gpolicinski@freedomforum.org and follow him on Twitter at @genefac.
In what we can quaintly sometimes call “normal times,” copyright disputes are not regularly considered pressing concerns for the First Amendment.
Freedom of expression — the freedoms of press and of speech, articulated in the First Amendment’s 45 words — protects our right to speak.
But the technology and mode of how we speak generally is the province of other areas of the law, from contract law to rules protecting our right to peace and quiet at our homes late at night to copyright, the rules and regulations that prevent someone else from putting their name or improperly profiting on something we created.
But a case to be argued March 24 in the U.S. Supreme Court dramatically engages both the “to” and “how,” by raising both tech and creative questions involving computer code.
Google has successfully gotten the Supreme Court to review a 2018 Federal Circuit Court of Appeals decision in favor of Oracle, the multinational computer technology company. The two companies have been in dispute for about a decade over Google’s use of 11,000 lines of computer code making up what is called an “application programming interface” (API), originally written by Oracle.
In simple terms, APIs are how our electronic devices share information across differing products. As one document in the case explains, it’s what allows millions to “take a photo on their Apple phone, save it onto Google’s cloud servers, and edit it on their (Microsoft) Surface tablets.”
Here’s how to break down the two company’s arguments to the justices in this long-standing legal battle:
- Google says the code is not a creative work (a requirement for copyright), but a utilitarian series of computer steps that traditionally are open for all to developers to use in their own work, and thus not falling under copyright protection. (Think “set of instructions”).
- Oracle argues that APIs are included under copyright laws and that a major factor for courts to consider in this case is that Google used Oracle’s creation to directly compete with Oracle, thus earning millions on its Android products.
So, what is the First Amendment’s direct concern in all of this? Follow me through this.
Google supporters argue that being unable to use such common instructions will dampen the creativity of web developers and cripple software development — which for us means fewer ways to communicate by phone, tablet and such. They also warn the prohibition could cause companies to develop products incompatible with anyone else’s products, resulting in chaos for consumers.
Oracle advocates — who, at least online, seem fewer in number than those supporting Google — counter that the remedy for such a looming disaster is simple: Google pays Oracle a fee to use its product.
For all of us, the Supreme Court ruling could well help further define for the computer age a legal concept called “fair use,” which permits us to develop our own creative works by building on the earlier works of others. Such new creative work is said to “transform” the original — with a plethora of legal caveats on how closely the new work can copy or resemble the original.
Nearly 20 years ago, a parody of “Gone with the Wind” was published as “The Wind Done Gone,” taking the plot and characters of the original and revisiting the story from the point of view of an African American — and making the point about racial stereotypes in the original.
The estate of “Gone with the Wind” author Margaret Mitchell sued for violation of its copyright on what is considered the second highest-selling book after the Bible. The case was eventually was settled out of court. The author and publisher of the parody argued that by telling the same story, but from a slave’s perspective — even if followed the plot, scenes, settings and characters — the new work was sufficiently different.
In the Oracle-Google battle, another kind of fair use is in play. In asking the Supreme Court to hear its appeal, Google said APIs should not be subject to copyright because their very purpose is to be used by others, to connect products owned by someone else.
First Amendment advocates should watch the court’s decision — as difficult and complicated as the tech issues certainly are to track — because the potential appears to exist for limiting our ability to communicate with each other simply because our devices cannot connect. And, more broadly, we need to keep an eye on any dampening of the web’s potential for increasing public engagement in debate and decision on matters that affect us all.
A bottom line to it all: The nine justices hearing the appeal may well decide if we will face a real-life example (or perhaps parody) of that phone commercial in which the character repeatedly shouts into a mobile device, “Can you hear me now?”