In today’s highly digitized world, copyright infringement actions, among others, are often brought against alleged infringers using information culled from Internet service provider addresses. While fair use defenses may exist against such suits, particularly when one is doing a music mash up, a preliminary question is whether the initial source evidence is accurate.
There exist technologies wherein users can mask themselves behind other users’ Internet service provider addresses. In this way, one can be located in Timbuktu, for example, and use an Internet service provider address of a user in the North Pole. By doing such masking, some users seek to avoid infringement lawsuits by using the address of another user, in essence leaving them with the hot infringement potato.
In prosecuting civil actions for unlawful downloads of Microsoft software, for example, it becomes imperative to understand such masking methods, and their limits. Prima facie evidence of the source of the infringement, while good for the initial stages of litigation, will evaporate upon further investigation. In some cases, a case brought without sufficient evidence of the source can, upon written documentary notice that the user wasn’t responsible for the download, such as via browser history evidence, lead to a motion for sanctions against plaintiff’s counsel for bringing a frivolous case.
Even with such evidence as to source, due attention needs to be paid to the transformative nature of the use. In digital music mash ups, for example, a sample from Mr. Bob Dylan recording can be modified, and blended into a new piece, so that the old version becomes impossible to recognize. In this case, the defendant likely has a bona fide fair use defense even when the attribution of the source is correct. Thus, in prosecuting a copyright infringement action, proper steps need to be made at the outset so that a sustainable case can be made.
If you work in technology, the big bad fair use wolf can be your best friend. Read below to find out why.
A few days ago, the U.S. Supreme court denied Google’s appeal from a decision by the United States Court of Appeals for the Federal Circuit which found that source code — written instructions that run computer software — can be protected by copyright law. In so doing, the nation’s highest court left in tact a ruling by the Federal Circuit which found Google could have infringed the copyright to Oracle’s software programming platform.
To the extent Oracle’s code is original and non-functional, then it should find protection against wolves inside a nice cozy copyright house during the cold winter. That’s because this type of source code is akin to the original combinations of words that authors use as inputs into their own hardware — books, screenplays, or plays. Because these words are original expressions of perhaps unoriginal ideas, they are copyrightable subject matter. No less should be true about original non-functional source code.
Nonetheless, the copyright house isn’t impervious to the elements outside. If you copy the idea behind a copyrighted work, then you have no liability because ideas aren’t protected by copyright law — but functional ideas can be potentially patented. That’s why, when copyrighted expression is so inextricably linked with a functional idea, many federal courts will deny copyright protection to the expression, especially in the case of functional source code. Small tweaks in code inspired by not all that original — but original enough for copyright protection — source code can keep you away from the infringement line. In such a crowded market, there are only so many ways to express a functional idea, which is why courts are remiss about extending the scope of copyright protection for any one particular expression. To do otherwise would hurt innovation. No less is true in other expressive endeavors. The scope of copyright protecting less original works — such as a “me too” drip style painting inspired by the works of Jackson Pollock — is smaller than that for pioneering ones — such as an architectural design that blends, for the first time, Frank Lloyd Wright with Frank Gehry.
Even if Oracle’s source code can jump the foregoing copyright hurdles, the story doesn’t end there.The lower court has yet to decide whether Google has a fair use defense. In the end, if Oracle’s source code is original enough for copyright but not so original so as to read that protection broadly, then Google’s fair use big bad wolf will likely huff, puff, and blow over Oracle’s copyright lawsuit to the ground.