The great beauty of fair use

Fair use is a beautiful principle, a progressive principle that drives innovation, penalizes dominant positions and democratizes knowledge.

Unfortunately, like many beautiful principles, such as the universal basic income, it has been ruined by reckless, opportunistic and irresponsible applications that have tarnished it, burying its ultima ratio under a large layer of earth. Difficult to dig it up now. Fair use is, in times of internet ebb, largely perceived as a form, albeit a light one, of piracy.

But it is anything but! It's the future. Therefore, its scope should be broadened. An impossible gesture today because it goes to disintegrate against the wall of a Manichaean and obsessive conception of the concept of intellectual property; a conception that would have made even John Rawls itch, who had nothing against property but had and has a lot to say about justice.

Something moves in the dark

However, something good is starting to show thanks to the sentence of the American Supreme Court, in the Google vs Oracle case, taken with a majority, these days, unusual: 7 to 2 for fair use. In Europe it would have been 9 to 0 against fair use. Unfortunately in Europe we no longer have a Voltaire lighting a lamp to show us the stupidity of the ancien régime in the darkness.

We really need "The American Letters"!

We do not even have the principle of fair use in European legislation, nor will we ever have it as proof of subjection to the status quo of the political and legal culture of the old continent.

And it happens that immense intellectual heritage, such as what Europe may have, lies in obscurity due to the carelessness or inaction of the owners (often publishers or producers who have disappeared) or of anyone who can remotely claim some improbable or even none right. The mere conjecture that there may be one freezes every initiative, even in areas where fair use is permitted.

Artists, writers, creatives, those who handle culture cannot build on what is built, cannot easily create the modern form of the mash-up without dealing with some very aggressive legal department that protects some vacillating right. I don't know if today one could put a mustache on the Mona Lisa without going into some judgment and being proved right.

Even in a more relaxed context than ours, like New York, a judge has recognized that Andy Warharol infringed copyright by using a photo for his acrylic of Prince. We will deal with the history of Warhol in a future post. With the spread of the culture of cancellation and with the capillary principle of the protection of intellectual property, our contemporary art museums will become simulacra of lime.

Beyond the public domain

It is true there is the public domain, but the time taken to subtract from the public domain is getting longer and longer and when it finally arrives (almost never for collective works) the historical memory of that conquest or intellectual legacy has often been almost completely lost .

Fair use is an antidote against decay, oblivion, homogenization, legal Cartesianism because it puts a creation of intelligence back into circulation, albeit partially, repackaging it in a modern and often progressive context, offering it to a potentially new public and enhances their possibilities of producing immaterial and material wealth.

If then this activation of the inert, the lying, the marginalized, the frozen, the super-guarded generates a business, the benefits will be distributed among all those who have something to do with it; they don't forgive us anything to tear off a pound of their flesh! In addition to them, it will be above all society that will benefit. There is absolutely nothing communal about fair use, but it carries within it an innovative potential that is essential to the development of our communities. Fair use is not a common good, it is something fundamental to the open society.

And then it takes a bit of vision and audacity. We know that spontaneity can generate abuses, but the action of fair use should be spontaneous otherwise we remain prisoners in the mesh of a stringent legal and psychological armor and of the ancien règime.

But let's go back to the ruling of the American Supreme Court in the Google vs Oracle case. A ruling that has an impact on one of the crucial sectors for our future, software development and more. It also impacts the whole cultural and entertainment industry.

Can Java interfaces be used?

The United States Supreme Court has ruled in favor of Google in a landmark case for the software industry, ruling that Google did not break the law when it used the code that generates some software interfaces written in the Java language (API), claimed ownership of Oracle, in the Android operating system.

The ruling ends a decades-long legal battle whose current stake was Oracle's $9 billion in damages from Google. The case has also raised fundamental questions concerning the power balance between the dominant platforms and newcomers to the tech industry.

The judges decided for Google with a majority of seven to two, with the opposition of two conservative judges Clarence Thomas and Samuel Alito. The Supreme Court recognized that Google's use of the Java API was inscribed under the protection of "fair use". At the dawn of the smartphone industry, Google employed more than 11.000 lines of existing Java code to make its Android operating system compatible with the Java language that was widely used at the time. Later Java had been acquired by Oracle.

The use of Java code pieces, known as Application Programming Interfaces (APIs), would make it easier for Java developers to adapt existing programs to the Android system.

opposing theses

Google, which champions fair use even though it has abused it abundantly, tried to side with emerging competitors in the technology industry, arguing that the freedom to use interfaces, which require massive development work, was important in the competition of start-ups with large established technology platforms.

For this reason APIs should not receive the legal protection that most computer code covers, as they are an "essential method of operation", like the accelerator pedal in a car. Bizarre comparison that, however, was fully accepted in the majority opinion of the Supreme Court written by Justice Stephen G. Breyer (appointed by Bill Clinton). Also, Google argues, fair use allows for limited use of copyrighted material.

Oracle and its supporters have seen in this case the clearest demonstration that large and powerful companies, such as Google, can appropriate the code of others because they are able to deploy the legal capacity necessary to crush the challengers. Most companies can't afford the cost and uncertainty of filing a lengthy lawsuit defending fair use.

The argument of the court

The court only ruled on the point of "fair use", leaving the question of the legal status of APIs unresolved. The judges ruled that Google used "only those lines of code that were necessary to allow their programmers to develop their collective talent to build a new and transformative system." The Supreme Court essentially upheld Google's taking APIs and integrating them into innovative software that everyone can benefit from.

Well that seems like a highly sensible reasoning that goes in the right direction.

In fact writes Shira Ovide on the “New York TimesThe decision brought major relief to the tech industry, even among those who aren't fans of Google. It also has a very relevant implication for artists, writers and cultural operators.

In fact, there was concern that established platforms could prevent rivals from using the APIs or charge exorbitant prices for using them, thus discouraging inventiveness and innovation.

The possible repercussions of the ruling

The judges therefore embraced a broad view of the legal right to fair use. They affirmed the concept that if you extract text or images belonging to others and add enough of your own creativity, you don't need to get their permission or pay a usage fee.

The fact remains that determining whether an extract falls under the fair use exception can be complicated and quite subjective. For example, recently, a courthouse in Manhattan has established that an image of Prince shot by Andy Warhol for his painting was not a “fair use” of Lynn Goldsmith's original photograph. Well, Warhol could even afford to acknowledge something to Goldsmith or give him a call. This is a somewhat particular case, even if it constitutes a very dangerous precedent for the cause of "fair use"

Chief Justice Breyer, in his majority opinion, wrote that when considering the applicability of fair use, courts should not only look at the technical issues of the two parties involved in the case, but think bigger, evaluate, i.e., whether the offending use brings some benefit to society.

The sentence, and above all its motivations, could provide greater legal protection for artists, creatives and developers.

In short, the future of the technology industry is more in the parliaments and courts than in the garages or open spaces of Palo Alto.

This revolutionary ruling by the American court is intended to definitively sanction this step.

And what are we doing in Europe? We are hibernating. Who knows when a Voltaire will arrive to light a bonfire with his "American Letters".

Sources:

Richard Water, US Supreme Court rules for Google in $9bn Oracle battle, The Financial Times, April 6, 2021

Shira Ovid, Google won. I know did tech, The New York Times, April 6, 2021