Tuesday, April 6, 2021

Sam's Weekly Quarantine Digest #48: April 5, 2021

 Hi all,

Last night, I was sad that I was sending out the Digest late this week, but this morning, I found out that it was fate.  Today, the Supreme Court finally ruled on Google v. Oracle, the landmark copyright case that I mentioned back in October, and now I get to talk about it.  This case and I started at Google around the same time back in 2010, right when I was starting my legal career.  It sparked a decade of learning and helped me discover my passion for copyright law.  And today, after 10+ years of waiting and uncertainty and multiple illogical rulings by the Federal Circuit, the Supreme Court finally got it right and probably saved the Internet as we know it!  (Ok, so I feel pretty strongly about this one!).  I'm going to try to provide a high-level (yet still unavoidably lengthy) explanation of the issues in this case.

First, a little background: Google v. Oracle is rooted in the creation of the Android operating system and Google's use of "declaring code" from Java.  Java was, at the time, the coding language for this type of software - it completely dominated the desktop coding market.  Declaring code is essentially just the names used to identify certain functions of a software program - for example, if you want to add two things together, you could call that function "addition," or you could call it "banana" or "gazebo" or anything else you'd like.  Coders everywhere had already learned the names that Java had assigned to the various functions of its software.  When Android's coders decided to create their mobile platform, they faced a quandary: use the same names that nearly every developer was already familiar with, given Java's market dominance, or hope that those same developers would decide to give some unknown new start-up (Android) a chance and willingly invest hours of their own time learning a new language in order to do so - in other words, hope that programmers would learn that "gazebo" in Android means the same function as "banana" in Java.  (This example is 100% made up; any resemblance to real names is unintentional).  Google (or rather, Android, which was at the time an independent start-up) chose the former; however, they only used the declaring code (the names of the functions), and they wrote the "implementing code" (the code that actually implements, or carries out, the function) from scratch.  During the oral arguments in October, Breyer was especially swayed by the notion that Java's declaring code was like the QWERTY layout of a keyboard - there were plenty of other ways to design a keyboard at the beginning, but once every computer user on the planet had learned to type, it would have been nearly impossible for a newcomer to try to enter the market with a different layout, because no one would ever bother to learn it and everyone would continue to buy the QWERTY ones.  It's a pretty good analogy...)

From a legal standpoint, this case was about two things: 1) whether APIs (or specifically, here, the bits of declaring code that were copied) are copyrightable, and 2) whether using declaring code in order to make other software programs interoperable is a sufficient basis for fair use.  In other words, IF Oracle (Java) should be granted a copyright monopoly over the declaring code (question #1), should Google (Android) have been obligated to pay Oracle for the convenience of using "banana" over "gazebo" and taking advantage of coders' familiarity with those names (question #2)?  SCOTUS declined to answer the first question (this is normal and expected, and likely because the justices in the majority didn't agree on that point), but they decided in Google's favor on the second.  And in the process, Justice Breyer, who wrote the majority opinion here, a) took a pretty novel approach to the fair use analysis and each of its four factors (intriguing); b) referred to a hypothetical software engineer as "she" (woo-hoo!); and c) directly contradicted one of the most famous and oft-cited lines in legal history (boo; see below for details).*

So what does this mean for us?  If you're a software engineer, or if you work at a tech company, or if you ever use the Internet, the answer is probably "not much."  However, this is a good thing - this is a little like me telling you that a meteor almost hit the Earth and destroyed it, but that the governments of the world secretly banded together and blew it up before the moment of impact (yes, I'm citing Armageddon).  You can just go on with your normal life, but you should probably take a second to thank your lucky stars that such a devastating crisis was averted.  And that's sorta what happened here, IMHO - the Internet and the entire software and start-up industries almost died this year, but the crisis was averted.  Yes, I'm being a bit dramatic, but trust me - this decision is a BFD.

If you're a fellow IP or tech lawyer, this means even more for us.  I think we'll spend years reading different interpretations of the reasoning used in this opinion, and of Breyer's approach to each of the four fair use factors (the fourth factor analysis was bonkers, but also kind of awesome, amirite?).  I think we'll see future opinions that apply fair use in new and novel ways, and I think we'll see an expansion of the doctrine.  In many ways, I'm in favor of that.  I also think we'll see more judges focusing on incentivist arguments (if you actually read my AI paper, you'll know that I'm a big fan of those) and deciding, first and foremost, if the decision being made in a case at bar aligns with the main purposes of copyright law - not only to incentivize the creation of a particular work by allowing the creator to profit from it and recoup the costs of creating it, but also to increase the overall number of works being created by allowing others to create new works.  We'll be forced to actually decide, little by little, how to thread the needle between the necessary act of granting monopoly rights over a work to its author and allowing other potential creators to continue to create.  And last but not least, I think we'll finally displace the infamous SCOTUS shovel with references to "el dinosaurio," and we'll hear more about QWERTY keyboards than we ever imagined possible.

Regardless, this is a tremendous, watershed moment for copyright law, for start-ups, and for the Internet (and, clearly, for me).  As someone who not only spent the formative years of my legal life at Google, but has also been steeped in copyright academia for several years and went on to work in the start-up world, this victory is unbelievably sweet for me.  I want to take a moment to congratulate the entire Google team (both those who are still there, and those of us who are part of the diaspora of alumni) - this has been a tremendous effort over a very long time, and the people who have been leading the charge are my heroes and mentors and have truly shaped copyright law forevermore.  I also want to thank my teammates at Google who first taught me what any of this meant, my professors and classmates who spent hours discussing (and arguing about) this case during law school, and everyone along the way who has let me prattle at them for hours at a time about fair use and declaring code and why the Federal Circuit is bonkers (Luke and Mom, I'm especially looking at you here).  I, for one, will sleep a little easier tonight knowing that justice was served!

As always, previous digests can be found on my blog at thatsthewaythecookiecrumbles.com.  If you have suggestions or would like to stop receiving these emails, just let me know.


*The quote referenced above is from Judge Learned Hand (an extremely well-respected judge from the Second Circuit Court of Appeals in the early 1900s): "[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate." Sheldon v. Metro-Goldwyn Pictures Corporation, 81 F.2d 49 (2d Cir. 1936).  Breyer at a few points said precisely the opposite, highlighting the many lines of implementing code that Google did not copy, as though that explained everything.  I respectfully disagree with him on that point, but he reached the right result nonetheless!

Fun & Games
  • A college friend of mine, Kyle Nasser, is a brilliant jazz musician, and he just shared a project that he's been working on during the quarantine, called Triple Blind.  Without live performances, jazz music, too, had to adapt to a virtual world, and this wonderful album is the result!  All sales go to Project Corazon, so you can listen to amazing music and help change the world all in one go.
  • I don't usually wade into the waters of TV recommendations, but I just binge-watched an entire season of Ginny & Georgia on Netflix today, and it was fantastic!  If you liked Little Fires Everywhere or Pretty Little Liars, this is your next favorite show.
  • Kyle Abraham, an unbelievable, up-and-coming choreographer (and dancer) for the NYCB, has a new piece premiering on April 8th.  His first piece for the NYCB, The Runaway, is one of my favorite pieces ever, featuring not only exciting choreography and inspired and unique costumes, but also music by James Blake, Jay-Z, and Kanye West.  This latest piece, When We Fell, is his third for NYCB and was created with 8 NYCB dancers during a 3-week Covid residency bubble that was subsequently filmed at Lincoln Center.
  • Have you ever considered training to become a ballet teacher?  The ABT offers teacher training, and their next round kicks off this summer (virtually).  Check out the details here.
  • Ok, I realize that the boat is no longer stuck.  But I forgot to include this link last week, and I'm not ashamed to admit that I like that the boat [was] stuck, and this article absolutely accurately summed up why.
  • Mind Body Social is offering a number of free streaming workouts and wellness videos in celebration of Miami Beach Pride, from yoga to a "firefighter workout."  Pick the one that fits your interests best, and get moving!
  • So this is weird (and spot-on).  Never thought that the biggest riddle of 2021 just might be figuring out how to dress myself again.
  • Need a new virtual escape?  How about taking a tour of the White House?
  • The 21st Annual Mercy College International Film Festival (virtual, of course) starts tomorrow and runs through Friday.  Tune in at 6:30pm each night on Filmocracy for speaker introductions and feature films from across the globe.
Cooking Classes and Other Yummy News
  • Jew-ish Cook-Along: This cook-along, hosted by Billy Harris, will take place on May 1.  I participated in a fried chicken cook-along with Tyler Florence last May that is still one of the highlights of the quarantine for me (and the impetus to create an Instagram account), so I'm excited for this one!
  • Vaccinated?  You're eligible for a free Krispy Kreme donut every single day this year!  Be sure to laminate your vaccination card, since you'll be wanting to flash it daily!
  • 92Y has an incredible slate of cooking classes coming up this spring, spanning many regions and cuisines, all with amazing instructors.

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