No Monkey Business Will Be Permitted in the Court

Under the U.S. Copyright laws “Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”  Copyright protection includes works of authorship in pictorial form, including photographs.

With this background I’d like to report on a case filed in the U.S. District Court for the Northern District of California in September 2015.  As alleged in the Complaint, sometime in 2011, a photographer by the name of David Slater briefly left his camera unattended and a 6 year old named Naruto, using Mr. Slater’s camera, took a number of selfies without any assistance from Mr. Slater.  Mr. Slater located the selfies that were taken by Naruto on his camera and, he, along with the co-defendant, Blurb, Inc., published and widely distributed the selfies online beginning in 2014, all without the authorization of Naruto.  Naruto filed the complaint against Slater and Blurb, Inc. and alleged that Slater and Blurb, Inc. infringed his rights of copyright by reason of the unauthorized distribution of Naruto’s selfies.
 
On first blush, this sounds like a fairly clearcut case of copyright infringement.  The selfies purportedly were original works of Naruto which were reproduced and widely distributed by Mr. Slater and Blurb, Inc. without Naruto’s permission. So why should these set of facts be of particular interest?  What if Naruto was a crested macaque monkey that snapped the selfies?  This was the novel question that faced the District Court in the action Naruto v. David John Slater and Blurb, Inc. The case was filed through Naruto’s “Next Friends,” People for the Ethical Treatment of Animals, Inc. (PETA) and Dr. Antje Engelhardt, a professor of behavioral ecology and anthropology.

Slater and Blurb, Inc., filed a Motion to Dismiss based on several legal theories.  First, the defendants asserted that Naruto lacked standing to pursue the claim through the courts because Naruto was a monkey.  Though PETA and Dr. Engelhardt, as Naruto’s “Next Friends,” stated that their intent was to use the proceeds from the commercialization of the selfies for habitat preservation and for the benefit of Naruto’s brethren, the defendants asserted that all of these activities would be pursued without Naruto’s consent since Naruto was not capable of providing consent.  Furthermore, the Defendants asserted that the phrase “works of authorship” in the copyright laws, relate to works by humans, not animals.

Sadly for Naruto, on January 6, 2016 the District Court, in a tentative opinion, held that the U.S. Copyright Act extends to humans, not animals, thereby dashing any hopes Naruto and his brethren might have harbored for the betterment of the primate community.  One can only imagine what the deposition of Naruto would have been like had the case continued. The moral of this story should the decision become final – there will be no monkey business in the district courts, at least with respect to claims of copyright infringement.  It remains to be seen whether Naruto will appeal the District Court’s decision.

Patent and Copyright Protection for Software API

Recently the United States Court of Appeals for the Federal Circuit had a chance to weigh in on the IP protections afforded software. When deciding Oracle v. Google (Oracle America, Inc. v. Google Inc.), the Court concluded that Google violated Oracle’s copyright in the Java API. The court reasoned that the “declaring code and the structure, sequence, and organization of the 37 Java API packages” were entitled to copyright protection. Some viewed this as a reversal of the perception that API’s were not copyrightable.

API’s (or application program interfaces) are critical elements in modern software that allows programs to interact. The API describes how one program can call to another. This is often seen as a functional requirement for compatibility. By enabling one program to use features from another program, programmers can avoid recreating large amounts of code. Using similar APIs allows programs to be more easily ported from one system to another. Additionally, APIs can encourage development by third party programmers by making interoperability easier which can lead to a richer software environment that is more appealing to customers.

While the Court’s decision revolved mostly around copyright issues, the court acknowledged the potential relationship with patent laws and indicated that computer software may be covered by both copyright and patent laws.

Copyright protection has the potential to be extremely problematic. However, patent protections are equally problematic. In truth, both forms of protection have inherent balancing factors. Patents require going through the U.S. Patent and Trademark Office application process which ensures patents meet certain requirements, such as novelty, subject matter, non-obviousness, etc. This makes seeking patent protection a large investment in both time and money. In contrast, copyright protection may be seen as considerably easier to get as there is no substantive examination process. Additionally, a copyright’s duration is considerably longer than a patent’s.

However, these differences are offset by the associated scope of protection afforded by copyrights and patents. Where copyrights are limited to a specific expression, patents may have a broader coverage for the underlying structure and functionality of the software. This can make working around a patent claim considerably more difficult than avoiding a copyrighted expression.

Software programs are currently deemed eligible for protection from both copyright and patent laws. To some, this may seem counter-intuitive since software is often considered functional since it has instructions for a process. Copyrights do not protect procedures; whereas, patents do (although neither extends protections to cover abstract ideas). However, this reasoning overlooks the fact that software programs can be viewed as having distinct aspects: namely an expressive aspect and a functional aspect.

Even when a program is written in order to provide a particular result, there can still be a variation (or expression) in the way the program is written. For example, there are a number of programing contests where programmers attempt to make the least understandable program. These obfuscated code contest entries produce functioning programs despite being nearly indecipherable as written.

Generally, programmers are encouraged to follow best practices so that anyone who later works with the program can easily understand the nature of the code. This still leaves room for personal style and expression. Returning to the API, the declaration is typically defined as a short command line call for each function. In practice there is limited room for personal expression. A function to return the larger of two integers would be expected to be written as “max (int a, int b)” or as “maximum (int a, int b).” Though the options are varied, using a declaration of add (int a, int b) for such a function would be highly unusual.

One allegation against Google is that the copying of the API is an attempt to gain the benefit of the existing Java environment in order to leech off of the work originally done to establish the Java platform. While this particular fact pattern has the potential to create problems for people hoping to maintain legacy software environments, there appears to be little risk to developers working with an existing platform. This case does not involve the use of the API in programs intended to operate with the Java platform but rather the attempt to create a replacement of the Java platform. Furthermore, the Federal Circuit emphasized the significance of the copying of the structure and organization of the API packages – not simply the use of the API.

Ultimately, this issue is now in the hands of the U.S. Supreme Court who have been asked to take up the case. Some are concerned that given the Supreme Court’s track record against software protection, the Supreme Court may make a ruling which proves problematic for software protection. It is still unlikely they will totally do away with the dual protections of copyright and patents for software, if they take up the case.