JIPEL Vol. 8 – No. 2

Essay: What Remains of Fair Use for Software after Oracle v. Google?

Essay: What Remains of Fair Use for Software after Oracle v. Google?

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Simon J. Frankel and Ethan Forrest*

Two recent decisions from the Federal Circuit in the long-running litigation between Oracle and Google have upended the scope of copyright protection afforded to software. In both decisions, the court weighed in heavily on the side of strong copyright protection, even protecting the relatively functional code comprising application programming interfaces (APIs). In its most recent decision, the court found that Google’s use in its Android software of certain APIs from Java was not fair use as a matter of law—notwithstanding a jury verdict of fair use. This essay focuses on how the Federal Circuit treated the four statutory fair use factors and suggests that the court’s analysis, if applied by other courts, will make it very difficult for any use of software to qualify as a fair use. This is because, at every turn, the court’s application of the fair use factors favors the copyright owner, creating copyright risk for any borrowing of copyright code in a new program. It remains to be seen if this approach will impact how software developers build on preexisting programs.

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I “Think,” Therefore I Create: Claiming Copyright in the Outputs of Algorithms

I “Think,” Therefore I Create: Claiming Copyright in the Outputs of Algorithms

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Samantha Fink Hedrick*

Artificial intelligence (AI) has often been viewed as either an ally or an adversary—a powerful analytical system to be harnessed or a source of risk to be managed. In copyright law, AI has been treated much the same way, with academic debates focused primarily on whether AI-generated works should be owned by the AI itself, the human programmer who created the AI, or the end user. However, little attention has been paid to how the use of AI in the creative process can affect the validity of ownership claims asserted by any of these human actors in computer-generated works—a question that may have a far greater impact on creative industries.

In this article, I examine whether the use of AI as a tool of creation interferes with a human’s ability to claim copyright in the resulting works. First, I identify the various human actors who could plausibly own the copyright in the creative outputs of AI and evaluate the relative merits of their claims. Second, I analyze the doctrine of authorship to determine whether the use of AI presents a barrier to any human claiming authorship in these outputs, rather than which human should own the copyright in a computer-generated work. Finally, I explain how AI operates in the creative process and the various mechanisms of control available to humans to modify these outputs.

Ultimately, I argue that the humans who create and use AI retain sufficient control over the AI’s “decisions,” and that the use of AI therefore does not constitute a barrier to human ownership of copyrightable computer-generated works. The “original intellectual conceptions” represented in computer-generated works are still those of the humans creating and controlling the algorithms used in the creative process, not those of the AI itself. Like a camera, AI functions merely as a tool of creation, not as a sentient “author.”

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Speaking About Politics, A Fireable Offense? The Legality of Employee Speech Restrictions in the Entertainment Industry

Speaking  About Politics, A Fireable Offense? The Legality of Employee Speech Restrictions in the  Entertainment Industry

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Chloe L. Kaufman*

Despite the commonly shared belief that Americans have an undeniable right to freedom of speech, private-sector employees receive no constitutional protection for employer regulations of or reactions to their speech and federal and state statutes provide extremely limited protections. Consequently, on-air professionals in the entertainment industry, including Curt Schilling, Kathy Griffin, Colin Kaepernick, Jemele Hill and Tomi Lahren have been terminated, suspended or otherwise retaliated against after making expressions of political speech deemed controversial by the public and their respective employers.

Tomi Lahren’s dispute against her employer demonstrates the severity of a private employer’s ability to restrict political speech under U.S. law. By analyzing Lahren’s complaint and the existing legal framework, this Note highlights how private employers’ unrestricted power disproportionately affects employees in the entertainment industry, risks a chilling effect on private employee speech across industries, and consequently cuts against the foundational values of American democracy.

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Trademark Law in the Virtual Realism Landscape

Trademark Law in the Virtual Realism Landscape

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James Yang*

The recent rise of virtual reality, augmented reality, and other related technologies has created vast amounts of virtual space. Within this space, novel forms of trademark infringement and expressive use may arise. This note categorizes the above-mentioned technologies under the umbrella term of “ virtual realism” and examines trademark infringement in relation to such virtual realism technologies. In particular, the usage of physical-goods marks in virtual realism platforms is examined in relation to the usage of such marks in more traditional virtual platforms. This note argues that virtual realism platforms are less defendant-friendly in the trademark context than are traditional virtual platforms.

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