Mobile – LegalBytes

April 5, 2021

U.S. Supreme Court Decides Oracle’s Copyright Infringement Case in Favor of Google

Google’s Copying of Oracle’s JAVA Code is a Non-Infringing Fair Use
– Eric C. Cohen, Special Counsel, Rimon, P.C.

In a decision ending almost 10 years of litigation, the U.S. Supreme Court held today that the incorporation of about 11,500 lines of Oracle’s Java Application Programming Interface (“API”) code into Google’s Android operating system is a fair use, and thus does not infringe Oracle’s copyright in its Java operating system. It did not decide the issue of whether the API code is copyrightable.

The facts in the case are fairly straightforward. To create the Android platform, Google programmers wrote millions of lines of new code, but because Google wanted all other programmers, already familiar with Java, to be able to work with its new Android platform, it copied roughly 11,500 lines of code from the Java SE program.” (Slip opinion at 3) The Court noted “Google copied that portion of the Sun Java API that allowed programmers expert in the Java programing language to use the “task calling” system that they had already learned,” (Slip opinion at 8) including code that labels and organizes tasks within the program.

The Court considered the fair use provision of the Copyright Act (17 U.S.C. § 107), and although questions of fair use necessarily involves findings of fact—the province of a jury—the ultimate question of whether those facts constitute fair use is a legal question for judges to decide de novo.* Application of the fair use doctrine includes consideration of four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for and or value of the copyrighted work.

Considering the nature of the copyrighted work first, the Court held that the declaring code was “inextricably bound” with the idea of organizing tasks and with the use of specific commands that Oracle did not claim violated its copyright. The Court concluded this factor “points in the direction of fair use.” (Slip opinion at 24) Turning to the purpose and character of the use, the Court found Google’s use of the Java API sought to create new products – also favoring fair use. As to the amount and substantiality of the portion used, the Court noted that Google copied 11,500 lines of code out of about 2.86 million lines in the Sun Java API code, or about 0.4%. “The ‘substantiality’ factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.” (Slip opinion at 29)

With respect to the “market effects” of Google’s use of the Java API, the Court noted the market for Java was primarily laptops and desktops and previous efforts to adapt Java for use in mobile phones had largely been unsuccessful. Google’s economic expert testified that Android was not a market substitute for Java’s software because the products operate on very different devices – presumably because Android was developed in order to operate efficiently on mobile devices, with far less processing speed and memory than desktop and laptop computers on which Java was designed to function. Considering the effect of programmers widespread knowledge of Java, the Court concluded that if they allowed enforcement of Oracle’s copyright claim it would effectively limit future creativity of new programs, a principle inconsistent with the basic creativity objectives of the Copyright Act.
You can read and/or download the entire Supreme Court decision right here: 2021.04.05 Oracle v Google SCOTUS Opinion Decision No. 18-956.

Need to know more about this decision and its implication. Need help, feel free to contact Eric C. Cohen directly. As always you can contact me, Joe Rosenbaum or any of the lawyers at Rimon Law with whom your regularly work.

* The Court cited its own decision in Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996)—a patent case—for the proposition that the Seventh Amendment does not include the right to have a jury resolve a fair use defense. This holding may become fairly significant for its potential application to the issue of obviousness in patent cases.

December 13, 2017

What is an “Ad” These Days?

– Joseph I. Rosenbaum

On Friday, December 8, 2017, I had the privilege of presenting a seminar, hosted by Lawline, entitled “Augmented, Native and Interactive: The New World of Digital & Mobil Advertising.” This was broadcast live on the Web and recorded for subsequent on demand viewing and was my second presentation at Lawline. The first “Online & Mobile Digital Interactive Advertising: Video Games, Branded Entertainment, Native Advertising and Beyond” remains available as a web-based, on demand offering at Lawline.

This seminar provided an update on many of the concepts and principles discussed in the first program, including some basic principles of advertising law that applies in both the traditional and digital/mobile environment and provided updated information on game advertising – both advertising the game and in-game advertising – as well native advertising and guidance from the Federal Trade Commission. This recent session also delved into a number of digital and mobile advertising issues that were not part of the first presentation, such as celebrity endorsements, bloggers, experts & consumer testimonials in social media, augmented reality and advertising in virtual worlds, programmatic buying and the current tensions in the industry concerning transparency and relationships between advertisers and integrated agencies. You can view the slide images of my presentation “The New World of Digital & Mobil Advertising” and, of course, you can view the recorded session which is available exclusively through Lawline.

As always, if you need assistance or require any additional information, feel free to contact me, Joe Rosenbaum, at Rimon, P.C.

November 22, 2017

Inter Net Neutrality

What an interesting play on words. According to the Merriam-Webster dictionary, “inter” is a verb that means “to deposit (a dead body) in the earth or in a tomb.”

Earlier this week, the Chairman of the U.S. Federal Communications Commission (FCC) outlined plans to bury the Internet rules promulgated under the Obama administration that required providers of Internet services to treat all web traffic equally. Those rules, among other things, limit the ability of ISPs to favor content or customers, to block or slow down the online services they provide. Under the proposed changes, ISPs (wired and wireless) would be allowed to offer web-based services at different speeds and differing quality of service. In addition, they could enable more favorable speed or quality, or both, for websites that paid a fee – as long as that relationship was disclosed.

Over the years, a lively and heated debate over the nature and extent of regulation needed to protect consumers without stifling innovation has continued. Proponents of eliminating the rules claim that allowing the market to create different financial and performance models will spur investment and the development of technology, while critics argue that consumer prices would increase and so would barriers to entry and start-up costs for new companies. Critics point to the airline industry (where the FCC net neutrality rules have never been applicable) as an example of the potential for harm – one U.S. air carrier provides easy access to one online video service which has paid the airline for such priority status, while others are not enabled with the same speed or quality.

Under the previous administration, the Internet and ISPs (both wired and wireless) were treated as utilities, virtually excluding them from regulatory oversight by the Federal Trade Commission (FTC), whose fact-based, case-by-case, analytical approach to regulation is generally perceived as more suitable (and friendly) for emerging technology and evolving markets. Based on Chairman Ajit Pai’s remarks, in another reversal of the prior administration’s approach, it appears the FCC is now willing to share oversight with the FTC and have the FTC be responsible for monitoring ISP disclosures, determining if consumers are being harmed and determining whether these firms are engaging in anti-competitive or unfair trade practices. The FCC indicated it plans to enact the new rules early in the new year. Stay tuned.

If you have any questions or want more information about this or any Legal Bytes’ post, don’t hesitate to contact me, Joe Rosenbaum, a New York based partner at Rimon, P.C., or any of the other lawyers at Rimon with whom you regularly work.

January 12, 2016

Thought Leadership

Thought leadership is a state of being in which one or more individuals articulate innovative ideas – ideas that stimulate thought and are futuristic or leading-edge.

Thought leadership requires confidence and a willingness to share ideas in the form of insights and principles that inform and guide future considerations.

Thought leadership is often controversial. New or different ideas, like innovative technology, can cause evolutionary change, but can also create disruptive or revolutionary change.

Although not all thought leadership must be actionable, it is often the basis for a re-evaluation of existing pathways, and a guidepost for new roads ahead.

January 8, 2016

2016 Metamorphosis *

Legal Bytes will soon morph** and undergo a transformation***

Watch For It

* Metamorphosis: A noticeable change in character, appearance, function or condition.

** Morph: To undergo dramatic change in a seamless and barely noticeable fashion.

*** Transformation: A marked change in appearance or character, especially for the better.

December 22, 2015

Thank You for 2015 – Best Wishes for 2016

This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2015; and looking forward to the New Year – 2016. A time when many of us pause to reflect on what has happened in the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We pause to remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2015 comes to an end, we reflect on friendships and relationships, events and experiences. Many will use the opportunity to thank those who have helped us in tough times and those with whom we cherish sharing the good times.

For me it has always been a time to resolve to keep doing the good things I’ve done and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to everyone who has enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages and the thoughts and sensitivities that become imprinted in my mind. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and perhaps gain some insight, while also being a little entertained.

So let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. I especially want to thank a few people at Rimon like Kaitlin Southron, Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do! They make Legal Bytes come alive. They are always amazing, consistently awesome and unbelievable under pressure. There are insufficient words to express my gratitude and appreciation – especially when they get my email that says “can we please post this ASAP.” Thank you. You make it look easy, you make me look good. I could not do this without you!

Continue reading “Thank You for 2015 – Best Wishes for 2016”

July 7, 2015

Beyond Legal: Social Media Promotions

Yesterday (July 6, 2015), the Social Media Law & Policy Report™ published by Bloomberg BNA posted my article entitled: “Beyond Legal: What You Should Know About Social Media Promotions.”

The article highlights some of the additional considerations advertising and marketing professionals (and their lawyers) need to take into account when conducting sweepstakes, contests and promotional activities on social media platforms.

You can read the article directly at “Beyond Legal: What You Should Know About Social Media Promotions.” , or download a copy for your personal use here: Rosenbaum – Beyond Legal (BNA Reprint).

Do you need to know more about advertising, marketing or promotions operating in the world of social media or on mobile platforms? Our legal team has broad and deep experience in virtually every aspect of advertising and marketing, traditional, digital, virtual on this world or in others, or any of the lawyers with whom you regularly work, at Rimon.

June 5, 2015

FTC Updates Its FAQs for Endorsement Guides

The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”

If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.

So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.

November 3, 2014

mHealth – The Future of Mobile Health Care

Last month, I had the privilege of being invited to attend and make a presentation at an mHealth and the Law Workshop in Washington, D.C., convened by the American Association for the Advancement of Science, and supported by a grant from the Robert Wood Johnson Foundation. As part my presentation (October 7), I was asked to prepare a brief corresponding paper prognosticating the future of mobile medicine and health care. With permission of the AAAS, I am happy to share that paper with readers of Legal Bytes, and you can read the paper or download a copy for your personal use, right here: mHealth: Looking Forward [PDF].

As always, if you have questions, or need advice or guidance, just contact me, Joe Rosenbaum, or the lawyer with whom you regularly work at Rimon.