Hollywood would not exist without copyright law. So when the Supreme Court took up what was billed as the “copyright case of the century” — the multibillion-dollar fight between Google and Oracle — the Hollywood trade groups rushed to the barricades.
The Motion Picture Association joined with other pro-copyright organizations in support of Oracle, which accused Google of ripping off thousands of lines of Java code for its Android operating system. In an amicus brief, the MPA warned that if the court accepted Google’s “fair use” defense, and applied it to Hollywood, it could “potentially eviscerate” the ability of studios to make spinoffs and sequels of their films.
In other words, if Google could steal Java code, then perhaps anyone could make an “Avengers” movie. Disney would then have no reason to invest billions developing the franchise.
Others also warned of dire consequences. The Copyright Alliance — which represents studios, music labels, and publishers — warned that a win for Google could hamper copyright owners’ ability to profit from their work, and even give a green light to music piracy.
Google did win. In a 6-2 ruling issued on Monday, the Supreme Court held that Google did not infringe on Oracle’s copyright in the Java platform.
But the entertainment industry, far from decrying the ruling, has been almost silent in response.
The MPA issued a mere one-line statement: “The Supreme Court made clear that it didn’t intend for today’s ruling to affect existing law as applied outside the context of computer software.”
The Copyright Alliance also noted that the ruling was limited to software — and to a particular type of software — and said the ruling will have little impact on media.
“While we believe that the Supreme Court decision was wrongly decided, we are heartened that the Court made very clear that its decision is not only limited to software — and thus, should not be applicable to other types of copyrighted works,” CEO Keith Kupferschmid said in a statement. “As such, the decision here should have very limited applicability to other fair use cases that may arise in the future.”
CreativeFuture — another organization that represents entertainment companies, and which had earlier decried Google’s “blatant copying” of Oracle’s code — did not issue a statement at all. Neither did the Recording Industry Association of America, which had submitted an amicus brief supporting Oracle.
Some of this can be chalked up to spin — either playing up the harms before the ruling, or playing them down after, or both. But it is also true that Justice Stephen Breyer went out of his way to say that he was only concerned with computer code, and that he was not trying to expand the general definition of “fair use” in copyright law.
“We do not overturn or modify our earlier cases involving fair use — cases, for example, that involve ‘knockoff’ products, journalistic writings, and parodies,” Breyer wrote.
Some of the entertainment groups were clearly hoping that the court would address fair use in a more general way, and would take the opportunity to limit it. The court’s last major decision on the subject came in 1994, in Campbell v. Acuff-Rose Music, Inc., in which it found that a song parody was fair use. The RIAA and the Copyright Alliance each argued that the decision has led lower courts to conclude that a wide array of infringing uses are allowed because they are “transformative.”
“The time for clarity is now,” the Copyright Alliance wrote in its brief. “This Court should make clear that the defense of fair use should be applied judiciously.”
The court did not do not that, so in that sense it was a missed opportunity for Hollywood. But no one appears to expect that the ruling will lead to a frenzy of copyright infringement under the guise of fair use.
“I don’t think everybody should be running around freaking out that the sky is falling, because I don’t think it is,” said J. Michael Keyes, an intellectual property attorney at Dorsey & Whitney LLP. “It was pretty circumspect and pretty narrowly drawn.”
Still, he noted that the opinion does have passages that could cause some concern for copyright holders. In particular, he noted that the court gave little weight to Oracle’s claim that it lost out on billions in licensing revenue due to Google’s use of the Java code. The court held that potential harm was outweighed by the benefit to society from the Android system.
“I could see that striking fear in the heart of some content owners,” Keyes said. “It does raise the question, in my mind at least, of at what point does the societal benefit outweigh the copyright holder’s interest in protecting that market. That’s where I think the battle lines are going to be drawn in future cases.”
James Sammataro, co-chair of the media and entertainment practice at Pryor Cashman, also noted the court’s discussion of market effects as an area of concern.
“In particular, the Court’s discussion of the plaintiff’s economic harm versus the public benefits of the copying has a life beyond software coding and can be used in support of a pro-documentarian, pro-parody fair use defense,” Sammataro said via email.
In his statement, Kupferschmid argued that the ruling has the “the potential to unduly broaden the fair use doctrine.” But he also suggested that would happen only if the ruling is “misinterpreted by lower courts.”
“We are hopeful and optimistic that district courts and courts of appeals will heed the Supreme Court’s words that this case does ‘not overturn or modify its earlier cases involving fair use’ and therefore interpret the Supreme Court’s decision narrowly in keeping with well-established precedent,” he said.
All of which is to say, the Avengers are safe — for now.
