WEBVTT - Google Wins Decade-Long Copyright Battle With Oracle 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law, with June Brussel from Bloomberg Radio. 0:00:09.280 --> 0:00:11.800 The Supreme Court spared Google what could have been a 0:00:11.880 --> 0:00:15.560 multibillion dollar award and allowed tech firms a sigh of 0:00:15.600 --> 0:00:18.720 relief on Monday when it ruled that Google did not 0:00:18.800 --> 0:00:23.360 commit copyright infringement by copying Oracle programming code to develop 0:00:23.400 --> 0:00:27.400 the Android operating system now used on most smartphones. Writing 0:00:27.440 --> 0:00:30.760 for the majority in the landmark decision, Justice Stephen Bryer 0:00:30.880 --> 0:00:35.040 said Google's copying was legitimate fair use, using a recipe 0:00:35.080 --> 0:00:38.320 finding robot as part of an analogy reminiscence of the 0:00:38.360 --> 0:00:41.520 analogies that Justice has had peppered the lawyers with during 0:00:41.520 --> 0:00:45.519 the oral arguments to discern what is copyrightable. Here are 0:00:45.560 --> 0:00:49.559 Justice Briar, Chief Justice John Roberts, and Justice Elena Kagan. 0:00:50.640 --> 0:00:53.080 You didn't have to have a quarty keyboard on typewriters 0:00:53.120 --> 0:00:56.400 at the beginning, But my god, if you let somebody 0:00:56.400 --> 0:01:00.000 have a copyright on that, now they would control all typewriters, 0:01:00.120 --> 0:01:04.120 which really has nothing to do with copyright. Let's say 0:01:04.160 --> 0:01:07.040 you want to open a restaurant. You've got a great 0:01:07.040 --> 0:01:11.200 new chef, he's got great new dishes. Uh, and you say, well, 0:01:11.319 --> 0:01:13.440 we've got to figure out what the men you should 0:01:13.480 --> 0:01:15.760 look like. You know, of course you're going to have, 0:01:15.959 --> 0:01:19.880 you know, appetizers first and entrees and then desserts. You 0:01:19.880 --> 0:01:23.959 shouldn't have to worry about whether that organization is copyrighted. 0:01:25.240 --> 0:01:27.959 Suppose I own a grocery store and I come up 0:01:27.959 --> 0:01:31.560 with a really terrific way of organizing all my fresh produce, 0:01:31.640 --> 0:01:35.640 all my fruits and vegetables into these categories and subcategories, 0:01:35.760 --> 0:01:39.640 very intuitive for the shopper, and um uh, this is 0:01:39.720 --> 0:01:43.760 not the standard way. So it's different from the Chief 0:01:43.800 --> 0:01:47.080 Justices hypothetical in that way, it's novel, uh, and it's 0:01:47.120 --> 0:01:50.080 great joining me is sham Bogan as a professor at 0:01:50.080 --> 0:01:53.480 Columbia Law School. Are people correct in calling this a 0:01:53.560 --> 0:01:57.280 landmark decision? I think absolutely. The way I would put 0:01:57.320 --> 0:01:59.520 it is people have uittually expected it to be the 0:01:59.600 --> 0:02:01.960 copy case of the century. I don't think it's the 0:02:02.000 --> 0:02:04.600 copyright case of the center. It's a copyright case of 0:02:04.640 --> 0:02:07.640 the last half century in the sense that the biggest 0:02:07.680 --> 0:02:11.280 question on copyright ability that the court side steps would 0:02:11.280 --> 0:02:15.040 have entailed it examining such a critical issue and copyrights 0:02:15.080 --> 0:02:17.400 that dates back to the nineteenth century. It did not 0:02:17.560 --> 0:02:20.320 do that, but fair use being so critical to the 0:02:20.360 --> 0:02:23.600 copyright in many ways, breathing license of the copyright system 0:02:23.680 --> 0:02:27.040 has been reinvigorated. So unquestionably it's the landmark. I would 0:02:27.040 --> 0:02:29.120 say it's even more than a landmark. It's probably the 0:02:29.160 --> 0:02:32.000 biggest copyright case and intimitt at least a few decades. 0:02:32.400 --> 0:02:36.040 For those who don't know that much about computer code, 0:02:36.400 --> 0:02:41.160 tell us what the dispute was about. So the case 0:02:41.240 --> 0:02:46.200 basically entailed Google copying what are known as parts of 0:02:46.560 --> 0:02:52.480 applications program interfaces from some Java system or a PIS, 0:02:52.560 --> 0:02:54.840 and and parts of it, not the entire thing. And 0:02:54.919 --> 0:02:58.160 let me explain what API are in very basic terms. 0:02:58.720 --> 0:03:03.560 APIs represented packages of pre written computer code that are 0:03:03.639 --> 0:03:06.400 contained in a Java library, and they're meant to be 0:03:06.480 --> 0:03:09.600 able to be taken off the shelf to be reintegrated 0:03:10.200 --> 0:03:14.679 into another program, so that it saves upware programmers significant 0:03:14.760 --> 0:03:18.440 time and such. And what Google did when it was 0:03:18.520 --> 0:03:24.800 designing its Android platform for smarket phone technology. It decides, 0:03:24.880 --> 0:03:28.120 in order to ensure that programmers who are already similar 0:03:28.160 --> 0:03:31.520 with Java would be able to carry over their skills 0:03:31.560 --> 0:03:35.360 and knowledge based to their new platform. It decides to 0:03:35.440 --> 0:03:40.480 copy a portion of Sun's EPI thirty seven of Sun's 0:03:40.520 --> 0:03:44.360 applications program interfaces, or the pre written packages. It copies 0:03:44.800 --> 0:03:48.160 a portion of them called the declaring code. So let 0:03:48.160 --> 0:03:50.960 me explain the different kinds of code that exists within 0:03:51.120 --> 0:03:55.200 these pre written packages, because the case involves very importantly 0:03:55.240 --> 0:03:58.560 the distinction between these kinds of codes. So, as I said, 0:03:58.600 --> 0:04:01.560 the A p I s are written packages of code, 0:04:02.080 --> 0:04:06.080 but the APIs contained two primary forms of code. According 0:04:06.080 --> 0:04:09.400 to both parties, the first one is referred to as 0:04:09.520 --> 0:04:12.640 declaring code. And the best way to understand the declaring 0:04:12.680 --> 0:04:15.960 code is that it's the code or the part of 0:04:16.040 --> 0:04:20.160 the API that describes the function of the package or 0:04:20.200 --> 0:04:23.119 the task of the package. So these are the lines 0:04:23.120 --> 0:04:27.240 of the code that basically allow someone who's using the 0:04:27.279 --> 0:04:29.720 code or someone who's implementing it later on to know 0:04:29.880 --> 0:04:32.480 what the package is for the best way to understand 0:04:32.480 --> 0:04:34.640 it again in terms of an analogy, and there were 0:04:34.680 --> 0:04:36.960 a lot of analogies thrown out in this case during 0:04:37.040 --> 0:04:39.320 oral argument and in the brief, where that the declaring 0:04:39.360 --> 0:04:42.000 code is something like a header or like an index 0:04:42.080 --> 0:04:46.080 or a glossary that indicates what the package is about. Now, 0:04:46.200 --> 0:04:49.839 very distinct from the declaring code was something called the 0:04:49.920 --> 0:04:54.039 implementing code. The implementing code is the actual functional code 0:04:54.520 --> 0:04:59.040 of the API of the application program interface, which executes 0:04:59.080 --> 0:05:02.719 the task which the package is meant to perform. Right now, 0:05:02.920 --> 0:05:07.840 very very importantly, Google had copied about eleven thousand, five 0:05:08.360 --> 0:05:12.880 lines only of the declaring code from thirty seven of 0:05:13.000 --> 0:05:17.480 these pre written packages or API. Google did not copy 0:05:17.680 --> 0:05:21.520 any of the implementing code that Oracle owns, right, and 0:05:21.560 --> 0:05:25.400 so the entire case revolved around Google's copying of these 0:05:25.440 --> 0:05:29.320 eleven thousand, five hundred lines of declaring code from the 0:05:29.720 --> 0:05:34.159 Java AMPI library that Oracle owned, and obviously Oracle stood 0:05:34.240 --> 0:05:38.320 for copyright infringement, claiming that this was copying not just 0:05:38.640 --> 0:05:41.679 of the codes of the declaring code itself, but also 0:05:41.720 --> 0:05:45.280 the organizational structure, the way in which these headers had 0:05:45.320 --> 0:05:50.080 been organized in the library, something referred to as the structure, sequence, 0:05:50.120 --> 0:05:53.160 and organization of the code of the declaring code had 0:05:53.200 --> 0:05:56.680 also been copied. So the case entirely adjusts just in summary. 0:05:56.680 --> 0:06:01.080 After that long response involved Google's copying of the declaring 0:06:01.160 --> 0:06:05.520 codes from thirty seven pre written packages called APIs that 0:06:05.600 --> 0:06:09.240 were owned by or What were the issues before the court. 0:06:10.120 --> 0:06:12.080 So it's important to understand that when the Court took 0:06:12.120 --> 0:06:15.599 the case, there were two principal issues that were argued. 0:06:16.080 --> 0:06:19.440 The first one was whether the declaring code itself and 0:06:19.640 --> 0:06:25.719 its organizational structure, THEO were copyrightable under copyright rule that 0:06:25.920 --> 0:06:32.520 excludes protection for functional content for functional expression right um. 0:06:32.560 --> 0:06:35.679 And the second issue was whether the copying by Google, 0:06:35.880 --> 0:06:41.040 even assuming it was copyrightable content, would constitute sit The 0:06:41.200 --> 0:06:44.800 court duct the first question and moved to the second one, 0:06:44.800 --> 0:06:47.120 saying if we want to resolve it because the first 0:06:47.200 --> 0:06:50.880 question would be a little too technological intensive, technologically intensive, 0:06:50.960 --> 0:06:53.839 and and it answered the second question by saying that 0:06:54.480 --> 0:06:57.200 let's look at the nature of the code. So what 0:06:57.320 --> 0:06:59.880 the court does is it takes the four fair use 0:07:00.080 --> 0:07:03.760 factors that are codified in the Statutes of copyright statute. 0:07:04.120 --> 0:07:06.120 But what are the interesting things that Justice Brier does 0:07:06.120 --> 0:07:10.040 in the majority opinion is he sort of expands and 0:07:10.160 --> 0:07:14.760 reinterpret these factors in a way that makes them applicable 0:07:15.000 --> 0:07:17.960 to computer software. So he says, so, for instance, the 0:07:18.040 --> 0:07:21.559 first factor that he uses is a factors that hasn't 0:07:21.560 --> 0:07:24.840 been used extensively in the prior juristudents, a factor known 0:07:24.880 --> 0:07:27.840 as the nature of the copyrighted work. Most courts have 0:07:27.920 --> 0:07:31.000 said it's probably the least important factor in the overall 0:07:31.000 --> 0:07:35.560 fair use analysis. Justice Brier says, actually, for computer software, 0:07:35.600 --> 0:07:37.720 it is perhaps one of the, if not the most 0:07:37.760 --> 0:07:41.720 important factors, and it allows us to sift between the 0:07:41.760 --> 0:07:44.400 types of computer code that are an issue in a 0:07:44.480 --> 0:07:48.840 software So, now, why did the court find that Google's 0:07:49.080 --> 0:07:53.120 use of that code was fair use? Writing forward, the majority, 0:07:53.160 --> 0:07:57.360 Justice Brier focuses on I would say a couple of 0:07:57.360 --> 0:07:59.720 the fair use factors more than the others to find 0:07:59.760 --> 0:08:02.120 that it stay use. Here, the most important thing to 0:08:02.160 --> 0:08:05.600 note is that he takes the statutory factors and he 0:08:05.760 --> 0:08:09.280 modifies them for the context of computer software. So what's 0:08:09.400 --> 0:08:13.400 very important is how he adapts their use for computer software. 0:08:13.480 --> 0:08:16.080 So to illustrate, there's through the factors that he relies 0:08:16.120 --> 0:08:18.920 on an important say use factor. The second factor in 0:08:18.960 --> 0:08:21.880 the statute is something called the nature of the copyrighted work. 0:08:22.360 --> 0:08:25.120 Briar spends a lot of time on this factor, showing 0:08:25.120 --> 0:08:28.720 how it can be used to differentiate between different forms 0:08:28.720 --> 0:08:32.280 of computer code. And he says, well, because we're dealing 0:08:32.360 --> 0:08:35.679 with this declaring code which has this function like a 0:08:35.679 --> 0:08:39.120 header or an index and not the implementing code. We 0:08:39.200 --> 0:08:43.960 have to approach it differently. And because it's functional code 0:08:44.160 --> 0:08:47.440 of this declaring time, uh, it isn't really to be 0:08:47.480 --> 0:08:50.880 given as much protection as the implementing code because Google 0:08:50.880 --> 0:08:53.720 didn't copy the implementing code. So that factor, he finds 0:08:53.880 --> 0:08:58.240 very importantly allows him to recognize that what Google did 0:08:58.320 --> 0:09:00.840 could constitute a stronger case for fair use under the 0:09:00.880 --> 0:09:04.200 factor because the nature of what it copied wasn't core 0:09:04.320 --> 0:09:08.679 or central the copyists. Another important factor, and perhaps one 0:09:08.720 --> 0:09:11.359 of the most important and his analysis, is this conclusion 0:09:11.600 --> 0:09:14.360 that what Google did is was engaging in a form 0:09:14.400 --> 0:09:18.600 of what it's called interoperability, trying to allow software programmers 0:09:18.679 --> 0:09:22.319 to use their knowledge and awareness of the Java platform 0:09:22.559 --> 0:09:26.920 in developing the Android apps and the Android framework so 0:09:26.960 --> 0:09:31.320 that it could be compatible back with Java. This interoperability, 0:09:31.400 --> 0:09:35.040 he basically says, this is the copying a new purpose, 0:09:35.720 --> 0:09:38.840 and this new purpose was something that he weighs very 0:09:38.880 --> 0:09:43.040 heavily to say that it could constitute a transformative used, 0:09:43.480 --> 0:09:47.120 a transformative used under the fair use analysis. And this 0:09:47.240 --> 0:09:49.280 again he weighs very heavily in favor of Google. And 0:09:49.320 --> 0:09:51.320 the last thing of the other I think the most 0:09:51.320 --> 0:09:53.800 important factor that he relies on is to say, let's 0:09:53.880 --> 0:09:57.520 just not focus on the commercial harm that Oracle suffered, 0:09:57.800 --> 0:10:00.200 but let's really focus on the public benefit as well 0:10:00.320 --> 0:10:03.920 from Google's actions. Let's look at how the interoperability and 0:10:03.960 --> 0:10:08.440 the development of a new platform expands public benefits. And 0:10:08.559 --> 0:10:11.360 therefore he says the economic harm should be weighed against 0:10:11.400 --> 0:10:14.160 the benefits. And this favor is Google as well. So 0:10:14.280 --> 0:10:16.640 I think these three factors are the most important in 0:10:16.679 --> 0:10:19.400 his analysis, and that's why he's finds there to be there. 0:10:19.679 --> 0:10:22.400 But I think the key point really more than anything else, 0:10:22.400 --> 0:10:25.839 that he expands each of these factors and tailored for 0:10:25.960 --> 0:10:29.360 computer software in a new and interesting ways. Let's talk 0:10:29.400 --> 0:10:33.880 about the descent written by Clarence Thomas, because he said 0:10:34.160 --> 0:10:38.360 that this wasn't fair use Google erased five percent of 0:10:38.400 --> 0:10:42.720 the value of oracles partnership with Amazon. And he also 0:10:42.840 --> 0:10:46.720 criticizes the fact that the court didn't decide whether or 0:10:46.760 --> 0:10:50.439 not this code was copyrightable. So what do you think 0:10:50.440 --> 0:10:56.280 of his descent? So Justice Thomas's descent very interestingly, um, 0:10:56.440 --> 0:10:59.240 it's very close to what when many people expected after 0:10:59.400 --> 0:11:02.800 oral argument would be the court majority position in the 0:11:03.040 --> 0:11:06.600 oral argument, most of the justices were asking the lawyer's 0:11:06.720 --> 0:11:10.960 questions about copyright ability and how they could reconcile, especially 0:11:11.040 --> 0:11:14.440 Google lawyer, how the Google could reconcile its position with 0:11:14.600 --> 0:11:17.600 the text of the statute, which says that computer code 0:11:17.720 --> 0:11:21.120 is copyrightable and it doesn't draw a distinction between different 0:11:21.120 --> 0:11:24.800 forms of computer code. Justice Thomas really builds on that 0:11:25.000 --> 0:11:29.560 in his dissenting opinion, saying, look, the Court basically side 0:11:29.600 --> 0:11:34.000 steps critical question of whether declaring code is copyrightable at 0:11:34.000 --> 0:11:38.840 all and reintroduces this copyright ability or the extent of 0:11:38.880 --> 0:11:42.920 copyright protection analysis into fair youth. And he sees that 0:11:43.040 --> 0:11:47.600 as circumventing congresses policy in the statute. Right. So, in 0:11:47.679 --> 0:11:50.320 his view, if you look at the text of the statue, 0:11:50.480 --> 0:11:54.280 there is no distinction between declaring code and implementing code. 0:11:54.800 --> 0:11:57.800 And what the Court is doing, in his view, is 0:11:58.160 --> 0:12:02.400 introducing an artificial distinction that runs counter to congressional policy 0:12:02.440 --> 0:12:05.800 and very importantly runs counter to the text of the statute. Right. 0:12:05.960 --> 0:12:08.800 And that's Justice Thomas's view, And so he first falls 0:12:08.800 --> 0:12:12.280 supports the side stepping this question because he's acutely aware 0:12:12.520 --> 0:12:15.640 of the fact that the majority is reintroducing this analysis 0:12:15.760 --> 0:12:18.200 under the rubric of the nature of the copyrighted work 0:12:18.559 --> 0:12:22.920 in Fair You. But even on the majority's own terms, 0:12:22.920 --> 0:12:26.920 Justice Thomas recognizes that the majority is expanding the domain 0:12:26.960 --> 0:12:29.080 of fair use of every one of these factors. So 0:12:29.120 --> 0:12:32.000 to go back to what you indicated his discussion of 0:12:32.040 --> 0:12:35.040 the value of oracles that was emustrated, He says, well, 0:12:35.440 --> 0:12:38.960 this is an astoundingly new expansion of the concept of 0:12:39.080 --> 0:12:42.680 market harms in the fourth fair use factor. Where we've 0:12:42.720 --> 0:12:45.800 examined what kind of harm the copyright owner suffers in 0:12:45.840 --> 0:12:49.000 the existing market or in future markets, We've never really 0:12:49.040 --> 0:12:52.920 examined public benefits. The statute doesn't talk about the public benefits. 0:12:52.960 --> 0:12:56.280 The statute doesn't talk about cost benefit analysis that focus 0:12:56.400 --> 0:12:59.560 on the harm to the existing our potential value of 0:12:59.600 --> 0:13:02.920 the work. And so that's why he falls the majority 0:13:03.040 --> 0:13:06.040 for expanding each of the fair Youth factors in a 0:13:06.080 --> 0:13:08.920 way that doesn't too closely to the text. I think 0:13:09.240 --> 0:13:13.160 this was not unexpected um Justice Thomas in many ways 0:13:13.200 --> 0:13:16.640 of channeling his textualism and the need for the Court 0:13:16.800 --> 0:13:21.040 to be aware of its appropriate role in the copyright 0:13:21.080 --> 0:13:25.080 system to the text and to not second guest Congresses 0:13:25.520 --> 0:13:27.920 policy decisions that are apparent in the text and what 0:13:28.000 --> 0:13:31.320 he sees the majority doing is violating that rule. But 0:13:31.400 --> 0:13:35.240 in defense of the majority's opinions, by pushing everything into 0:13:35.320 --> 0:13:39.280 fair you, fair used has been recognized as this domain 0:13:39.320 --> 0:13:42.840 where judges have significant freedom. Fair use is effectively a 0:13:42.920 --> 0:13:45.920 judge made job friend that is in the statue today, 0:13:45.960 --> 0:13:49.040 but Congress wanted courts to continue to develop it. So 0:13:49.200 --> 0:13:52.400 Justice Bryer, by pushing all of these decisions or all 0:13:52.440 --> 0:13:55.840 of these elements and expansions into fair youth has in 0:13:55.880 --> 0:14:00.840 many ways a perfect response to Justice Thomas's textualism, basically 0:14:00.880 --> 0:14:04.079 by saying, well, fair use is not a textualist doctrine. 0:14:04.160 --> 0:14:07.800 Fair use is a doctrine that is judged made. And 0:14:07.880 --> 0:14:12.240 so does this decision then expand the idea of fair 0:14:12.360 --> 0:14:16.960 use in computer software? Oh? I think it absolutely does. 0:14:17.120 --> 0:14:19.040 I think there are three ways in which it does. 0:14:19.080 --> 0:14:21.640 There's a there's a short term inplication, there's a medium 0:14:21.720 --> 0:14:23.960 term implication, and then there's a long term implication that 0:14:24.000 --> 0:14:27.600 goes beyond computer software. I think the first thing in 0:14:27.640 --> 0:14:31.360 the short term is it reinforces the idea that fair 0:14:31.480 --> 0:14:35.160 use protected borrowing. In the context of computer software, that 0:14:35.360 --> 0:14:41.160 interoperability writes the compatibility between developing technologies and older ones 0:14:41.360 --> 0:14:44.400 is an important value that should be factored into the 0:14:44.480 --> 0:14:47.240 fair use and out that had already been nascent in 0:14:47.360 --> 0:14:49.920 some prior case law. But the Supreme Court reaffirms that. 0:14:50.400 --> 0:14:54.560 I think it's important and very importantly. If it's significant enough, 0:14:54.640 --> 0:14:58.080 it constitutes a transformative use. So I think it makes 0:14:58.120 --> 0:15:01.840 that that short term expansion to the reaffirmation. But I 0:15:01.840 --> 0:15:03.960 think what it also does, and this is the second 0:15:03.960 --> 0:15:07.200 point um in the medium term by by saying that 0:15:07.440 --> 0:15:11.520 there's one particular factor in the fair use analysis that 0:15:12.320 --> 0:15:16.080 is particularly appropriate for computer software, namely the factor called 0:15:16.080 --> 0:15:20.040 the nature of the copyrighted work. Um, it allows courts 0:15:20.040 --> 0:15:22.880 in the future to be able to examine types of 0:15:22.920 --> 0:15:27.160 computer software that are being litigated for copyright infringements. So 0:15:27.280 --> 0:15:30.120 IFACT think that's the medium term is the implication is 0:15:30.160 --> 0:15:32.600 that fair use is going to be the next frontier 0:15:32.600 --> 0:15:37.120 of litigation for computer software types of code, classifications between 0:15:37.160 --> 0:15:39.720 them and the extent to which some of them are 0:15:39.760 --> 0:15:44.040 more purely functional as opposed to implementation of the program 0:15:44.440 --> 0:15:46.440 uh is something that we're going to start seeing courts 0:15:46.520 --> 0:15:49.240 do under the rubries of the fair use analysis. And 0:15:49.240 --> 0:15:51.080 and then the last thing is In the long term, 0:15:51.120 --> 0:15:54.640 I think the implications of the courts fair use decisions 0:15:54.640 --> 0:15:58.240 go well beyond computer software. UM. I think the signals 0:15:58.240 --> 0:16:01.640 adjustice rier in the majority sent for the interpretation of 0:16:01.720 --> 0:16:04.080 fair use. In the long term, we're going to see 0:16:04.480 --> 0:16:07.920 carry over beyond computer software and and liberate the doctrine 0:16:07.920 --> 0:16:11.080 from the text of the statute. UM say that most 0:16:11.120 --> 0:16:12.920 of it can be decided by a judge. You don't 0:16:12.920 --> 0:16:15.480 have to rely on a jury. And that fair used, 0:16:15.560 --> 0:16:18.040 very importantly is a way of determining the scope of 0:16:18.120 --> 0:16:20.680 the work, the scope of protection and a work. UM. 0:16:20.720 --> 0:16:22.600 So I think fair use very much as front and 0:16:22.600 --> 0:16:25.600 center and and has been given a new invigorated growth. 0:16:26.160 --> 0:16:31.480 So then does this decision settle questions for tech companies 0:16:31.600 --> 0:16:36.040 or does it open more questions and more litigation about 0:16:36.120 --> 0:16:39.880 fair use. I think it settles some right now in 0:16:39.920 --> 0:16:42.560 the short term, and it opens up more litigation for 0:16:42.600 --> 0:16:44.440 fair use in different ways. And let me explain why. 0:16:44.800 --> 0:16:48.120 I think the core side. Stepping the question of copyright 0:16:48.200 --> 0:16:52.240 ability in the abstract for computer software allows tech companies 0:16:52.280 --> 0:16:55.640 to continue to develop and work under the assumption that 0:16:55.840 --> 0:17:00.120 computer software obtains protection under the copyright statute with out 0:17:00.120 --> 0:17:02.240 any problems. I think one of the big concerns that 0:17:02.480 --> 0:17:05.439 some had voice, certainly some a making head voice, was 0:17:05.520 --> 0:17:09.200 that the court could question the entire availability of copyright 0:17:09.200 --> 0:17:11.040 for computer SEF. But of course there is no such things. 0:17:11.280 --> 0:17:13.800 So I think in that sense the status quo is preserved, 0:17:13.840 --> 0:17:17.440 at least for now. But insofar as fair use is 0:17:17.440 --> 0:17:20.040 going to become the next battleground, let's not forget that 0:17:20.160 --> 0:17:24.560 fair use is a very fact intensive determination. Fair use 0:17:24.680 --> 0:17:28.040 is not how the determination that happens completely in the abstract. 0:17:28.359 --> 0:17:31.000 It's case by case. It's based on a factual record, 0:17:31.320 --> 0:17:35.560 and it involves a determination of what the borrowing entails, 0:17:35.640 --> 0:17:37.800 or how much was taken, and what its impact was. 0:17:38.480 --> 0:17:40.639 I don't think that in the abstract is going to 0:17:40.680 --> 0:17:43.560 cause any problems, but to the extent that there is 0:17:43.960 --> 0:17:47.760 significant borrowing of this kind that entails interoperability, I do 0:17:47.840 --> 0:17:50.160 believe that fair use is something that parties will start 0:17:50.160 --> 0:17:52.520 thinking about as the next battle ground if they're willing 0:17:52.520 --> 0:17:55.520 to jump into litigation. Right fair use is cost intens 0:17:55.560 --> 0:17:58.560 it involves litigation. It's not something that can be determined 0:17:58.600 --> 0:18:00.760 in the abstract, given how fact intense of it is. 0:18:01.160 --> 0:18:03.159 So in short, I think the tech companies don't have 0:18:03.200 --> 0:18:05.679 too much to worry about. In many ways, it reaffirms 0:18:05.720 --> 0:18:09.480 the practice of existing borrowing, and it it recognizes the 0:18:09.640 --> 0:18:13.640 value of interoperability and computer programming. But um, and that's 0:18:13.640 --> 0:18:16.320 primarily because the court does not resolve the question of 0:18:16.440 --> 0:18:19.399 copyright ability, which it leads for another day. Thanks for 0:18:19.440 --> 0:18:23.040 being in the Bloomberg Law Show. That's Professor Shambaganesh of 0:18:23.119 --> 0:18:27.399 Columbia Law School. It was day done. At the murder 0:18:27.480 --> 0:18:30.960 trial of former Minneapolis police officer Derek Chauvin in the 0:18:31.000 --> 0:18:34.840 death of George Floyd. Chauvin's defense attorney has been arguing 0:18:34.880 --> 0:18:38.280 that Floyd's death was caused by drugs, heart problems, and 0:18:38.320 --> 0:18:42.320 other health ailments, not by Chauvin's knee on his neck. Today, 0:18:42.400 --> 0:18:45.720 Dr Martin Tobin, a lung and critical care specialist who 0:18:45.760 --> 0:18:49.119 is also well versed in fentanel deaths, took the stand 0:18:49.200 --> 0:18:54.359 and refuted that defense. Here's Prosecutor Jerry Blackwell questioning Dr Tobin, 0:18:55.080 --> 0:18:57.639 do any of those conditions have anything to do with 0:18:57.720 --> 0:19:03.320 the cause of Mr Foyd's death in your professional opinion? Whatsoever? None, whatsoever? 0:19:03.840 --> 0:19:07.440 And again, what was the cause? Us? That those conditions 0:19:07.440 --> 0:19:10.640 don't matter? The cause of death is a low level 0:19:10.680 --> 0:19:13.760 of oxygen. Joining me is Richard Frays, a professor at 0:19:13.760 --> 0:19:18.080 the University of Minnesota Law School. Has the prosecution built 0:19:18.160 --> 0:19:22.320 an overwhelming case so far? Would you say? Well? No, 0:19:22.840 --> 0:19:26.440 Although if you ever watch a trial, it's always amazing 0:19:26.560 --> 0:19:31.160 how convincing the prosecution case seems when it's only subject 0:19:31.240 --> 0:19:34.920 to cross examination, and then when the other side gets 0:19:35.000 --> 0:19:39.600 up and start to poke holes and produce its own experts, 0:19:39.960 --> 0:19:43.479 then you can turn around and say, Wow, it's not 0:19:43.560 --> 0:19:47.280 a strong prosecution case at all, And you know what 0:19:47.320 --> 0:19:49.480 should I think? So we're gonna have to wait and 0:19:49.520 --> 0:19:51.960 see what the defense case looks like. But I would 0:19:52.000 --> 0:19:55.800 say that the prosecution has has done a very good 0:19:55.920 --> 0:20:01.000 job of laying out its key themes, anticipating even before 0:20:01.040 --> 0:20:04.840 they cross examination, anticipating where the defense is going to 0:20:05.080 --> 0:20:09.760 attack most forcefully. So, particularly on the issues of causation 0:20:09.800 --> 0:20:14.000 of deaths by Derek Chauvin and justified use of force. 0:20:14.600 --> 0:20:18.200 I think they've made as strong a case as they can. 0:20:19.000 --> 0:20:21.920 We'll have to see if the defense can come back. 0:20:22.160 --> 0:20:24.960 I think the use of force, I have never heard 0:20:25.040 --> 0:20:28.800 of a police killing a prosecution. There aren't that many 0:20:28.800 --> 0:20:30.800 of them. I've never heard of one that had so 0:20:30.840 --> 0:20:36.480 many police officers testifying against the police officer that's on trial. 0:20:37.160 --> 0:20:40.320 You keep hearing that the blue wall has crumbled. Is 0:20:40.359 --> 0:20:44.440 that particularly effective for the jury to have police officers 0:20:44.680 --> 0:20:49.600 within his own former police department, the police chief, testifying 0:20:49.640 --> 0:20:54.040 against him. I would think so. I don't know how 0:20:54.160 --> 0:20:57.640 the other than the kind of questions that we've seen 0:20:57.640 --> 0:21:01.040 a cross examination pointing out, well, how long has event 0:21:01.080 --> 0:21:04.320 since you arrested somebody? Did you ever arrest anybody? Do 0:21:04.359 --> 0:21:07.520 you do you understand that officers have discretion and have 0:21:07.640 --> 0:21:12.200 to make decisions on the street. Yes, yes, yes, the 0:21:12.320 --> 0:21:15.840 witnesses say, so, you know, we know that the defense 0:21:15.920 --> 0:21:18.920 has has tried to limit the damage that's been done. 0:21:19.240 --> 0:21:22.280 They may at some point, just as the defense is 0:21:23.040 --> 0:21:27.680 essentially trying to blame the victim because he used drugs, 0:21:27.920 --> 0:21:31.440 they will also perhaps try to point the finger at 0:21:31.920 --> 0:21:34.560 the police department and say, all of these people are 0:21:34.640 --> 0:21:37.920 just trying to shift blame to this poor officers Chauvin. 0:21:38.600 --> 0:21:40.520 They may try that type me but I think I 0:21:40.600 --> 0:21:45.960 think I'm guessing that the jurors will be impressed by 0:21:46.040 --> 0:21:51.560 the police testimony against Chauvin. Yesterday, video was played and 0:21:51.600 --> 0:21:55.640 the question was whether George Floyd said I ate too 0:21:55.640 --> 0:22:01.040 many drugs versus I ain't do no drugs. And some 0:22:01.160 --> 0:22:04.320 of the reporters said that the jury started to perk 0:22:04.440 --> 0:22:06.960 up during this where they had been you know, they've 0:22:06.960 --> 0:22:11.359 been in trance during the testimony of the eyewitnesses, but 0:22:11.520 --> 0:22:14.679 not so much during the use of force experts. But 0:22:14.880 --> 0:22:19.119 here they started to listen carefully to these particular words. 0:22:19.200 --> 0:22:22.879 Make a difference because the prosecution has admitted that Floyd 0:22:22.920 --> 0:22:26.639 did drugs. Yeah, and I I thought that was a 0:22:26.640 --> 0:22:30.359 bit of a tempest in a teapot, because even if 0:22:31.400 --> 0:22:35.960 he said I too many drugs, and even if Chauvin 0:22:36.040 --> 0:22:39.560 heard that comment, that's just another red flag. This is 0:22:39.640 --> 0:22:44.280 somebody who may be in serious medical distress and you 0:22:44.320 --> 0:22:46.280 need to be careful that you don't push them over 0:22:46.320 --> 0:22:49.520 the edge. So I think it cuts both ways. And 0:22:49.800 --> 0:22:52.360 I can imagine the jurors probably thought, well, our job 0:22:52.440 --> 0:22:55.199 is to is to decide the fact. Here is a 0:22:55.240 --> 0:22:59.480 contested factual issue. We have ears, so we can decide 0:22:59.600 --> 0:23:03.199 ourself what he said. So it doesn't surprise me that 0:23:03.280 --> 0:23:06.680 they perked up. There was testimony about the pills found 0:23:06.800 --> 0:23:10.399 in Floyd's car, as well as the police car. Is 0:23:10.440 --> 0:23:14.879 that something the prosecution introduced in order to take the 0:23:14.920 --> 0:23:19.640 bite out of the defense introducing it? Yes, that's a standard, 0:23:19.720 --> 0:23:23.640 a standard move in litigation. If you know something bad 0:23:23.800 --> 0:23:27.239 is going to come out, introduce it yourself, above all 0:23:27.359 --> 0:23:30.240 to show you're not hiding anything, but also to put 0:23:30.520 --> 0:23:34.440 characterize it in a certain way that if you wait 0:23:34.560 --> 0:23:37.840 until the other side presents it, they're gonna characterize it 0:23:37.960 --> 0:23:39.879 their way, and that would be the first time the 0:23:39.960 --> 0:23:43.360 jury hears it. The first impressions are important. So it's 0:23:43.440 --> 0:23:50.240 absolutely standard for one side to to present damaging information 0:23:50.320 --> 0:23:53.160 that they know the other side is going to want 0:23:53.160 --> 0:23:56.320 to introduce anyway. In a normal case, you wouldn't have 0:23:56.560 --> 0:23:59.879 the video that you have here, video from different angle. 0:24:00.560 --> 0:24:04.240 So I'm wondering how much experts testifying about the use 0:24:04.280 --> 0:24:07.760 of force matters in a case where you have the 0:24:07.880 --> 0:24:11.800 video and you see what was being done. Well, I 0:24:12.160 --> 0:24:15.879