In a high-profile case, a jury recently found that Google’s use of portions of Oracle’s Java software code was allowable under the fair use doctrine and thus did not constitute copyright infringement. Oracle sought as much as $9 billion in damages from Google for incorporating approximately 11,000 lines of Oracle’s Java software code into Google’s
When Copying is Not Copyright Infringement
A longstanding battle between Google and
the authors of published books has been resolved (at least for now) in favor of Google. The Second Circuit Court of Appeals has held that Google’s use of copyrighted books in its Library Project and Google Books website, without the permission of the authors, is fair use and therefore not copyright infringement. The Authors Guild v. Google, Inc. (2nd Cir. 2015) 804 F.3d 202.
In 2004, Google began its Library Project. Google entered into agreements with some of the world’s leading research libraries, including the University of California, the University of Michigan, Harvard, Stanford, Columbia, Princeton, the New York Public Library, and Oxford. Under the agreements, the libraries submitted certain books to Google which Google digitally scanned, made machine-readable texts, and indexed the texts. Google has now scanned and indexed over 20 million books. Some of the books were copyrighted, while others were in the public domain. Most of the books were out of print, non-fiction books. The digital copies are stored on Google’s servers.
The public can access Google’s database of machine-readable texts through the Google Books website. On the website, the user can search for key words and find all books that include the key words and the number of times the search terms appear in each book. The search results also include a short summary description of each book and may include a link to purchase the book or the names of the libraries where the book is located. The website also offers the user the ability to see up to three snippets (segments of about an eighth of a page) of the text of the book. Searches for different words will turn up different snippets, but one snippet out of every page and one page out of every ten pages of each book are permanently inaccessible to the user (referred to by Google as “blacklisted”). In 2005, Google agreed to remove the snippet feature for any book at the copyright owner’s request. Google does not permit advertising in the Google Books searches and does not get paid for any sales of books.Continue Reading When Copying is Not Copyright Infringement
“Desert Warrior” Vanquished: Google Defeats Cindy Lee Garcia’s Copyright Claims
Cindy Lee Garcia thought she was playing a bit part in “Desert Warrior,” an adventure film being made by an amateur film maker. The film was never completed. Instead, Ms. Garcia’s performance was re-purposed, and her physical on screen appearance was used in a film titled “Innocence of Muslims,” with her voice redubbed, changing her speaking part so that she appeared to being asking, “Is your Mohammed a child molester?” The film was uploaded to YouTube. An outraged Muslim cleric saw the video and thereafter issued a fatwa directing his followers to kill everyone involved with the film. Ms. Garcia was nonplussed.
Garcia filed suit seeking, among other things, a restraining order directing Google to remove the film from YouTube. Primarily, Garcia claimed that the video infringed a copyright which gave her the exclusive right to control the use of her performance. Granting the injunction, the district court ruled that Garcia was likely to succeed on her copyright claim because it believed she held a valid copyright interest in her performance, and that the film maker had exceeded the terms of a license granted by plaintiff when she was misled into acting in “Innocent Muslim,” under the false pretense that she was playing in “Desert Warrior.” The court also determined that Garcia faced irreparable harm because Garcia had been receiving death threats. Google appealed to the Ninth Circuit. Initially the Ninth Circuit agreed with Garcia, however on May 18th, sitting en banc, the Ninth Circuit reversed.Continue Reading “Desert Warrior” Vanquished: Google Defeats Cindy Lee Garcia’s Copyright Claims
9th Circuit Agrees to En Banc Rehearing of Garcia v. Google, Inc.
In March 2014, this column analyzed a decision by a Ninth Circuit panel in Garcia v. Google, Inc., in which the Court held that an actress, who believed she was appearing in a minor role in an Arabian adventure movie, could maintain a copyright infringement claim against the producers when they used the footage instead in an anti-Islamic film that resulted in her receiving death threats. As the prior column surmised, it appeared that “bad” (although entirely sympathetic) facts were making “bad” law.
This week, the Ninth Circuit ruled that it would rehear the matter en banc and ordered that its previous decision “not be cited as precedent by or to any court of the Ninth Circuit.” It remains to be seen whether the entire Ninth Circuit will take a different position this time (and hold that the lower court properly denied the injunctive relief) or take the opportunity to emphasize just how limited the scope of its prior ruling was intended to reach.
Below is the original column analyzing the Ninth Ciruit’s original ruling in this case.
A Bit Part, A Fatwa and Copyright Infringement
Most law students learn early in law school the old maxim: “Bad facts make bad law.” A recent Ninth Circuit case, Garcia v. Google, Inc., seems certain to test this proposition with its incredibly sympathetic facts.
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Google’s Android: Was It Truly The First Generation?
With the prevalence of smartphones in today’s society, one cannot help but to have at least heard of Google’s Android operating system. This operating system came about with the intent of competing with the superpower known as Apple’s iPhone. Of course, when Google released this platform for the first time in 2007, the Android operating system was perceived to be the first generation. Recently, however, an Illinois man asserted that perhaps Google’s Android was not the first generation. Well, not quite, but he did assert that Google infringed his federally registered trademark, “Android Data.”
During the Dot.com Boom of the late 1990s Erich Specht decided he wanted to get into the lucrative software business. As such, in 1998, he founded a suite of e-commerce software that became known as Android Data Corporation (“ADC”). Through his entity, he intended to license software to his would-be clients, and provided website hosting and computer consulting services. Two years after the company’s inception, Mr. Specht applied to the United States Patent and Trademark Office for federal registration of the “Android Data” mark. The mark was registered in 2002.
Unfortunately for Mr. Specht, by the end of 2002, his company had hit the end of the road. It ceased all major operations, lost the bulk of its clients, and moved its headquarters into Mr. Specht’s home. Mr. Specht then caused ADC to transfer the Android Data mark to his wholly-owned company, The Android’s Dungeon Incorporated (“ADI”). For the remainder of the year, Mr. Specht attempted to sell ADC’s assets, including the mark, but was unable to find a willing buyer. He kept the ADC website running for a short period thereafter, but eventually allowed the registration for the company URL to lapse.
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