Continuing in our copyright roundup series, we will review some of the most recent legal cases and developments in copyright law and policy.
More Fair Use Victories:
Cambridge University Press v. Becker
Fair use has once again prevailed in the most recent decision of the Georgia State e-reserves case. The case, originally filed in 2008, involves Georgia State University’s electronic reserve system, a system through which professors made small excerpts of copyrighted books available to their students for free. Shortly after the lawsuit was filed, GSU modified their policy to provide professors with a fair use checklist to assist in selecting excerpts. In 2012, the district court found most of the uses in question to be fair uses. On appeal, the Eleventh Circuit held the district court erred by adopting an arithmetic approach to their fair use analysis. The 2012 trial court ruling was vacated and sent back to the district court with instructions for a more holistic approach to fair use.
On March 31, 2016, the most recent decision from the district court was published, again finding the majority of claims (44 out of the 48) to be fair uses. The court’s analysis was specific to instances of nontransformative and nonprofit educational purposes of teaching. For an analysis of the decision and what it may mean for libraries going forward, see Krista Cox’s post “A Deeper Dive Into the New Georgia State Decision.”
Oracle v. Google
Oracle, owners of the Java programming language, sought $9.3 billion in damages for Google’s reproduction of the structure, sequence, and organization of 37 packages in the Java application programming interface (API) within Google’s Android operating system. After three days of deliberation, a jury found Google’s use of Java APIs to be a fair use, notwithstanding Google’s commercial nature and evidence of internal emails questioning the need to obtain a license.
But what exactly is an API? Defining “API” has been a challenge for both sides throughout the litigation. Google received attention for wheeling in a physical file cabinet labelled “java.lang” in their opening arguments during May’s jury trial, while Oracle previously took the approach of constructing a hypothetical situation referencing Harry Potter. Earlier in its 2012 opinion, the district court outlined the package-class-method hierarchy of the Java programming language, analogizing APIs to a library. In this analogy, Google replicated the names and functions of the API packages (bookshelves in the library) but wrote their own code to replicate the classes (books on the bookshelves) and methods (how-to chapters of the books).
Terry Reese, Head of Digital Initiatives at University Libraries provides clarification on what exactly an API is and how the restrictions on the use and reproduction of APIs may impact the Libraries. Terry shares, “APIs act as a common language between developers enabling faster and more efficient development. In essence, they are the bridges between systems and services that allow the tools and technology that we use to simply work. Take for example, the simple task of printing this blog post. Think about what’s really happening. The application (your browser) is communicating with the operating system, which in turn, communicates with a printer device driver to pass the data to the printer. Very likely, the browser, the operating system, the printer — these are all created by different developers and different companies. However, the applications and services can communicate together due to the utilization of a common set of APIs.”
The use and reproducibility of APIs supports interoperability between programs and services, and as Terry notes, the fair use of APIs is “hugely important for the long-term health of IT and open development. Within today’s technology environment, integration between services, applications, standards, etc. drive innovation and integration. This integration is possible due to the availability of common APIs.”
Oracle has stated their intention to appeal the decision.
Ninth Circuit Says De Minimis Exception Applies to Sound Recordings:
VMG Salsoul, LLC. v. Madonna et al., involved a claim of copyright infringement for the use of a 0.23 second sample of a modified horn sample from plaintiff’s song Love Break in Madonna’s popular song Vogue. The Ninth Circuit held the use of the sample to be de minimis—the use was so trivial that an average audience would not recognize the brief horn sample as originating from Love Break.
De minimis non curat lex (commonly translated as “the law does not concern itself with trifles”) is a legal maxim used in copyright cases when the violation of copyright law is so trivial that no actionable infringement exists. In contrast to the Ninth Circuit’s recent holding, a de minimis exception to claims of infringement of sound recordings is not recognized by Ohio courts of the Sixth Circuit. In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that sampling a sound recording, no matter how small the sample, constitutes copyright infringement, in accordance with the language of § 114(b).  The Ninth Circuit joins other district courts that have found the bright-line approach used by the Sixth Circuit to be unpersuasive.
U.S. Supreme Court Considers Copyright Cases:
Kirtsaeng v. John Wiley & Sons, Inc. In 2013, the U.S. Supreme Court heard a case involving a graduate student who purchased textbooks outside of the U.S. and sold them within the U.S. The Court held this activity was protected by the first sale doctrine; the requirement that the works be “lawfully made under this title” extended to copyrighted works lawfully made abroad. Following the 2013 decision, the student, Supap Kirtsaeng, sought $2 million in attorney’s fees under the fee-shifting provision of § 505.
Having granted certiorari,  the U.S. Supreme Court held that when determining whether to award attorney’s fees, a court should give substantial weight to the objective reasonableness of a losing party’s position. The Court clarifies, however, that objective reasonableness is not dispositive and “courts must view all circumstances of a case on their own terms, in light of the Copyright Act’s essential goals.”
Star Athletica v. Varsity Brands. Inc. In our first Copyright Roundup we summarized a 2015 case involving copyright protection for graphic designs appearing on cheerleading uniforms. In the case, the Sixth Circuit developed a test to determine if the graphic elements were separable from the utilitarian function of the cheerleading uniform and therefore protectable under U.S. copyright law. This new test added to the already long list of different approaches taken by circuit courts. The U.S. Supreme Court has granted certiorari to resolve this circuit split by deciding the appropriate test for determining when a feature of a useful article is protectable under U.S. copyright law.
Updates from the U.S. Copyright Office:
Section 512 Study. The U.S. Copyright Office is currently engaged in an active policy study to determine the effectiveness of the § 512 safe harbors in addressing online copyright infringement. As operators of websites that host user-generated content, creators of online information location tools, and sources of Internet access connections, libraries and universities fall within the definition of “service provider” under the law and often rely on these safe harbor provisions.
With over 92,000 submissions received for the first round of public comments, one topic of recent attention has been the efficacy of the notice-and-takedown process of § 512(c), a process by which a copyright owner may alert and request the removal of infringing content from a service provider’s server or network through the submission of a takedown notice. In certain circumstances, removed content may be restored through submission of a counter-notification.
Revising Section 108: Copyright Exceptions for Libraries and Archives. The U.S. Copyright Office is seeking feedback from interested parties on potential revisions to Section 108, the section of the law relied on by libraries and archives to reproduce and distribute copyrighted works for the purposes of preservation and replacement, private study, and interlibrary loan requests. The Copyright Office has led discussions around the potential revision of § 108 for the past decade, “with the goal of updating the provisions to better reflect the facts, practices, and principles of the digital age and to provide greater clarity for libraries, archives, and museums.” Efforts to revise § 108 have been opposed by some organizations, including the Library Copyright Alliance.
Before finalizing their legislative recommendations, the Copyright Office is seeking in-person input on a number of topics, including eligibility, outsourcing activities to third parties, and changing restrictions on the number of copies and level of public access an institution may provide to a copy. The deadline for written requests for in-person meetings was July 7, 2016.
Marrakesh Treaty to Enter Into Force:
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled requires contracting parties to create mandatory limitations and exceptions for reproducing, distributing, and making available copies of works in accessible formats for the benefit of people with print disabilities, including the exchange across borders of accessible copies of works. The United States has signed but not yet ratified the Marrakesh Treaty. A signature signifies agreement to the treaty but approval by two-thirds of the U.S. Senate and ratification by the President is required before the treaty becomes legally binding in the United States.
On June 30, 2016, Canada became the twentieth member state to accede to the Marrakesh Treaty, following Ecuador and Guatemala’s ratification the preceding day. With twenty member states having ratified or acceded, the Marrakesh Treaty will enter into force on September 30, 2016.
By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries
 In 2012, the trial court originally ruled the name and organization of the Java APIs to be a command structure for a system or method of operation not protectable under U.S. copyright law. In 2014, the Federal Circuit reversed the ruling on the copyrightability of the structure, sequence, and organization of the Java API packages and remanded the case back to the district court to consider Google’s fair use defense.
 Nick Wingfield and Quentin Hardy, “Google Prevails as Jury Rebuffs Oracle in Code Copyright Case,” The New York Times (May 26, 2016), available at http://www.nytimes.com/2016/05/27/technology/google-oracle-copyright-code.html?_r=1.
 Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).The Bridgeport case involved a two-second sample of a guitar solo, modified and looped for a total of seven seconds, used in five places throughout the recording in question.
 You can read more about the Kirtsaeng case and the first sale doctrine on our previous blog post, “Recent Supreme Court decision has impact on America’s libraries.”
 The United States Supreme Court may grant a petition for a writ of certiorari, determining there are compelling reasons to review a lower court’s decision. This may occur when U.S. courts of appeals enter conflicting decisions on the same important matter or when a U.S. court of appeals has decided an important question of federal law that should be settled by the U.S. Supreme Court. See Rule 10, Rules of the Supreme Court of the United States (2013).
 Kirtsaeng v. John Wiley & Sons, Inc., 579 U. S. ____ (2016).
 Notice of Inquiry, Section 108: Draft Revision of the Library and Archives Exceptions in U.S. Copyright Law, U.S. Copyright Office, Library of Congress, 81 Federal Register No. 109 (June 7, 2016), 36594.