Intellectual Property Law: Fair use (Part 2 of 2)

Fair use in particular areas.

Computer code.

The Oracle America, Inc. v Google, Inc. case revolves around the use of application programming interfaces (APIs) used to define functionality of the Java programming language, created by Sun Microsystems and now owned by Oracle Corporation. Google used the APIs' definition and their structure, sequence and organization (SSO) in creating the Android operating system to support the mobile device market. Oracle had sued Google in 2010 over both patent and copyright violations, but after two cycles, the case matter was narrowed down to whether Google's use of the definition and S S O of Oracle's Java APIs (determined to be copyrightable) was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to the mobile market. The case, should this ruling hold, could have a significant impact on developing products for interoperability using APIs, such as with many open source projects.

Documentary films.

In April 2006, the filmmakers of the Loose Change series were served with a lawsuit by Jules and Gédéon Naudet over the film's use of their footage, specifically footage of the firefighters discussing the collapse of the World Trade Center. With the help of an intellectual property lawyer, the creators of Loose Change successfully argued that a majority of the footage used was for historical purposes and was significantly transformed in the context of the film. They agreed to remove a few shots that were used as B-roll and served no purpose to the greater discussion. The case was settled and a potential multimillion-dollar lawsuit was avoided.

This Film Is Not Yet Rated also relied on fair use to feature several clips from copyrighted Hollywood productions. The director had originally planned to license these clips from their studio owners but discovered that studio licensing agreements would have prohibited him from using this material to criticize the entertainment industry. This prompted him to invoke the fair use doctrine, which permits limited use of copyrighted material to provide analysis and criticism of published works.

File sharing.

In 2009, fair use appeared as a defense in lawsuits against file sharing. Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged file sharer Joel Tenenbaum. Kiwi Camara, defending alleged filesharer Jammie Thomas, announced a similar defense. However, the Court in the case at bar rejected the idea that file-sharing is fair use.