copyright protection.

The Solicitor General’s recommendation was premised on several factors included a rejection of a distinction between declaring code and implementing code and an assertion that many of the anti-copyright arguments presented would be better handled as a matter of fair use.

Many of the arguments presented in support of the notion that APIs should not be covered by copyright included an implicit distinction between declaring code and other elements of the software. The Solicitor General’s brief did away with this idea by using a statutory interpretation of ‘computer program’ to include both declaring code and implementing code. The brief goes as far as to state: “Nothing about the declaring code at issue here materially distinguishes it from other computer code”.

The argument for denying copyright for declaring code asserted that declaring code was a functional aspect of the program designed to perform a process and that copyright protections could not extend to cover such aspects. By doing away with the distinction between declaring code and other parts of the program, the Solicitor General’s brief relies on the express intent of the statute to provide copyright protection for computer programs despite their functional aspects. This bolsters the proposition that APIs are copyright eligible as they are simply another piece of the program. Thus, even though the declaring code may have functional aspects it is still entitled to copyright protection like any other computer program or portion thereof.

The Solicitor General’s brief provides some guidance as to further consideration of APIs. The brief notes that arguments directed to interoperability should be directed to a fair use defense rather than attempting to carve an exclusion from copyright protection. However, the discussion notes that in this case the copying was not done so that the Android platform was interoperable with the Java platform or programs. Instead, the copying was done “so that programmers familiar with the Java platform would be able to switch over to the Android platform without having to learn entirely new commands for invoking commonly used methods” which would appear to undermine any fair use claim based on interoperability.

The Supreme Court in refusing the appeal has provided the opportunity for a more suitable case to come before it which may allow the Court to better address the underlying distinctions between copyright and patent protections available to software. While some would have preferred a clear signal from the Court at this time, the lessons learned from the Solicitor General’s brief may provide a potential roadmap as to how to avoid some of the pitfalls from Oracle v. Google. Although Google still has the chance to argue their fair use defenses in the lower courts this case will likely be focused on copyright issues from here on out.

What do you mean I can't display the picture I bought? Photographs and Copyrights

So you have a photograph which you purchased some years ago of a beautiful early morning harbor view.  This photo would be perfect as a wall display in your commercial real estate office on the waterfront.  You have an enlargement made of the photograph and hang it in your office for all to see.

Not long after the picture is put on display, you receive an email from an attorney representing the photographer who asserts that you have no right to publicly display the photograph or to make an enlarged version of it, and asks that you immediately take down the photograph and destroy it. 

Is such a demand legitimate?    Yes it is.              

The photograph you purchased is subject to copyright protection which has a variety of associated rights.   Your purchase of the photograph provides ownership of the physical copy but not the associated copyright.  The purchase of the photograph does not give you any rights of copyright unless specifically conveyed in a written agreement between you and the copyright owner, in this case the photographer. 

As the owner of the photograph, you may display the photograph for your own pleasure, such as display in your home or private office.  But public display of the photograph is a right of copyright reserved to the copyright owner unless separately contracted for.

What to do now?  Work out a settlement with the photographer which may entail paying some amount for the right to commercially display the photograph.  Or comply with the demand to take down the photograph and destroy the copy.

Photographs, works of art and other copyrightable works are protected by copyright from the moment they are created.  The photographer has the exclusive right to reproduce his or her photograph and to control use of the photograph.  Without permission from the photographer (or other copyright owner), you cannot copy (in hard copy or electronic form), sell, distribute, publicly display or create derivative works of the photograph.

If you are contracting with a photographer to create photos for you, you should be mindful of the rights of copyright you wish to acquire in addition to a physical copy of the photograph.  You may wish to acquire all rights of copyright or just some.  It is often easier to negotiate a transfer of copyright interest at the time of engaging the photographer when he or she is more likely to be eager for the business, rather than later when circumstances may make the transfer of copyright less appealing.

The situation is similar for other works of art.  Laws in other countries are generally similar but of course individual country laws must be reviewed in specific situations.

If you acquire a photograph from a stock photo organization, the rights for use of that photograph are usually specified in the terms of sale or license.

There can be many nuances to transactions involving photographs and other artistic or visual works, and therefore prior consultation with an experienced IP attorney would be prudent.

The Adoption of a Competitor's Trademarks as Search Terms In Google AdWords May Not Be Such a Great Idea

Google AdWords and similar services display highly prioritized links as search results when someone enters a predetermined search term into a search engine.  It wasn’t long after such services became available that companies realized that by using trademarks and product names of a competitor as search terms with such services, a company could greatly increase the likelihood that a party performing an online search for the competitor’s products or services could be diverted to the website for the potential economic benefit of one other than the trademark owner.   The practice of using a competitor’s trademarks and product names in this manner comes with some risk.

Typically, trademark infringement results when the use of a mark by one company in conjunction with its own products or services is reasonably likely to result in confusion in the marketplace with the use of a similar mark by another having superior trademark rights.  The question of whether there is a likelihood of confusion has typically been viewed as of the time of the acquisition of a product or service.  However, under a legal doctrine known as “initial interest confusion” courts have found parties liable for trademark infringement in circumstances where a potential consumer was initially confused as to the source of origin of the product or service, but where no confusion existed as of the time of the ultimate acquisition of the product or service.

In view of the adoption of the initial interest confusion doctrine by some courts, there is a risk that the use of the trademarks or product names of a competitor as search terms to increase the potential economic benefit of another could result in a cause of action for trademark infringement. For this reason, such practices are generally not recommended.

GOOGLE and ADWORDS are trademarks of Google Inc.