Google has long abused intellectual property protections and thus far managed to skirt any severe negative repercussions for it. But the tech giant may soon be held responsible for its borderline illegal behavior.
The Supreme Court will rule this year on Google v. Oracle, a case some say is the copyright case of the century. When it does, it will have the opportunity to rein in both Google and the legal doctrine of “transformative use,” an abuse of the “fair use” exceptions to copyright laws.
In this case, Oracle is suing Google for copyright infringement. Early in the 2000s, Google was negotiating with Oracle to purchase Java programming language for use in the smartphone Google was developing. When negotiations stalled in 2007, Google copied more than 11,000 lines of Java code and turned it into the Android operating system. Oracle filed suit in 2010, but only late last year did the Supreme Court decide to take up the case.
Copyright attorney Stephen Carlisle has dubbed this “one of Google’s most frequent tactics: take what you want without permission, and duke it out in court later.” Here is a partial list:
- Five members of the American Association of Publishers sued Google for copyright infringement over the Google Library Project. The publishers claimed Google was posting books online without their permission. They settled the suit in 2012.
- PayPal filed suit against Google in 2011, alleging Google executive Stephanie Tilenius, a former PayPal employee, violated her contract with PayPal by recruiting another PayPal employee, Osama Bedier. The suit also alleged Bedier stole PayPal’s trade secrets for the Google Wallet project.
- Google was selling keywords such as “Geico,” “American Airlines,” and “Rosetta Stone” for the advertisements in its search results. All three of those companies took Google to court for trademark infringement. The lawsuits were eventually settled.
- In 2014, Google settled a lawsuit with Viacom in which Viacom claimed Google was displaying Viacom videos on YouTube without permission.
Google often allegedly exploits the “fair use” exceptions to copyright protection. Under fair use, one can use copyrighted material for purposes of commentary, criticism, or parody. Since Google is a tech company not known for engaging in any of those activities, arguing fair use is absurd — if not for the doctrine of “transformative use.”
Transformative use was developed in 1990 by Judge Pierre Leval. In a Harvard Law Review article, Leval claimed the use of copyrighted material should fall under fair use if “the secondary use adds value to the original — if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings.” Leval claimed, “[T]his is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”
Transformative use became legal doctrine in the 1994 Supreme Court case Campbell v. Acuff-Rose Music. The case involved rappers 2 Live Crew’s appropriation of Roy Orbison’s song “Pretty Woman.” The rappers said their version of the song was a parody and thus not a copyright violation.
Justice David Souter, writing for the majority, said what was at issue with the rappers’ rendition was whether it added “something new, with a further purpose or different character, altering the [original song] with new expression, meaning, or message … in other words, whether and to what extent the new work is ‘transformative.’”
Google is trying to exploit transformative use in the Oracle case, claiming it transformed Java by using it in a smartphone. Again, that would be absurd, except Souter never defined the terms “expression,” “meaning,” or “message.” Transformative use has been a free-for-all for lower courts ever since.
A recent article in the Stanford Technology Law Review stated that since 1994, “courts have tended to treat transformative use as a shortcut to fair use.” It found that while transformative use decisions accounted for about 51 percent of cases involving fair use, that percentage rose over time until it plateaued at a whopping 90 percent in 2007.
The most egregious case is Righthaven, LLC v. Jama, in which the Center for Intercultural Organizing had posted verbatim on its website a Las Vegas Review-Journal article. In that case, the U.S. District Court for Nevada ruled that the article’s use was transformative because the Center for Intercultural Organizing’s purpose for posting it was “informational,” to educate the public, not to make money.
Following that logic, posting copyrighted work in full is legal as long as the purpose is to inform. More courts following Righthaven would go a long way toward gutting copyright protection.
The more courts expand transformative use, the more companies like Google will take advantage. Businesses entitled to copyright royalties will suffer, and smaller companies without the resources for drawn-out legal battles will suffer most. When the Supreme Court drafts its opinion on Google v. Oracle this year, it will do well to strictly limit transformative use.