Guest Post: The Supreme Court Should See Through Google’s Industrial-Strength Fair Use Charade

[This post first appeared on Morning Consult. The US Supreme Court will hear oral argument in the Google v. Oracle case on October 7]

Google’s appeal to the U.S. Supreme Court of two Federal Circuit decisions in Oracle’s favor is turning into the most consequential copyright case of the court’s term — if not the decade. The appeal turns in part on whether the Supreme Court will uphold the Federal Circuit’s definition of fair use for creators and reject Google’s dubious assertion of “industrial strength” fair use.

I co-wrote an amicus brief on the fair use question on behalf of independent songwriters supporting Oracle in the appeal. Our conclusion was that the Supreme Court should affirm the Federal Circuit’s extensive analysis and hold for Oracle because Google masks its monopoly commercial interest in industrial-strength fair use that actually violates fair use principles.

The story begins 15 years ago. Google had a strategic problem. The company had focused on dominating the desktop search market. Google needed an industrial-strength booster for its business because smartphones, especially the iPhone, were relentlessly eating its corporate lunch. Google bought Android Inc. in 2005 to extend its dominance over search — some might say its monopoly — to these mobile platforms. It worked — Android’s market share has hovered around 85 percent for many years, with well over 2 billion Android devices.

But how Google acquired that industrial boost for Android is the core issue in the Oracle case. After acquiring Android, Google tried to make a license deal for Sun Microsystems’ Java operating system (later acquired by Oracle). Google didn’t like Sun’s deal. So Google simply took a verbatim chunk of the Java declaring code, and walled off Android from Java. That’s why Google got sued and that’s why the case is before the court. Google has been making excuses for that industrial-strength taking ever since.

Why would a public company engage in an overt taking of Oracle’s code? The same reason Willie Sutton robbed banks. Because that’s where the money is. There are untold riches in running the Internet of Other People’s Things.

Google chose to take rather than innovate. Google’s supporters released a study of the self-described “fair use industries” — an Orwellian oxymoron, but one that Google firmly embraces. Google’s taking is not transformative but it is industrial strength.

We have seen this movie before. It’s called the value gap. It’s called a YouTube class-action brought by an independent composer. It’s called Google Books. It’s called 4 billion takedown notices for copyright infringement. It’s called selling advertising on pirate sites like Megaupload (as alleged in the Megaupload indictment). It’s called business as usual for Google by distorting exceptions to the rights of authors for Google’s enormous commercial benefit. Google now positions itself to the Supreme Court as a champion of innovation, but creators standing with Oracle know that for Google, “innovation” has become an empty vessel that it fills with whatever shibboleth it can carelessly manipulate to excuse its latest outrage.

Let’s remember that the core public policy justification for the fair use defense is to advance the public interest. As the leading fair use commentator Judge Pierre Leval teaches, that’s why fair use analysis is devoted to determining “whether, and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright.” You can support robust fair use without supporting Google’s position.

Google would have the court believe that its fair use defense absolves it from liability for the industrial-strength taking of Oracle’s copyright — because somehow the public interest was furthered by “promoting software innovation,” often called “permissionless innovation” (a phrase straight out of Orwell’s Newspeak). Google would have the court conflate Google’s vast commercial private interest with the public objectives of copyright. Because the internet.

How the Supreme Court rules on Google’s fair use issue will have wide-ranging implications across all works of authorship if for no other reason than Google will dine out for years to come on a ruling in its favor. Photographers, authors, illustrators, documentarians — all will be on the menu.

Despite Google’s protestations that it is really just protecting innovation, what is good for Google is not synonymous with what is good for the public interest — any more than “what’s good for General Motors is good for America,” or more appropriately, “what’s good for General Bullmoose is good for the USA.”

What’s Good for Google is Not What’s Good for the USA: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle, Part 6

Google’s appeal of its major loss to Oracle on fair use is shaping up to be the most important copyright case of the year, if not the decade.  It could set fair use standards for years to come.  We’re going to be posting installments from the friend of the court brief that David, Helienne, Blake and The Songwriters Guild filed in the U.S. Supreme Court supporting Oracle in the Google v. Oracle fair use case.  This is the last installment.  We decided to omit the footnotes for this posting, but you can read the whole brief here.

Cover Page

Moreover, Amici believe that Google’s fair use expansion campaigns are designed to serve as a honeypot for Google’s data scraping business model that feeds its outsized profits from ads. Google likewise seems to promote expansion of the fair use doctrine as way to easily keep more videos on YouTube, while providing material support to its partners that allows them to outlast any songwriter or artist in the game of whack-a-mole under its copyright strike policies. No one is giving creators a shadowy milliondollar fund to defend against the misapplication of fair use.

Amicus Mr. Lowery summed it up in his 2014 testimony to the House Judiciary Committee:

I am not concerned with parody, commentary, criticism, documentary filmmakers, or research. These are legitimate fair use categories. I am concerned with the illegal copy that masquerades as fair use, but is really just a copy. This masquerade trivializes legitimate fair use categories and creates conflict where there need be none.

Scope of Fair Use at 22.

Unfortunately, Google manipulates fair use to extract value by monetizing verbatim  copies to the great disadvantage of creators who can little afford to fight back against the multi-national, trillion dollar corporation, and usually do not. Thus, independents
are caught without leverage in cases that rarely get to court.

The end result is that even where its use is “free,” Google’s interests are steadfastly commercial. Accordingly, the Federal Circuit was correct in finding that the nature and purpose of Google’s use was entirely commercial in nature.


The ultimate question in a fair use analysis is “whether, and how powerfully, a finding of fair use would serve or disserve the objectives of the copyright.” Leval at 1110–1111; see also Harper & Row, 471 U.S. at 546 (noting purpose of copyright is to give creators
“a fair return for their labors”).

Google’s only response to whether its use furthers the public interest—i.e., in promoting an effective system of copyright—is that allowing it to copy verbatim Oracle’s declaring code and structure would be “promoting software innovation.” Such verbatim copying is a “facile use of the scissors.” Folsom v. Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass 1841) (Story, J.).

Yet what is good for Google is not synonymous with what is good for the public—no more than “[w]hat’s good for General Bullmoose is good for the USA.” Johnny Mercer and Gene De Paul, Li’l Abner (1956).  In fact, a ruling for Google would be “promoting” software innovation only in that the purported “innovation” would be furthering Google’s private
interest—i.e., using works without permission or a license fee.

This case again appears to be the latest in Google’s long-term strategy to use its market dominance and overwhelming commercial power to continually distort copyright exceptions, thereby artificially depressing the market price of copyrighted works.  Google’s proposed outcome would be yet another distortion. Were Google to prevail here, Amici expect Google (and its proxies) to throw its full weight behind such a ruling, far beyond the confines of its text. This case would become another totemic faux license or safe harbor that Google could use as a cudgel against creators and copyright owners.

Left unchecked, eventually the copyright distortions they seek—including in the case at bar—could nullify copyright, particularly for those who cannot afford to fight back or fear retaliation for doing so. Under the Google anti-copyright regime, exceptions would devour the rules of protection in whole, digesting art and culture along with them.


Amici respectfully suggest that the Court should consider whether a decision in favor of Google would merely “unleash” yet another weapon for Google’s private benefit, and whether Google’s infringement of Oracle’s declaring code and structure constitutes
“simple piracy” for which the company should most certainly be held accountable.

This Court should affirm the decision of the Federal Circuit below.
Respectfully submitted,
Counsel of Record
(914) 366-6642

(512) 420-2200
Counsel for Amici Curiae


How Google Treats Copyright as an Inconvenience: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle, Part 5

Google’s appeal of its major loss to Oracle on fair use is shaping up to be the most important copyright case of the year, if not the decade.  It could set fair use standards for years to come.  We’re going to be posting installments from the friend of the court brief that David, Helienne, Blake and The Songwriters Guild filed in the U.S. Supreme Court supporting Oracle in the Google v. Oracle fair use case.  This is part 5.  We decided to omit the footnotes for this posting, but you can read the whole brief here.

Cover Page
Cover Page of Friend of the Court Brief


B. Google Benefits Commercially from Weaker Copyright Protection.

Amici, as creators in the digital age, are largely beholden to the whims of distributors. As romantic the notion is of solitary artists laboring over their works, the fact remains that they will ultimately need to distribute their creative expression. That means going
through Google far more often than not.

Artists like Amici have a tense relationship with Google and its subsidiaries. On the one hand, Google controls access to the market directly or indirectly. On the other hand, Google has consistently abused or outright ignored copyright when it comes to
interactions with creators and their intellectual property.

For example, when YouTube rolled out its subscription service, it reportedly warned independent artists and labels that if they refused YouTube’s licensing terms, their music would be blocked on YouTube’s free service, and YouTube would keep any advertising revenue. Ben Sisario, Independent Music Labels Are in a Battle with YouTube, N.Y. Times
(May 24, 2014)

In Amici’s experience, Google has a long history of leveraging copyright exceptions for its enormous profit at creators’ expense. Through YouTube, Google profits directly from verbatim copies of Amici’s own works. These copies are often unauthorized, unlicensed, and severely undermonetized. See Jonathan Taplin, Do You Love Music? Silicon Valley Doesn’t, L.A. Times (May 20, 2016).

Google is able to artificially lower the floor for the market for music and other copyrighted works by strategically leveraging a variety of copyright exceptions and loopholes across all of its platforms, particularly YouTube and search.

As discussed above, in order to maximize user engagement with its ads, Google needs a constant influx of creative content. Copyright is treated as an imposition, and Google avoids liability through an abuse of exceptions such as the safe harbor provisions
in the Digital Millennium Copyright Act. See 17 U.S.C. § 512(a)–(d). Google frequently argues that these provisions immunize Google from liability for infringing content, while also making it very easy for Google to restore content with the check of a box.

Google has cobbled together a system of copyright “strikes” based on DMCA notices received from copyright owners against infringing YouTube channels. With sufficient strikes, YouTube blocks public access to the channel. The channel operator, however, can easily restore content by filing a counternotification with YouTube often attesting without firm legal grounds to a good faith belief that their unauthorized use of the material is non-infringing.

Such an assertion frequently mimics Google’s general assertions that the fair use doctrine is malleable enough to accommodate any use no matter how damaging, non-transformative, commercially based or unnecessarily broad. See 17 U.S.C. § 512(g)(3)(C).
Assuming the copyright owner does not seek relief in court—and very few do because of the prohibitive costs and time required—then YouTube restores the content, and Google has another video to monetize.

Thus, assertions of fair use (real or imagined) play a critical role in this scheme, and therefore ultimately Google’s advertising inventory. YouTube’s counternotification
webform, in fact, arguably encourages a channel operator to claim a good-faith belief that its infringing video was fair use under the broadest of circumstances. See Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015).

These channel operators are rarely represented by counsel, meaning their claims of fair use are more folk wisdom and internet legend than law. Five-time Grammy Award winner and independent composer and band leader Maria Schneider gave an example of this culture in comments to the Copyright Office:

“As just one small example, just put in the YouTube “search” bar the phrases “fair use” and “full CD.” There are literally countless whole albums digitally uploaded by users who state that it is “fair use” (which it obviously isn’t).

YouTube knows there is infringement of epic proportions broadly across its platform, and . . .certainly makes it possible, and easier, for infringement to occur.”

Coupled with its porous repeat infringer policy, YouTube has leveraged counternotifications into a broad-based fair use business strategy—truly an attempt to fashion its non-existent “fair use industries” entirely out of whole cloth.

Google overamplifies fair use in other ways. For example, since 2015, YouTube has  sponsored an initiative to subsidize legal fees for certain fair use cases that it decides are “some of the best examples of fair use on YouTube by agreeing to defend them in
court if necessary.”34 YouTube announced that it intended to “indemnify creators whose fair use videos have been subject to takedown notices for up to $1 million of legal costs in the event the takedown results in a lawsuit for copyright infringement.”

Google tells us “[they] believe even the small number of videos [Google] are able to protect will make a positive impact on the entire YouTube ecosystem, ensuring
YouTube remains a place where creativity and expression can be rewarded.”

The promise of Google’s million-dollar fair use indemnity promotion effectively provides a faux license against copyright liability without the consent of the copyright owner, and purports to protect YouTube partners for fair use cases that Google judges worthy, i.e., cases that promote Google’s private interests in protecting and expanding YouTube’s advertising inventory. It is unclear which, if any, cases Google or YouTube have taken on under this indemnity or what the criteria would be because Google does not disclose
when or if they get involved. One can easily discern through market behavior, however, that the threat alone more than satisfies Google’s imputed aims to dissuade creators from even attempting to enforce their rights.

[To be continued…]

Google’s Fair Use Industries Part 2: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle

Google’s appeal of its major loss to Oracle on fair use is shaping up to be the most important copyright case of the year, if not the decade.  It could set fair use standards for years to come.  We’re going to be posting installments from the friend of the court brief that David, Helienne, Blake and The Songwriters Guild filed in the U.S. Supreme Court supporting Oracle in the Google v. Oracle fair use case.  This is part 2.  We decided to omit the footnotes for this posting, but you can read the whole brief here.

Cover Page
Cover Page of Friend of the Court Brief



Copyright is of critical importance to independent creators and artists. It is not empty rhetoric to say that without the statutory and constitutional protections of copyright, professional creators could not earn their livings and simply would not produce new works, and the world would be poorer for it.  The reason is simple but profound: copyright protection allows for a vibrant creative environment in which artists can predictably recover the gains of their creative labors. See U.S. Const. Art. I, § 8, cl. 8; see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (“By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”). Because Congress has codified this incentive structure through centuries of copyright legislation, independent artists
and songwriters regularly rely on the exercise of their exclusive rights by creating, reproducing, distributing and publicly performing their works.

Importantly, these rights are not just abstractions.  They tangibly alter the licensing negotiations vital to a modern creative ecosystem. An exclusive right to exploit a creative work (such as a musical composition or a sound recording) can be the only backstop against markets where the marginal cost to digitally create perfect copies of an original is nil. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005) (noting “digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original [and] copying is easy”). These burdens do not fall solely on creators of sound recordings or musical compositions, but extend across copyrightable subject matter, including visual arts, motion pictures, and literary works such as novels or software. See 17 U.S.C. §§ 101, 102(a).

To be sure, independent creators may also benefit from uses that fall under the category of fair use. Fair use helps disseminate the artist’s work to the larger culture, and increases the amplitude and quality of discourse within and surrounding the work—all without compromising the work’s value. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (noting fair use must be analyzed “in light of thepurposes of copyright”); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990). (“[f]air use should be perceived . . . as a rational, integral part of copyright, whose observance is
necessary to achieve the objectives of that law.”). It is therefore not surprising that a significant number of fair use cases arise in the music business. See, e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994); Estate of Smith v. Graham, No. 19-28 (2d Cir. Feb. 3,
2020); Capitol Records, LLC v. ReDigi Inc., No. 16-2321 (2d Cir. Dec. 12, 2018); Lennon v. Premise Media Corp., 556 F. Supp. 2d 310 (S.D.N.Y. 2008); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); Elsmere Music, Inc. v. Nat’l Broad. Co., 482 F. Supp. 741 (S.D.N.Y.), aff’d, 632
F.2d 252 (2d Cir. 1980).

Yet these fair use benefits only accrue when the analysis is predictable, consistent, and respectful of the underlying existing copyright incentives for original creation. Under such market conditions, independent creators nearly always stand ready to license their works at a fair market rate to those who respect their rights. This is how fair use works effectively within the creative industries. On the other hand, the more amorphous and unreasonably expansive the analysis and application of the fair use doctrine, the harder it becomes to establish the value of the copyrighted work during licensing negotiations that are the lifeblood of the creative ecosystem.

In the modern music business, such licensing negotiations are intricate and delicate. The exclusive rights guaranteed by the U.S. Copyright Act have allowed independent songwriters, recording artists and labels to contract with distributors such as Audiam, CD
Baby, INgrooves, Merlin Network, The Orchard and TuneCore. These aggregators in turn sublicense collectively to interactive, on-demand digital delivery services like Amazon Music, Apple Music, Deezer, iTunes, Google Play Music, Pandora, and Spotify in return for royalties that the aggregators pay to their songwriter or artist licensees.

SoundExchange, for example, administers the limited statutory performance license for
noninteractive exploitations of sound recordings. See 17 U.S.C. § 114. Through this statutory scheme, SoundExchange oversees the statutory license of sound recordings used by many noninteractive services such as Pandora, SiriusXM, iHeart Radio and other Internet radio services as well as business establishments. Meanwhile, performing rights organizations like ASCAP, BMI, Global Music Rights and SESAC collectively license the public performance of the corresponding compositions.

Artists and songwriters rely on this intricate market system of licensing that is entirely based on the exclusive rights of copyright owners and the traditionally reasonable application of the fair use doctrine. These market practices have, over the past two decades, undergone a metamorphosis, as new customs evolved in the digital age, emerging once again into a predictable licensing landscape. The exclusive rights that independents enjoy as copyright owners allow them to compete with the licensing, distribution and marketing operations of major labels and music publishers—when those rights are respected.

And that is where Google’s seemingly perpetual campaign for fair use expansion becomes a major hindrance in the equitable and efficient functioning of
the marketplace.

[To be continued]

The Fair Use Industries: Supreme Court Brief of @davidclowery, @helienne, @theblakemorgan and @sgawrites in Google v. Oracle

Google’s appeal of its major loss to Oracle on fair use is shaping up to be the most important copyright case of the year, if not the decade.  It could set fair use standards for years to come.  We’re going to be posting installments of the friend of the court brief that David, Helienne, Blake and The Songwriters Guild filed in the U.S. Supreme Court supporting Oracle in the Google v. Oracle fair use case.  You can read the whole brief here.

Cover Page
Cover Page of Friend of the Court Brief

Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is,
in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.

Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Amici have experienced, observed and believe that Google has used its unprecedented online footprint to dictate the terms of the market for creative works.  By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the
radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model: what its amicus brazenly refers to as the bedrock on which rests the fictitious “fair use industries.”

There is no shortage of amici exhorting this Court to weigh carefully the implications of this case’s fair use issues, and their resolutions. Amici today simply join the chorus of those seeking to illustrate Google’s longstanding pattern of integrating willful copyright
infringement into its business model. Google does so, as it did here, by advocating for fair use exceptions so broad as to include its wholesale, verbatim copying of Oracle’s declaring code and structure without a license.  Google’s flagrant disregard of original expression in order to make a larger profit—by taking without authority the works belonging to others—compromises any argument that its use is non-commercial,
transformative, or in any sense “fair.”

Accordingly, the Federal Circuit was correct in finding that the nature and purpose of Google’s unlicensed use of Oracle’s code and program organization was to create a commercial substitute in the form of Android. It is abundantly clear that this
unauthorized substitution is not in the public interest. Here, Google’s claim to be, “promoting software innovation” is just a code word for promoting Google’s
interest in extracting higher profit margins out of the pockets of creators. Given that its interest in doing so is antithetical to incentives to create original works, finding fair use would clearly not serve the constitutional and statutory purposes of copyright.

[Tomorrow: Independent Artists and Songwriters rely on copyright protection and clear fair use standards to defend themselves in the market.]

YouTube’s DMCA decision and the campaign to morph victims into villains | Vox Indie

YouTube will pay copyright court costs for a few users–not because it’s right–but to protect Google’s bottom line

According to a story in today’s NY Times, the folks at YouTube are ready to pony up cash to support some of its users “fair use” claims in court.

“YouTube said on Thursday that it would pick up the legal costs of a handful of video creators that the company thinks are the targets of unfair takedown demands. It said the creators it chose legally use third-party content under “fair use” provisions carved out for commentary, criticism, news and parody.”

You’ve probably read a lot about “fair use” lately.  It’s the Electronic Frontier Foundation’s mantra and if the folks there had their way, pretty much everything and anything would be considered “fair use.”  Fair use an important legal doctrine and when applied properly (criticism, comment, news reporting, teaching, scholarship, or research) is not an infringement of copyright.  However, these days, too often is used as a disingenuous defense for copyright theft.


Proposal for Compulsory Remix License Has Foes in Steven Tyler and Attorney Dina LaPolt | Billboard

Aerosmith lead singer Steven Tyler and music attorney Dina LaPolt have sent a letter to the U.S. Patent and Trademark office opposing the creation of a compulsory license that would allow anyone to legally create remixes and derivative works, without getting songwriter permission.

For example, in 1986 Run-D.M.C recorded a version of Aersmith’s “Walk This Way.” As a cover it could have requested a compulsory mechanical license to create their version. But instead Run DMC involved Tyler and Aerosmith guitarist Joe Perry, who authored the song, in the process to create “one of the most famous derivative works of our modern times.”

“A compulsory license for remixes, mash-ups and sampling is a step too far,” they argued in their letter, which was provided to Billboard. “Approval is the most important right that a recording artist or songwriter has and they need to retain the ability to approve how their works are used… The current system does not need reform.”


Beastie Boys Respond to GoldieBlox in Fight Over ‘Girls’ | The New York Times

Keep your eyes on this story kids. This is an all out assault on artist and creators rights from Silicon Valley interests.

The Beast Boys Respond:

Like many of the millions of people who have seen your toy commercial “GoldieBlox, Rube Goldberg & the Beastie Boys,” we were very impressed by the creativity and the message behind your ad.

We strongly support empowering young girls, breaking down gender stereotypes and igniting a passion for technology and engineering.

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads.

When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.


Why Copyright is a Right and Fair Use is a Privilege | Law Theories

In this post, I’ll explain why copyright opponents have it exactly backwards when they claim that copyright is a privilege and fair use is a right. At the outset, I note that these terms can have various, nontechnical meanings that possibly overlap. For example, Black’s Law Dictionary defines “right” to mean, inter alia, a “privilege,” and it defines “privilege” to mean, inter alia, a “right.”2 But copyright opponents are not using these terms interchangeably; they are using them in contradistinction to each other. In other words, they are saying that right and privilege are mutually exclusive terms. It’s this technical usage of these terms that I’ll address.

Why Copyright is a Right and Fair Use is a Privilege