Amicus Curiae Brief — Google LLC, Petitioner v. Oracle America, Inc.

Supreme Court briefFeb 18, 2020

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No. 18-956

In the

Supreme Court of the United States

__________________

GOOGLE LLC,

Petitioner,

ORACLE AMERICA, INC.,

Respondent.

__________________

On Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

__________________

Brief of Amici Curiae Helienne Lindvall, David

Lowery, Blake Morgan and the Songwriters

Guild of America in Support of Respondent

__________________

CHRISTIAN CASTLE

CHRISTIAN L. CASTLE,

ATTORNEYS

9600 GREAT HILLS TRAIL

SUITE 150W

AUSTIN, TEXAS 78759

(512) 420-2200

asst1@christiancastle.com

CHARLES J. SANDERS

Counsel of Record

29 KINGS GRANT WAY

BRIARCLIFF, NEW YORK 10510

(914) 366-6642

cjs@csanderslaw.com

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii

INTERESTS OF AMICI CURIAE. . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

INDEPENDENT

ARTISTS

AND

SONGWRITERS RELY ON COPYRIGHT

PROTECTION AND CLEAR FAIR USE

STANDARDS TO DEFEND THEMSELVES

IN THE MARKET. . . . . . . . . . . . . . . . . . . . . . 5

II.

GOOGLE’S

USE

CLEARLY

COMMERCIAL.. . . . . . . . . . . . . . . . . . . . . . . 17

A. Google’s Market Dominance Lowers

the “Customary Price” of Copyrighted

Works.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B. Google Benefits Commercially from

Weaker Copyright Protection. . . . . . . . . . 25

III.

GOOGLE’S PRIVATE INTERESTS ARE

NOT THE PUBLIC INTEREST. . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

TABLE OF AUTHORITIES

CASES

A&M Records, Inc. v. Napster, Inc.,

239 F.3d 1004 (9th Cir. 2001). . . . . . . . . . . . . . . 19

Campbell v. Acuff-Rose Music, Inc.,

510 U.S. 569 (1994). . . . . . . . . . . . . . . . . . . . . . 6, 7

Capitol Records, LLC v. ReDigi Inc.,

No. 16-2321 (2d Cir. Dec. 12, 2018) . . . . . . . . . . . 7

Elsmere Music, Inc. v. Nat’l Broad. Co.,

482 F. Supp. 741 (S.D.N.Y.), aff’d, 632 F.2d 252

(2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Estate of Smith v. Graham,

No. 19-28 (2d Cir. Feb. 3, 2020) . . . . . . . . . . . . . . 7

Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986). . . . . . . . . . . . . . . . . 7

Folsom v. Marsh,

9 F. Cas. 342 (C.C.D. Mass 1841). . . . . . . . . . . . 32

Harper & Row Publishers, Inc. v. Nation Enters.,

471 U.S. 539 (1985). . . . . . . . . . . . . . . . 5, 6, 18, 31

Lennon v. Premise Media Corp.,

556 F. Supp. 2d 310 (S.D.N.Y. 2008) . . . . . . . . . . 7

Lenz v. Universal Music Corp.,

801 F.3d 1126 (9th Cir. 2015). . . . . . . . . . . . . . . 28

Metro-Goldwyn-Mayer Studios Inc. v. Grokster,

Ltd.,

545 U.S. 913 (2005). . . . . . . . . . . . . . . . . . . . . 6, 21

iii

Oracle Am., Inc. v. Google, LLC,

886 F.3d 1179 (Fed. Cir. 2018) . . . . . . . . 17, 18, 19

Soc’y of Holy Transfiguration Monastery, Inc. v.

Gregory,

689 F.3d 29 (2d Cir. 2012) . . . . . . . . . . . . . . . . . 19

Weissmann v. Freeman,

868 F.2d 1313 (2d Cir. 1989) . . . . . . . . . . . . . . . 19

CONSTITUTION

U.S. Const. Art. I, § 8, cl. 8 . . . . . . . . . . . . . . . . . . . . 5

STATUTES

17 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

17 U.S.C. § 102(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

17 U.S.C. § 114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

17 U.S.C. § 512(a)–(d) . . . . . . . . . . . . . . . . . . . . . . . 27

17 U.S.C. § 512(c)(1)(C) . . . . . . . . . . . . . . . . . . . . . . 13

17 U.S.C. § 512(g). . . . . . . . . . . . . . . . . . . . . . . . . . . 13

17 U.S.C. § 512(g)(3)(C) . . . . . . . . . . . . . . . . . . . . . . 27

Act (H.R. 2426, S. 1273 116 th Cong. 1st Sess.) . . 12

Digital Millennium Copyright Act . . . . . . . . . . . . . 13

OTHER AUTHORITIES

“47% of time spent listening to on-demand music is

on YouTube,” Music Consumer Insight Report,

International Federation of the Phonographic

Industry (IFPI) (2018) . . . . . . . . . . . . . . . . . . . . 10

Alexa, The Top 500 Sites on the Web, available at

https://www.alexa.com/topsites . . . . . . . . . . . . . 10

Amer. Bar Assn., Intellectual Property Law Section

Litigation Section, Report to the House of

Delegates, Resolution 110A (2019) . . . . . . . . . . . 12

ASCAP Distributes a Record $1.1 Billion in

Royalties, Variety (May 1, 2019) available at

https://variety.com/2019/music/news/ascapdistributes-a-record-1-1-billion-in-royalties1203202183/#! . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Vinton G. Cerf, Keep the Internet Open, N.Y. Times

(May 24, 2012) https://www.nytimes.com/

2012/05/25/opinion/keep-the-internet-open.html.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Comments of Maria Schneider, Study on the Moral

Rights of Attribution and Integrity, U.S.

Computer & Communications Industry Association,

Fair Use In The Economy:

Economic

Contribution of Industries Relying on Fair Use

(2017), available at https://www.ccianet.org/wpcontent/uploads/2017/06/Fair-Use-in-the-U.S.Economy-2017.pdf. . . . . . . . . . . . . . . . . . . . . . . . 14

Content Delistings Due to Copyright, Google

Transparency Report available at

https://transparencyreport.google.com/copyright/

overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Rob Copeland, Google Parent Debuts YouTube,

Cloud Results, Reports Weak Earnings, Wall

Street J. (Feb. 3, 2020) available at

https://www.wsj.com/articles/google-parentposts-disappointing-earnings-but-discloses-newyoutube-cloud-details-11580765421. . . . . . . . . . 11

26, 2005) (statement of Alexander Macgillivray

Google),

available

https://www.copyright.gov/orphan/transcript/

0726LOC.PDF . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

David Dayen, Google’s insidious shadow lobbying:

How the Internet giant is bankrolling friendly

academics—and skirting federal investigations,

Salon (Nov. 15, 2015) available at https://www.

salon.com/test/2015/11/24/googles_insidious_sh

adow_lobbying_how_the_internet_giant_is_ba

nkrolling_friendly_academics_and_skirting_fe

deral_investigations/. . . . . . . . . . . . . . . . . . . . . . 15

Determination of Royalty Rates and Terms for

Making and Distributing Phonorecords

(Phonorecords III), 84 Fed. Reg. 1918

(Feb. 5, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Directives 96/9/EC and 2001/29/EC), 62 Off. J.

Euro. Union. L130 (May 17, 2019) . . . . . . . . . . . 23

Directive

(EU)

2019/790

the

European Parliament and of the Council of 17

April 2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kevin Erickson, Zoë Keating's YouTube Dilemma,

Future of Music Blog (Jan. 29, 2015) available at

https://futureofmusic.org/blog/2015/01/29/zoëkeatings-youtube-dilemma-what-you-need-know

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Jason Fitzpatrick, If You’re Not Paying for It; You’re

the Product, Lifehacker (Nov. 23, 2010). . . . 21, 22

Eriq Gardner, Irving Azoff Threatens to Yank

20,000 Songs From YouTube, Hollywood

Reporter (Nov. 12, 2014) available at

https://www.hollywoodreporter.com/thr-esq/

irving-azoff-threatens-yank-20000-748631 . . . . 31

“Google pledges $2 million to support [Stanford]

Law School center” Stanford Report (December

6, 2006) available at https://news.stanford.edu/

news/2006/december6/google-120606.html . . . . 15

Google reserves YouTube DRM for partners only,

Reuters (Feb. 19, 2007) https://www.alphr.com/

news/internet/105118/google-reserves-youtubedrm-for-partners-only . . . . . . . . . . . . . . . . . . . . . 24

Google

Transparency

Report

h t t p s: / / t r a n s p a r e n c y r e p o r t . g o o g l e . c o m /

vii

Jeff Gould, The Natural History of Gmail Data

Mining, Medium (June 24, 2014), available at

https://medium.com/@jeffgould/the-naturalhistory-of-gmail-data-mining-be115d196b10 . . 20

Debbie Harry, Musicians Like Me Need to Fight

Against the Giants of YouTube and Google, The

Guardian (Mar. 22, 2019) available at

https://www.theguardian.com/commentisfree/2

019/mar/22/musician-shocked-opposition-eucopyright-law-youtube-debbie-harry-blondie . . 22

Tim Ingham, SoundExchange Paid Out $908

Million to Artists and Labels in 2019, Music

Business Worldwide (Jan. 27, 2020) . . . . . . . . . . 9

International Federation of the Phonographic

Industries, Fixing the Value Gap: The European

https://ifpi.org/value_gap.php. . . . . . . . . . . . . . . 22

Respect

Music,

available

https://www.irespectmusic.org . . . . . . . . . . . . . . . 2

Jean-Noël Jeanneney, Google and the Myth of

Universal Knowledge: A View from Europe

(2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Joint Supplemental Comments of the American

Association Of Independent Music and Future

Of Music Coalition In Response To Request For

Empirical Research at 5-6, In the Matter of

Section 512 Study, U.S. Copyright Office (Docket

No. 2015-7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

viii

Jordan Kahn, Major record labels again complain of

unfair YouTube deals as contracts set to expire,

9to5Google (April 11, 2016) available at

https://9to5google.com/2016/04/11/record-labelsyoutube-riaa-royalities-complaint/. . . . . . . . . . . 23

Zoë Keating, [Content ID secret rules], Twitter

(Feb.

2020)

available

https://twitter.com/zoecello/status/1225497449

269284864 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Zoë Keating, What Should I Do About YouTube?

available at https://zoekeating.tumblr.com/

post/108898194009/what-should-i-do-aboutyoutube . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Letter of 1600 Artists and Songwriters, Securing a

sustainable future for the European music sector

(June 29, 2016) available at https://ifpi.org/

downloads/Recording_Artists_calling_for_a_So

lution_to_the_Value_Gap_Sept2016.pdf . . . . . . 22

Letter to Google CEO Sundar Pichai and YouTube

CEO Susan Wojcicki from Senators Thom Tillis,

Christopher Coons, Diane Feinstein and Marsha

Blackburn and Representatives Jerrold Nadler,

Doug Collins, Ben Cline and Martha Roby

(February 6, 2020) available at

https://musictechpolicy.files.wordpress.com/20

20/02/tilis-content-id-letter.pdf . . . . . . . . . . . . . 24

Pierre N. Leval, Toward a Fair Use Standard, 103

Harv. L. Rev. 1105 (1990). . . . . . . . . . . . . . . . . . . 7

Sir Paul McCartney, An Open Letter to the

European Parliament, IFPI (July 3, 2018),

available at https://ifpi.org/downloads/

European_Parliament_Support_Letter_July20

18.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Johnny Mercer and Gene De Paul, Li’l Abner (1956)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Matthew Moore, Google Funds Website the Spams

for its Causes, The Times of London (August 6,

2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mordor Intelligence, Music Publishing Market,

Growth Trends and Forecast 2020-2025 (2020),

available at https://www.mordorintelligence.

com/industry-reports/music-publishing-market . 9

Kerry Muzzey, [YouTube Delay Tactics with DMCA

Notices], Twitter (Feb. 13, 2020) available at

https://twitter.com/kerrymuzzey/status/122812

8311181578240 . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Nimmer on Copyright 13.05 . . . . . . . . . . . . . . . . . . 19

Roger Parloff, Google and Facebook’s New Tactic in

the Tech Wars, Fortune (July 30, 2012) available

at https://fortune.com/2012/07/30/google-andfacebooks-new-tactic-in-the-tech-wars/ . . . . . . . 15

Therese Poletti, The Market Says Alphabet Is Worth

$1 Trillion, But Figuring Out Google’s Real

Value is Tricky, MarketWatch (Jan. 18, 2020) . 20

Press Release, Google and YouTube Will Pay Record

$170 Million for Alleged Violations of Children’s

Privacy Law, Federal Trade Commission (Sept.

4, 2019) available at https://www.ftc.gov/newsevents/press-releases/2019/09/google-youtubewill-pay-record-170-million-alleged-violations . 21

Public Citizen, Mission Creepy (Nov. 2014),

available at https://www.citizen.org/wpcontent/uploads/google-political-spendingmission-creepy.pdf . . . . . . . . . . . . . . . . . . . . . . . 20

Nate Rau, Musical Middle Class Collapses, The

Tennessean (Jan. 3, 2015),

available at

https://www.tennessean.com/story/entertainme

nt/ music/2015/01/04/nashville-musical-middleclass-collapses-new-dylans/21236245/ . . . . . . . . . 5

Recording Industry Association of America, RIAA

2018 Year End Music Revenue Report

(Feb. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Schedule B, 2008 Form 990 Creative Commons

Corporation disclosing Google, Inc. contribution

of $1,500,000 available at https://web.archive.

org/web/20160208090558/http://www.ibiblio.or

g/cccr/docs/990B-2008.pdf . . . . . . . . . . . . . . . . . . 15

Adam Sherwin, David Cameron’s “Google-Model”

Vision for Copyright Under Fire, The Guardian

(March 14, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Michah Singleton, This Was Sony Music’s Contract

With Spotify, The Verge (May 19, 2015)

available at https://www.theverge.com/2015/5/

19/8621581/sony-music-spotify-contract . . . . . . . 8

Ben Sisario, Independent Music Labels Are in a

Battle with YouTube, N.Y. Times (May 24, 2014)

https://www.nytimes.com/2014/05/24/

business/media/independent-music-labels-are-ina-battle-with-youtube.html . . . . . . . . . . . . . 25, 26

Kit Smith, 54 Fascinating and Incredible YouTube

Statistics, Brandwatch (Jan. 17, 2020) available

at https://www.brandwatch. com/blog/youtubestats/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kurt Sutter, Kurt Sutter Slams Google, Argues for

DMCA Update, Rolling Stone (July 15, 2016)

available at https://www.rollingstone.com/music/

music-news/kurt-sutter-slams-google-argues-fordmca-update-97834/ . . . . . . . . . . . . . . . . . . . . . . 31

Jake Swearingen, Can Google Be More Than an

Advertising Company? New York Magazine

(Feb. 5, 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Jonathan Taplin, Do You Love Music? Silicon

Valley Doesn’t, L.A. Times (May 20, 2016) . . . . 26

The Scope of Fair Use: Hearing before the

Subcomm. on the Courts, Intellectual Property

and the Internet of the H. Comm. on the

Judiciary, 113th Cong. (Jan. 28, 2014)

(statement of David Lowery) . . . . . . . . . . . . . 2, 30

Adam Thierer and The Mercatus Center,

Permissionless Innovation and Public Policy: A

10 Point Program (2016). . . . . . . . . . . . . . . . . . . 22

xii

Titan Music Group LLC, The Austin Music Census

27 (Fig. 5) (June 1, 2015) available at

https://www.austintexas.gov/sites/default/files/

files/Austin_Music_Census_Interactive_PDF_5

3115.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

TuneCore, How to Sell Your Music Online, available

at https://www.tunecore.com/sell-your-musiconline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TWITTER (Feb. 19, 2019) available at

https://twitter.com/HelgaTruepel/status/10980

71632273301505 . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fred Von Lohmann, A Step Toward Protecting Fair

Use on YouTube, Google Policy Blog (Nov. 19,

2 0 1 5 )

a v a i l a b l e

a t

https://publicpolicy.googleblog.com/2015/11/astep-toward-protecting-fair-use-on.html?m=1. . 29

Patrick Wagner, Music Streaming: Who Pays Best?

Statistica (April 3, 2018) available at

https://www.statista.com/chart/13407/musicstreaming_-who-pays-best/. . . . . . . . . . . . . . . . . 11

YouTube Help, Copyright Strikes Basics, available

a t https://support.google.com/y out ub e/

answer/2814000?hl=en . . . . . . . . . . . . . . . . . . . . 27

YouTube Help, YouTube Partner Earnings

Overview available at https://support.google.com/

youtube/ answer/72902?hl=en . . . . . . . . . . . . . . 12

YouTube, How Content ID Works available at

https://support.google.com/youtube/answer/279

7370?hl=en-GB . . . . . . . . . . . . . . . . . . . . . . . . . . 24

xiii

YouTube’s Fair Use Protection, YouTube About,

available at https://www.youtube.com/about/

INTERESTS OF AMICI CURIAE1

Amici curiae Helienne Lindvall, David Lowery and

Blake Morgan are professional songwriters, recording

and performing artists, label owners, and leaders of

organizations who support strong and fair protection of

intellectual property and privacy rights as well as fair

compensation for violation of those rights. In addition

to their creative activities, amici are educators as well

as regular commentators on public policy.

Ms. Lindvall is an award-winning professional

songwriter, musician and columnist. She is Chair of the

Songwriter Committee & Board Director, Ivors

Academy of Music Creators (formerly British Academy

of Songwriters, Composers & Authors BASCA) and

chairs the esteemed Ivor Novello Awards. She also

writes the Guardian music industry columns Behind

the Music and Plugged In and has contributed to a

variety of publications and broadcasts discussing

songwriters’ rights, copyright and other music industry

issues.

Mr. Lowery is the founder of the musical groups

Cracker and Camper Van Beethoven and is a lecturer

at the University of Georgia Terry College of Business.

He has testified before Congress on the topic of fair use

policy and is a frequent commentator on copyright

Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in any part or made a monetary

contribution intended to fund preparation or submission of the

brief, and no person other than the amici curiae, its members, or

its counsel, made such a monetary contribution. All parties have

provided general written consent to the filing of this brief pursuant

to Supreme Court Rule 37.3(a).

policy and artist rights in a variety of outlets, including

his blog at TheTrichordist.com.2

Mr. Lowery and Camper Van Beethoven recorded

the 2003 album Tusk, a song-by-song parody of the

Fleetwood Mac Tusk album.

Mr. Morgan is an artist, songwriter, label owner,

and the leader of the IRespectMusic campaign, which

in partnership with songwriters focuses on supporting

fair payment for use and play of artists’ music across

all mediums and platforms.3 Mr. Morgan also lectures

on artists’ rights at music, business and law schools

across the United States.

Amicus Songwriters Guild of America, Inc. (SGA) is

the longest-established and largest songwriter

advocacy and copyright administrative organization in

the United States run solely by and for songwriters,

composers and other music creators, as well as their

heirs. It is registered as a non-profit corporation in the

state of Tennessee pursuant to the Tennessee NonProfit Corporation Act. SGA has not applied to the

Internal Revenue Service for recognition of exemption

as an organization described in Section 501(c)(3) of the

Internal Revenue Code. Founded in 1931, SGA’s

organizational membership today stands at

approximately 4,500 members, and through its

affiliations with both Music Creators North America,

See The Scope of Fair Use: Hearing before the Subcomm. on the

Courts, Intellectual Property and the Internet of the H. Comm. on

the Judiciary, 113th Cong. (Jan. 28, 2014) (statement of David

Lowery) [hereinafter Scope of Fair Use].

See I Respect Music, available at https://www.irespectmusic.org.

Inc. (MCNA) (of which it is a founding member) and

the International Council of Music Creators (CIAM) (of

which MCNA is a key Continental Alliance Member),

SGA is part of a global coalition of music creators and

heirs numbering in the millions. SGA is also a founding

member of the international organization Fair Trade

Music, which is the leading U.S. and international

advocacy group for the principles of transparency,

equitable treatment, and financial sustainability for all

songwriters and composers.

Amici express no opinion on the first question on

which this Court granted certiorari and limit

themselves to issues arising out of the second question.

SUMMARY OF ARGUMENT

Independent creators rely on copyright protection to

safeguard their works. This is true not just of

songwriters and composers, but of countless creators,

including recording artists, photographers, filmmakers,

visual artists, and software developers. Copyright is,

in fact, of existential importance to such creators, who

would be utterly lacking in market power and the

ability to earn their livings without it.

Google’s business model is a prime example of the

need for strong copyright protection. Since Google’s

founding, Amici have experienced, observed and believe

that Google has used its unprecedented online footprint

to dictate the terms of the market for creative works.

By tying together a set of limited exceptions and

exclusions within the U.S. Copyright Act and analogous

laws in other countries, and then advocating for the

radical expansion of those exceptions, Google has

amplified its own market power to the great detriment

of copyright owners. Thus, where fair use is meant to

be a limited defense to infringement founded on the

cultural and economic good for both creators and the

public, Google has throttled it into a business model:

what its amicus brazenly refers to as the bedrock on

which rests the fictitious “fair use industries.”

There is no shortage of amici exhorting this Court

to weigh carefully the implications of this case’s fair

use issues, and their resolutions. Amici today simply

join the chorus of those seeking to illustrate Google’s

longstanding pattern of integrating willful copyright

infringement into its business model. Google does so,

as it did here, by advocating for fair use exceptions so

broad as to include its wholesale, verbatim copying of

Oracle’s declaring code and structure without a license.

Google’s flagrant disregard of original expression in

order to make a larger profit—by taking without

authority the works belonging to others—compromises

any argument that its use is non-commercial,

transformative, or in any sense “fair.”

Accordingly, the Federal Circuit was correct in

finding that the nature and purpose of Google’s

unlicensed use of Oracle’s code and program

organization was to create a commercial substitute in

the form of Android. It is abundantly clear that this

unauthorized substitution is not in the public interest.

Here, Google’s claim to be, “promoting software

innovation” is just a code word for promoting Google’s

interest in extracting higher profit margins out of the

pockets of creators. Given that its interest in doing so

is antithetical to incentives to create original works,

finding fair use would clearly not serve the

constitutional and statutory purposes of copyright.

ARGUMENT

INDEPENDENT

ARTISTS

AND

SONGWRITERS RELY ON COPYRIGHT

PROTECTION AND CLEAR FAIR USE

STANDARDS TO DEFEND THEMSELVES

IN THE MARKET.

creators and artists. It is not empty rhetoric to say that

without the statutory and constitutional protections of

livings and simply would not produce new works, and

the world would be poorer for it.4 The reason is simple

but profound: copyright protection allows for a vibrant

creative environment in which artists can predictably

recover the gains of their creative labors. See U.S.

Const. Art. I, § 8, cl. 8; see also Harper & Row

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558

Songwriters have only just begun to recover from a generation of

losses due to music piracy and expansive interpretations of

Collapses, The Tennessean (Jan. 3, 2015) (“Since 2000, the number

of full-time songwriters in Nashville has fallen by 80 percent.”)

available at https://www.tennessean.com/story/entertainment/

music/2015/01/04/nashville-musical-middle-class-collapses-newdylans/21236245/. The Copyright Royalty Judges have taken note

of the need for higher statutory mechanical rates. See

Determination of Royalty Rates and Terms for Making and

Distributing Phonorecords (Phonorecords III), 84 Fed. Reg. 1918,

1957 (Feb. 5, 2019) (“[T]he Judges find that the evidence in this

proceeding supports a conclusion that the…decline in songwriter

income…has led to fewer songwriters.”).

(1985) (“By establishing a marketable right to the use of

one’s expression, copyright supplies the economic

incentive to create and disseminate ideas.”). Because

Congress has codified this incentive structure through

centuries of copyright legislation, independent artists

and songwriters regularly rely on the exercise of their

exclusive rights by creating, reproducing, distributing

and publicly performing their works.

Importantly, these rights are not just abstractions.

They tangibly alter the licensing negotiations vital to a

modern creative ecosystem. An exclusive right to exploit

a creative work (such as a musical composition or a

sound recording) can be the only backstop against

markets where the marginal cost to digitally create

perfect copies of an original is nil. See Metro-GoldwynMayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928

(2005) (noting “digital distribution of copyrighted

material threatens copyright holders as never before,

because every copy is identical to the original [and]

copying is easy”). These burdens do not fall solely on

creators of sound recordings or musical compositions, but

extend across copyrightable subject matter, including

visual arts, motion pictures, and literary works such as

novels or software. See 17 U.S.C. §§ 101, 102(a).

To be sure, independent creators may also benefit

from uses that fall under the category of fair use. Fair

use helps disseminate the artist’s work to the larger

culture, and increases the amplitude and quality of

discourse within and surrounding the work—all

without compromising the work’s value. See Campbell

v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994)

(noting fair use must be analyzed “in light of the

purposes of copyright”); Pierre N. Leval, Toward a Fair

Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990).

(“[f]air use should be perceived . . . as a rational,

integral part of copyright, whose observance is

necessary to achieve the objectives of that law.”). It is

therefore not surprising that a significant number of

fair use cases arise in the music business. See, e.g.,

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994);

Estate of Smith v. Graham, No. 19-28 (2d Cir. Feb. 3,

2020); Capitol Records, LLC v. ReDigi Inc., No. 16-2321

(2d Cir. Dec. 12, 2018); Lennon v. Premise Media Corp.,

556 F. Supp. 2d 310 (S.D.N.Y. 2008); Fisher v. Dees,

794 F.2d 432 (9th Cir. 1986); Elsmere Music, Inc. v.

Nat’l Broad. Co., 482 F. Supp. 741 (S.D.N.Y.), aff’d, 632

F.2d 252 (2d Cir. 1980).

Yet these fair use benefits only accrue when the

analysis is predictable, consistent, and respectful of the

underlying existing copyright incentives for original

creation. Under such market conditions, independent

creators nearly always stand ready to license their

works at a fair market rate to those who respect their

rights. This is how fair use works effectively within the

creative industries. On the other hand, the more

amorphous and unreasonably expansive the analysis

and application of the fair use doctrine, the harder it

becomes to establish the value of the copyrighted work

during licensing negotiations that are the lifeblood of

the creative ecosystem.

In the modern music business, such licensing

negotiations are intricate and delicate. The exclusive

rights guaranteed by the U.S. Copyright Act have

allowed independent songwriters, recording artists and

labels to contract with distributors such as Audiam, CD

Baby, INgrooves, Merlin Network, The Orchard and

TuneCore. These aggregators in turn sublicense

collectively to interactive, on-demand digital delivery

services like Amazon Music, Apple Music, Deezer,

iTunes, Google Play Music, Pandora, and Spotify in

return for royalties that the aggregators pay to their

songwriter or artist licensees.5

SoundExchange, for example, administers the

limited statutory performance license for

noninteractive exploitations of sound recordings. See

17 U.S.C. § 114. Through this statutory scheme,

SoundExchange oversees the statutory license of sound

recordings used by many noninteractive services such

as Pandora, SiriusXM, iHeart Radio and other Internet

radio services as well as business establishments.

Meanwhile, performing rights organizations like

ASCAP, BMI, Global Music Rights and SESAC

collectively license the public performance of the

corresponding compositions.

See, e.g., TuneCore, How to Sell Your Music Online, available at

https://www.tunecore.com/sell-your-music-online (overview of

TuneCore’s commercial process which is representative in the

industry). In some cases, aggregators also handle exploitations of

the exclusive rights for physical distribution of compact disc and

vinyl media. The biggest difference between independents

licensing through aggregators and majors licensing directly is that

majors typically receive multimillion dollar minimum guarantees

and other benefits that are confidential but occasionally leak to the

public. See generally, Michah Singleton, This Was Sony Music’s

Contract With Spotify, The Verge (May 19, 2015) available at

https://www.theverge.com/2015/5/19/8621581/sony-music-spotifycontract (“Spotify paid Sony Music up to $42.5 million in

advances.”).

Artists and songwriters rely on this intricate

market system of licensing that is entirely based on the

exclusive rights of copyright owners and the

traditionally reasonable application of the fair use

doctrine. These market practices have, over the past

two decades, undergone a metamorphosis, as new

customs evolved in the digital age, emerging once again

into a predictable licensing landscape.6 The exclusive

rights that independents enjoy as copyright owners

allow them to compete with the licensing, distribution

and marketing operations of major labels and music

publishers—when those rights are respected.

And that is where Google’s seemingly perpetual

campaign for fair use expansion becomes a major

hindrance in the equitable and efficient functioning of

the marketplace.

Tim Ingham, SoundExchange Paid Out $908 Million to Artists

and Labels in 2019, Music Business Worldwide (Jan. 27, 2020);

ASCAP Distributes a Record $1.1 Billion in Royalties, Variety

(May 1, 2019) available at https://variety.com/2019/music/news/

ascap-distributes-a-record-1-1-billion-in-royalties-1203202183/#!;

Mordor Intelligence, Music Publishing Market, Growth Trends and

Forecast 2020-2025 (2020) (“The Music Publishing market was

valued at USD 4813.9 million in 2019 and is expected to reach

USD $7265.02 million by 2025, at a [Compound Annual Growth

Rate] of 7.1% over the forecast period 2020 – 2025”) available at

https://www.mordorintelligence.com/industry-reports/musicpublishing-market. But see a recent large study of 1,564

independent musicians sponsored by the City of Austin that

documented 44% of respondents stated digital music sales

“Contributes None” to their income. Titan Music Group LLC, The

Austin Music Census 27 (Fig. 5) (June 1, 2015) available at

https://www.austintexas.gov/sites/default/files/files/Austin_Musi

c_Census_Interactive_PDF_53115.pdf.

Google interacts with the music industry in a

variety of ways, but primarily through its YouTube

video platform.7 YouTube is by far the world’s most

popular music streaming service, with over 1.9 billion

registered users as of June 2018. It is much, much

larger than subscription-based services like Spotify

(with 160 million users) or Apple Music (with

45 million users). According to the International

Federation of the Phonographic Industry, nearly half of

all streaming users consume music on YouTube. It is

hard to be in the music business online and not do

business with YouTube.8

And in turn, music is a large part of YouTube’s

business. As of Jan 2020, 93% of the most-watched

videos were music videos.” Kit Smith, 54 Fascinating

and Incredible YouTube Statistics, Brandwatch

(Jan. 17, 2020) available at https://www.brandwatch.

com/blog/youtube-stats/; “47% of time spent listening to

on-demand music is on YouTube,” Music Consumer

Insight Report, International Federation of the

Phonographic Industry (IFPI) at 13 (2018). This

revenue accrues to Google’s great benefit, with its

YouTube is the second largest search platform and web site in the

world as scored by search ranking service Alexa (second to the

Google text search). Alexa, The Top 500 Sites on the Web,

available at https://www.alexa.com/topsites accessed Feb. 14, 2020.

Google’s search engine is its own “content discovery” operation

with links to infringing material at a mind-boggling scale. Google’s

Transparency Report shows the company has received over four

billion DMCA takedown notices for infringing material in Google

search alone. See Content Delistings Due to Copyright, Google

Transparency Report available at https://transparencyreport.

google.com/copyright/overview.

parent company Alphabet reporting more than $15

billion in revenue from YouTube last year alone.9

Unfortunately, despite YouTube’s market success,

revenue does not proportionately flow back to copyright

owners. In the aggregate, advertising-supported free

streaming services (of which YouTube is by far the

largest) contributed one-third of all streams in 2018,

but only 8% of total revenue. See Recording Industry

Association of America, RIAA 2018 Year End Music

Revenue Report (Feb. 2019). YouTube’s royalty rates

are consistently lowest among the top digital music

services.10

In fairness, Google does contract with aggregators

representing independents to collect YouTube royalties,

such as Audiam.

However, in Amici’s experience, YouTube is the

primary music service that actually incorporates an ad

hoc and arbitrary exploitation of copyright safe harbors

and exceptions like fair use as a part of its largely

advertising-supported business model which is

grounded substantially on “user-generated content” or

“UGC.”

See Rob Copeland, Google Parent Debuts YouTube, Cloud Results,

Reports Weak Earnings, Wall Street J. (Feb. 3, 2020) available at

https://www.wsj.com/articles/google-parent-posts-disappointingearnings-but-discloses-new-youtube-cloud-details-11580765421

Patrick Wagner, Music Streaming: Who Pays Best? Statistica

(April 3, 2018) available at https://www.statista.com/chart/

13407/music-streaming_-who-pays-best/ (YouTube’s average perstream rate is estimated at $0.00074.)

Therefore, YouTube is incentivized to unfairly

attempt over and again to utilize narrow, statutory

exceptions to copyright protection, including the fair

use doctrine, on a seemingly ad hoc and extremely

expansive basis to undermine the very protections that

creators rely on. This unpredictable fiat guides

YouTube’s partners toward monetizing their

UGC—which generates a reward of revenue that

YouTube shares with the partner.11

Google’s

exploitation of fair use as a business significantly

increases the transaction cost of dealing with YouTube

beyond what independents like Amici can reasonably

afford. It sure costs a lot of money to give things away

for free.

This is particularly true since independents cannot

credibly use litigation as leverage12 against a

See YouTube Help, YouTube Partner Earnings Overview

available at https://support.google.com/youtube/

answer/72902?hl=en (“The YouTube Partner Program lets creators

monetize their content on YouTube. Creators can earn money from

advertisements served on their videos and from YouTube Premium

subscribers watching their content.”)

This disparity may be ameliorated if a copyright small claims

tribunal comes into effect such as in the CASE Act. As of this

writing, that legislation has passed the House of Representatives

as the Copyright Alternative in Small Claims Enforcement Act

(H.R. 2426, S. 1273 116th Cong. 1st Sess.) and is currently pending

in the Senate due to a legislative hold placed on the Senate bill by

Senator Wyden. See, e.g., Amer. Bar Assn., Intellectual Property

Law Section Litigation Section, Report to the House of Delegates,

Resolution 110A (2019) at 1 (supporting a Copyright Small Claims

Program). (“Copyright owners with small infringement claims

essentially have a right without a remedy. The cost of bringing a

federal lawsuit significantly outstrips the value of their claims,

and they cannot resort to state courts, since they can pursue

commercial giant. Examples of these costs include

engaging services to identify infringements and send

takedown notices under the Digital Millennium

in search or on YouTube,13 or analyzing fair use claims

in counternotifications. See 17 U.S.C. §§ 512(c)(1)(C),

512(g). Nor are these costs common across other adsupported digital music services. For example, Amici

do not bear these high transaction costs with other adsupported digital music services such Spotify’s free

version.

infringements of their work.”).

See, e.g., Kerry Muzzey, [YouTube Delay Tactics with DMCA

N o tice s] , Tw itte r ( Fe b. 13, 2020) av ailable at

https://twitter.com/kerrymuzzey/status/1228128311181578240

(Film composer with Content ID account notes “I have a takedown

pending against a heavily-monetized YouTube channel w/a music

asset that’s been fine & in use for 7 yrs & 6 days. Suddenly today,

in making this takedown, YT decides “there’s a problem w/my

metadata on this piece.” There’s no problem w/my metadata tho.

This is the exact same delay tactic they threw in my way every

single time I applied takedowns against broadcast networks

w/monetized YT channels….And I attached a copy of my copyright

registration as proof that it’s just fine.”); Zoë Keating, [Content ID

secret rules], Twitter (Feb. 6. 2020) available at

https://twitter.com/zoecello/status/1225497449269284864

(Independent artist with Content ID account states “[YouTube’s

Content ID] doesn’t find every video, or maybe it does but then it

has selective, secret rules about what it ultimately claims for

me.”).

It appears to Amici that Google’s business model,

both with YouTube and with its verbatim copying in

Android, are prime examples of what one of Google’s

amici has repeatedly proclaimed to be the “fair use

industries.”14

Amici—like most creators—do not think of fair use

as the basis for an “industry” whose “rights” can be

asserted separately from authorship furthered by

reliable rules of copyright protection and narrow

exceptions under individualized, special circumstances.

If fair use were an “industry,” Amici would be rendered

into both the unlicensed input and the royalty-free

output of that economic sector, destroying the market

balance that has developed under copyright regimes

over a period of centuries. Rather, fair use is a

statutory defense that permits creators to use

copyrighted materials for well-defined and generally

noncommercial or noncompeting purposes. Without

notion of “fair use industries” and its protection is a

non-sequitur. At worst, it is a destroyer of markets and

eventually of national cultures.15

In short, the “fair use industries” spin is Google’s

attempt to invent cover for its extremely predatory

market practices against creators. Amici are concerned

See, e.g., Computer & Communications Industry Association,

Fair Use In The Economy: Economic Contribution of Industries

Relying on Fair Use (2017), available at

https://www.ccianet.org/wp-content/uploads/2017/06/Fair-Use-inthe-U.S.-Economy-2017.pdf.

See generally, Jean-Noël Jeanneney, Google and the Myth of

Universal Knowledge: A View from Europe (2007).

that “fair use industries” are merely those markets in

which Google’s monopoly power permits it to simply

ignore the copyright interests of other market actors

(including and especially independent creators) and

call its conduct fair use, safe in the knowledge that

challenging Google in court is a nonstarter for most

independents. This spin is bolstered through funding

academic research16 as well as outright lobbying and

strategic litigation17 that consistently weakens

See, e.g., “Google pledges $2 million to support [Stanford] Law

School center” Stanford Report (December 6, 2006) available at

https://news.stanford.edu/news/2006/december6/google120606.html (Google funds Stanford Center for Internet and

Society); Schedule B, 2008 Form 990 Creative Commons

Corporation disclosing Google, Inc. contribution of $1,500,000

available at https://web.archive.org/web/20160208090558/

http://www.ibiblio.org/cccr/docs/990B-2008.pdf; David Dayen,

Google’s insidious shadow lobbying: How the Internet giant is

bankrolling friendly academics—and skirting federal

investigations, Salon (Nov. 15, 2015) available at https://www.

salon.com/test/2015/11/24/googles_insidious_shadow_lobbying_h

ow_the_internet_giant_is_bankrolling_friendly_academics_and_

skirting_federal_investigations/ (“From the beginning of the FTC

investigation through the end of 2013, Google gave George Mason

University’s Law and Economics Center (LEC) $762,000 in

donations, confirmed by cancelled checks obtained in a public

records request. In exchange, the LEC issued numerous studies

supporting Google’s position that they committed no legal

violations, and hosted conferences on the same issues where

Google representatives suggested speakers and invitees.”).

See, e.g., Roger Parloff, Google and Facebook’s New Tactic in the

Tech Wars, Fortune (July 30, 2012) available at https://fortune.

com/2012/07/30/google-and-facebooks-new-tactic-in-the-tech-wars/

(“If the Electronic Frontier Foundation, the nation’s preeminent

digital rights nonprofit, had disclosed last year that it received a

cool $1 million [cy pres] gift from Google — about 17% of its total

revenue — some eyebrows might have been raised.”).

amici in this appeal include individuals paid by or

otherwise associated with Google. See Br. of 83

Computer Scientists at A1 n.1.

In fact, Google reportedly said as much to former

Prime Minister David Cameron when lobbying him in

2011 to amend UK copyright laws to remove “barriers

to new internet-based business models” raised by the

“costs of obtaining permissions from existing rightsholders.” Adam Sherwin, David Cameron’s “GoogleModel” Vision for Copyright Under Fire, The Guardian

(March 14, 2011) (“[Prime Minister Cameron’s

announcement] was greeted with unalloyed delight at

Google’s California HQ—and left the music industry,

ravaged by web piracy, with that all too familiar

sinking feeling.”).

Of course, Google’s responses are essentially the

same each time—as they are here. Google wields a

variety of weaponized copyright exceptions on top of

rhetoric that is both deceptively public-spirited (letting

Google win is “promoting innovation”) and ominous

(impeding Google would “break the internet”). Google

further seeks to justify these exceptions by trying to

hide behind small players.18 It engages in astroturfing

Several years ago, the Copyright Office held a roundtable

considering uses of “orphan works” (works of unknown provenance

with likely infrequent and de minimis uses).

Google’s

representative laid its cards on the table, stating, “I would

encourage the Copyright Office to consider not just the very, very

small scale, the one user who wants to make use of the work, but

also the very, very large scale and talking in the millions of works.”

(statement of Alexander Macgillivray of Google) (emphasis added),

tactics to give the impression that it has more public

support than it does.19

All of this is on display in Google’s brief and its

many amicus briefs. See, e.g., Pet. Br. 44 (“Android is

an open source initiative that benefits hundreds of

device manufacturers, millions of developers, and more

than a billion consumers around the world.”), 45

(Android “enabled Java developers to unleash their

creativity” by using Google’s platform), 49 (“Android

benefitted Oracle”); 50 (finding against Google “would

disrupt the ingoing development of modern,

interoperable computer software”).

II.

GOOGLE’S

USE

COMMERCIAL.

CLEARLY

Against this backdrop, Amici agree wholeheartedly

with the Federal Circuit that “the fact that Android is

free of charge does not make Google’s use of the Java

API packages noncommercial.” Oracle Am., Inc. v.

Google, LLC, 886 F.3d 1179, 1197 (Fed. Cir. 2018)

available at https://www.copyright.gov/orphan/transcript/

0726LOC.PDF.

See Matthew Moore, Google Funds Website the Spams for its

Causes, The Times of London (August 6, 2018) (“Google is helping

to fund a website that encourages people to spam politicians and

newspapers with automated messages backing its policy goals[,]

intended to amplify the extent of public support for policies that

benefit Silicon Valley[.]”); Former Member of the European

Parliament Helga Truepel tweeted about her experience in the

European Copyright Directive that “[c]opyright lawyers of

@Facebook and @Google told me last September in #SiliconValley

that they will interfere in European lawmaking. And they did.”

TWITTER (Feb. 19, 2019) available at https://twitter.com/Helga

Truepel/status/1098071632273301505.

(“Oracle II”). In arriving at this conclusion, the Federal

Circuit cited evidence that Google generated over $42

billion from Android through advertising. Id. at 1187,

1197.

Google concedes that its creation of Android was “a

commercial endeavor,” but argues more amorphously

that its copying of Oracle’s code and organization

served the noncommercial purpose of “promoting

software innovation.” Pet. Br. at 43-44. Likewise,

Google’s amici argue that because Android was offered

to consumers for free, its copyright cannot be

commercial. See Copyright Scholars Br. At 12.

Yet contrary to the views of Google’s amici, the

Federal Circuit properly found that Google’s use was

commercial and properly weighed such a commerciality

finding in the fair use inquiry. Just because Google did

not sell Android to consumers does not mean its

copying did constitute commercial use. In fact, the $42

billion figure cited by the Federal Circuit is likely only

the tip of the iceberg.

A. Google’s Market Dominance Lowers the

“Customary Price” of Copyrighted

Works.

As this Court stated in Harper & Row, whether a

use is commercial “is not whether the sole motive of the

use is monetary gain but whether the user stands to

profit from exploitation of the copyrighted material

without paying the customary price.” 471 U.S. at 562

(emphasis added). In other words, a commercial use

is found where a defendant is “[g]iving customers for

free something they would ordinarily have to buy.”

Oracle II, 886 F.3d at 1197 (quoting A&M Records, Inc.

v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001)).

The Federal Circuit is in accord with the other

Courts of Appeals that have considered this

proposition. See, e.g., Soc’y of Holy Transfiguration

Monastery, Inc. v. Gregory, 689 F.3d 29, 61 (2d Cir.

2012) (“‘Profit,’ in this context, is thus not limited

simply to dollars and coins; instead, it encompasses

other non-monetary calculable benefits or

advantages.”); Weissmann v. Freeman, 868 F.2d 1313,

1324 (2d Cir. 1989) (factor one disfavored use where

professor’s benefit in academic prestige and recognition

was “ill-measured in dollars”); A&M Records, 239 F.3d

at 1015 (“Direct economic benefit is not required to

demonstrate a commercial use.”); see generally Nimmer

on Copyright 13.05 (“Commercial uses’ are extremely

broad.”).

Here, there should be no question that the purpose

of offering a mobile platform was commercial in nature:

Google simply wanted to maintain its ad sales

dominance. See Oracle II, 886 F.3d at 1210.

One thing that content creators have grown to

understand is that Google is not a tech company—it is

an advertising company. When one sees this, all is

revealed. See Jake Swearingen, Can Google Be More

Than an Advertising Company? New York Magazine

(Feb. 5, 2019) (“Of the $39 billion [Google’s parent

Alphabet] brought in [during Q4 2018], $32.6 billion of

it was in advertising revenue — that’s 83 percent of its

total revenue.”). Google has become enormously

successful, though not always transparently.20

Moreover, Google dominates the market for online

advertising, with disturbing implications for privacy.21

As is well-known by now, Google extracts value

from its users through selling advertising on works

that Google makes available at no charge to the user,

and through scraping user data in the background that

Google then adds to its ballooning behavioral

knowledge database through highly complex user

profiling.22

Google extracts this value by selling

targeted advertising, often in connection with verbatim

copies of works generally offered for free to users on

See Therese Poletti, The Market Says Alphabet Is Worth $1

Trillion, But Figuring Out Google’s Real Value is Tricky,

MarketWatch (Jan. 18, 2020) (“Even Google’s most well-known

business outside of its core search engine, YouTube, has never had

its financial performance detailed by the company, even after the

Securities and Exchange Commission asked for it.”).

See Public Citizen, Mission Creepy, at 1 (Nov. 2014) (“Google

may possess more information about more people than any entity

in the history of the world.”), available at

https://www.citizen.org/wp-content/uploads/google-politicalspending-mission-creepy.pdf.

See Jeff Gould, The Natural History of Gmail Data Mining,

Medium

(June

24,

2014),

available

https://medium.com/@jeffgould/the-natural-history-of-gmail-datamining-be115d196b10 (noting internal Google documents

discussing use of Gmail to scrape user data in the background and

classify users into “millions of buckets”).

YouTube.23 There are untold riches in running the

internet of other people’s things.

The reason is this: free is critical to Google’s model,

which depends on the en masse exploitation of

copyrighted content. This business model is the sort

that this Court has analyzed as commercial:

[Defendants] make money by selling

advertising space, by directing ads to the screens

of computers employing their software. As the

record shows, the more the software is used, the

more ads are sent out and the greater the

advertising revenue becomes. Since the extent of

the software’s use determines the gain to the

distributors, the commercial sense of their

enterprise turns on high-volume use, which the

record shows is infringing.

See Grokster, 545 U.S. at 940. Likewise, Google’s

business model enables staggering profits with little to

no direct commercial transactions between it and the

end-user, particularly on YouTube.

See Jason

Artists and songwriters have no control over Google’s advertising

practices, such as using music as a honeypot to illegally target

children. See, e.g., Press Release, Google and YouTube Will Pay

Record $170 Million for Alleged Violations of Children’s Privacy

Law, Federal Trade Commission (Sept. 4, 2019) available at

https://www.ftc.gov/news-events/press-releases/2019/09/googleyoutube-will-pay-record-170-million-alleged-violations (“‘YouTube

touted its popularity with children to prospective corporate clients,’

said FTC Chairman Joe Simons. ‘Yet when it came to complying

with COPPA, the company refused to acknowledge that portions

of its platform were clearly directed to kids. There’s no excuse for

YouTube’s violations of the law.’”).

Fitzpatrick, If You’re Not Paying for It; You’re the

Product, Lifehacker (Nov. 23, 2010).

Google’s evangelists have even coined a term to

describe such takings: “permissionless innovation.”

See Adam Thierer and The Mercatus Center,

Permissionless Innovation and Public Policy: A 10

Point Program at 12 (2016). Vinton G. Cerf, Keep the

Internet Open, N.Y. Times (May 24, 2012)

https://www.nytimes.com/2012/05/25/opinion/keep-theinternet-open.html.

Yet “permissionless innovation” is just another term

for what polite creators call the underpinning of the

infamous “value gap” currently plaguing the global

community of music creators and artists. In fact, the

disparity between artists’ royalties and Google’s

enormous ad-based music distribution profits off of

their music has become its own market phenomenon24

Songwriter Sir Paul McCartney defined the “value gap” as “that

gulf between the value [platforms like Google] derive from music

and the value they pay creators.” Sir Paul McCartney, An Open

Letter to the European Parliament, IFPI (July 3, 2018), available

at http s://if p i . o r g / d o w n l o a d s / E u r o p e a n _ P a r liame nt_

Support_Letter_July2018.pdf; see also Debbie Harry, Musicians

Like Me Need to Fight Against the Giants of YouTube and Google,

The Guardian (Mar. 22, 2019) available at

https://www.theguardian.com/commentisfree/2019/mar/22/music

ian-shocked-opposition-eu-copyright-law-youtube-debbie-harryblondie; International Federation of the Phonographic Industries,

available at https://ifpi.org/value_gap.php (landing page for

campaigners against value gap); Letter of 1600 Artists and

Songwriters, Securing a sustainable future for the European music

sector (June 29, 2016) available at https://ifpi.org/downloads/

Recording_Artists_calling_for_a_Solution_to_the_Value_Gap_Se

pt2016.pdf (“This is a pivotal moment for music.[]But the future is

and largely led to the adoption of the European

the devastating value gap by requiring Google to

operate on a more level playing field for creators.

In order to achieve and maintain permissionless

innovation in the United States, accused infringers in

contrast continue to lean on burden-shifting regimes

like the DMCA safe harbors to impose the costs of

policing infringement onto copyright owners while

giving Google leverage in licensing negotiations.

From a copyright perspective, permissionless

innovation relies on a system of risk shifting safe

harbors and forces artists into an unsustainable game

of whack-a-mole to which Google’s amorphous

interpretation of fair use is tightly bound.

Google leverages this commercial windfall into

exerting dominance at scale.26 For example, while

jeopardised by a substantial “value gap” caused by user upload

services such as Google’s YouTube that are unfairly siphoning

value away from the music community and its artists and

songwriters.”)

Directive (EU) 2019/790 of the European Parliament and of the

Digital Single Market (amending Directives 96/9/EC and

2001/29/EC), 62 Off. J. Euro. Union. L130 (May 17, 2019).

Google uses the tactic against major labels as well as

independents. See Jordan Kahn, Major record labels again

complain of unfair YouTube deals as contracts set to expire,

9to5Google (April 11, 2016) available at https://9to5google.com/

2016/04/11/record-labels-youtube-riaa-royalities-complaint/

(quoting then RIAA head Cary Sherman: ‘The way the [Google]

negotiation goes is something like this: ‘Look. This is all we can

afford to pay you,’ YouTube says. ‘We hope that you’ll find that

Google makes much of the purported (and

unsubstantiated) “lock in” effect that would result from

Oracle’s vindication of its copyrights, see Pet. Br. 40,

Google itself locks in creators to coerce their agreement

to commercial deals with YouTube.27 For example and

as further discussed below, contracting with YouTube’s

subscription service was a condition of access to

YouTube’s infamous Content ID system28 a linkage that

continues to draw scrutiny.29

reasonable. But that’s the best we can do. And if you don’t want to

give us a license, okay. You know that your music is still going to

be up on the service anyway. So send us notices, and we’ll take ’em

down as fast we can, and we know they’ll keep coming back up.’”).

Google reserves YouTube DRM for partners only, Reuters (Feb.

19, 2007) https://www.alphr.com/news/internet/105118/googlereserves-youtube-drm-for-partners-only.

See generally YouTube, How Content ID Works available at

https://support.google.com/youtube/answer/2797370?hl=en-GB

(“YouTube only grants Content ID to copyright owners who meet

specific criteria. To be approved, they must own exclusive rights to

a substantial body of original material that is frequently uploaded

by the YouTube creator community…. If accepted to use Content

ID, copyright owners will be required to complete an agreement

explicitly stating that only content with exclusive rights can be

used as references.”).

Google’s practices with Content ID have drawn the attention of

Congress. See Letter to Google CEO Sundar Pichai and YouTube

CEO Susan Wojcicki from Senators Thom Tillis, Christopher Coons,

Diane Feinstein and Marsha Blackburn and Representatives

Jerrold Nadler, Doug Collins, Ben Cline and Martha Roby

(February 6, 2020) available at https://musictechpolicy.

files.wordpress.com/2020/02/tilis-content-id-letter.pdf (“[We have

heard] examples of creators whom you seemed to agree were

wrongly denied access to Content ID…Have you considered making

Content ID more widely available and publishing the

eligibility…criteria to be approved to use Content ID?”)

Any revenue that copyright owners receive, then,

must price in the transaction costs of dealing with

Google’s unpredictable policies. The aggregate revenue

from Google after deducting transaction costs is a long

way from a “customary price.”

B. Google Benefits Commercially from

Weaker Copyright Protection.

Amici, as creators in the digital age, are largely

beholden to the whims of distributors. As romantic the

notion is of solitary artists laboring over their works,

the fact remains that they will ultimately need to

distribute their creative expression. That means going

through Google far more often than not.

Artists like Amici have a tense relationship with

Google and its subsidiaries. On the one hand, Google

controls access to the market directly or indirectly. On

the other hand, Google has consistently abused or

outright ignored copyright when it comes to

interactions with creators and their intellectual

property.

For example, when YouTube rolled out its

subscription service, it reportedly warned independent

artists and labels that if they refused YouTube’s

licensing terms, their music would be blocked on

YouTube’s free service, and YouTube would keep any

advertising revenue. Ben Sisario, Independent Music

Labels Are in a Battle with YouTube, N.Y. Times

(May 24, 2014) https://www.nytimes.com/2014/05/24/

business/media/independent-music-labels-are-in-abattle-with-youtube.html.30

In Amici’s experience, Google has a long history of

leveraging copyright exceptions for its enormous profit

at creators’ expense. Through YouTube, Google profits

directly from verbatim copies of Amici’s own works.

These copies are often unauthorized, unlicensed, and

severely undermonetized. See Jonathan Taplin, Do

You Love Music? Silicon Valley Doesn’t, L.A. Times

(May 20, 2016).

Google is able to artificially lower the floor for the

market for music and other copyrighted works by

strategically leveraging a variety of copyright

exceptions and loopholes across all of its platforms,

particularly YouTube and search.

As discussed above, in order to maximize user

engagement with its ads, Google needs a constant

influx of creative content. Copyright is treated as an

imposition, and Google avoids liability through an

See Zoë Keating, What Should I Do About YouTube? available at

https://zoekeating.tumblr.com/post/108898194009/what-should-ido-about-youtube (“My Google Youtube rep contacted me the other

day. They were nice and took time to explain everything clearly to

me, but the message was firm: I have to decide. I need to sign on

to the new Youtube music services agreement or I will have my [ad

supported] Youtube channel blocked.”); Kevin Erickson, Zoë

Keating’s YouTube Dilemma, Future of Music Blog (Jan. 29, 2015)

available at https://futureofmusic.org/blog/2015/01/29/zoë-keatingsyoutube-dilemma-what-you-need-know (“The terms offered [to Zoë

Keating] by YouTube aren’t particularly surprising. That’s because

they seem to be essentially the same as the terms offered to

independent labels, which spurred outcry from indie trade groups

including WIN (World Independent Network) and inspired protests

outside Google offices.”).

abuse of exceptions such as the safe harbor provisions

in the Digital Millennium Copyright Act. See 17 U.S.C.

§ 512(a)–(d). Google frequently argues that these

provisions immunize Google from liability for

infringing content, while also making it very easy for

Google to restore content with the check of a box.31

Google has cobbled together a system of copyright

“strikes” based on DMCA notices received from

channels.32 With sufficient strikes, YouTube blocks

public access to the channel. The channel operator,

however, can easily restore content by filing a counternotification with YouTube often attesting without firm

legal grounds to a good faith belief that their

unauthorized use of the material is non-infringing.

Such an assertion frequently mimics Google’s general

assertions that the fair use doctrine is malleable

enough to accommodate any use no matter how

damaging, non-transformative, commercially based or

unnecessarily broad. See 17 U.S.C. § 512(g)(3)(C).

Assuming the copyright owner does not seek relief in

court—and very few do because of the prohibitive costs

A recent review of Google’s own Transparency Report shows the

company has received over 4 billion DMCA takedown notices.

Google Transparency Report https://transparencyreport.google.

com/copyright/overview.

See generally YouTube Help, Copyright Strikes Basics, available

at https://support.google.com/youtube/answer/2814000?hl=en

(“Submit a counter notification: If your video was mistakenly

removed because it was misidentified as infringing, or qualifies as

a potential fair use, you may wish to submit a counter notification.”

(emphasis added).).

and time required—then YouTube restores the content,

and Google has another video to monetize.

Thus, assertions of fair use (real or imagined) play

a critical role in this scheme, and therefore ultimately

Google’s advertising inventory. YouTube’s counternotification webform, in fact, arguably encourages a

channel operator to claim a good-faith belief that its

infringing video was fair use under the broadest of

circumstances. See Lenz v. Universal Music Corp., 801

F.3d 1126 (9th Cir. 2015).

These channel operators are rarely represented by

counsel, meaning their claims of fair use are more folk

wisdom and internet legend than law. Five-time

Grammy Award winner and independent composer and

band leader Maria Schneider gave an example of this

culture in comments to the Copyright Office:

As just one small example, just put in the

YouTube “search” bar the phrases “fair use” and

“full CD.” There are literally countless whole

albums digitally uploaded by users who state

that it is “fair use” (which it obviously isn’t).

YouTube knows there is infringement of epic

proportions broadly across its platform, and . . .

certainly makes it possible, and easier, for

infringement to occur.33

Coupled with its porous repeat infringer policy,

YouTube has leveraged counternotifications into a

broad-based fair use business strategy—truly an

Comments of Maria Schneider, Study on the Moral Rights of

attempt to fashion its non-existent “fair use industries”

entirely out of whole cloth.

Google overamplifies fair use in other ways. For

example, since 2015, YouTube has sponsored an

initiative to subsidize legal fees for certain fair use

cases that it decides are “some of the best examples of

fair use on YouTube by agreeing to defend them in

court if necessary.”34 YouTube announced that it

intended to “indemnify creators whose fair use videos

have been subject to takedown notices for up to

$1 million of legal costs in the event the takedown

results in a lawsuit for copyright infringement.”35

Google tells us “[they] believe even the small number of

videos [Google] are able to protect will make a positive

impact on the entire YouTube ecosystem, ensuring

YouTube remains a place where creativity and

expression can be rewarded.”36

The promise of Google’s million-dollar fair use

indemnity promotion effectively provides a faux license

against copyright liability without the consent of the

partners for fair use cases that Google judges worthy,

i.e., cases that promote Google’s private interests in

protecting and expanding YouTube’s advertising

Fred Von Lohmann, A Step Toward Protecting Fair Use on

YouTube, Google Policy Blog (Nov. 19, 2015) available at

https://publicpolicy.googleblog.com/2015/11/a-step-towardprotecting-fair-use-on.html?m=1

YouTube’s Fair Use Protection, YouTube About, available at

https://www.youtube.com/about/copyright/fair-use/#yt-copyrightprotection.

A Step Toward Protecting Fair Use on YouTube supra.

inventory. It is unclear which, if any, cases Google or

YouTube have taken on under this indemnity or what

the criteria would be because Google does not disclose

when or if they get involved. One can easily discern

through market behavior, however, that the threat

alone more than satisfies Google’s imputed aims to

dissuade creators from even attempting to enforce their

rights.

Moreover, Amici believe that Google’s fair use

expansion campaigns are designed to serve as a

honeypot for Google’s data scraping business model

that feeds its outsized profits from ads. Google

likewise seems to promote expansion of the fair use

doctrine as way to easily keep more videos on YouTube,

while providing material support to its partners that

allows them to outlast any songwriter or artist in the

game of whack-a-mole under its copyright strike

policies. No one is giving creators a shadowy milliondollar fund to defend against the misapplication of fair

use.

Amicus Mr. Lowery summed it up in his 2014

testimony to the House Judiciary Committee:

I am not concerned with parody, commentary,

criticism, documentary filmmakers, or research.

These are legitimate fair use categories. I am

concerned with the illegal copy that

masquerades as fair use, but is really just a

copy. This masquerade trivializes legitimate

fair use categories and creates conflict where

there need be none.

Scope of Fair Use at 22.

Unfortunately, Google manipulates fair use to

extract value by monetizing verbatim copies to the

great disadvantage of creators who can little afford to

fight back against the multi-national, trillion dollar

corporation, and usually do not.37 Thus, independents

are caught without leverage in cases that rarely get to

court.38

The end result is that even where its use is “free,”

Google’s interests are steadfastly commercial.

Accordingly, the Federal Circuit was correct in finding

that the nature and purpose of Google’s use was

entirely commercial in nature.

III.

GOOGLE’S PRIVATE INTERESTS ARE

NOT THE PUBLIC INTEREST.

The ultimate question in a fair use analysis is

“whether, and how powerfully, a finding of fair use

would serve or disserve the objectives of the copyright.”

Leval at 1110–1111; see also Harper & Row, 471 U.S.

at 546 (noting purpose of copyright is to give creators

“a fair return for their labors”). Google’s only response

See Joint Supplemental Comments of the American Association

Of Independent Music and Future Of Music Coalition In Response

To Request For Empirical Research at 5-6, In the Matter of Section

512 Study, U.S. Copyright Office (Docket No. 2015-7) (noting that

77% of surveyed companies that did not remove their music from

unauthorized services stated they lacked the resources to do so).

See, e.g., Kurt Sutter, Kurt Sutter Slams Google, Argues for

DMCA Update, Rolling Stone (July 15, 2016) available at

https://www.rollingstone.com/music/music-news/kurt-sutter-slamsgoogle-argues-for-dmca-update-97834/; Eriq Gardner, Irving Azoff

Threatens to Yank 20,000 Songs From YouTube, Hollywood

Reporter (Nov. 12, 2014) available at https://www.hollywood

reporter.com/thr-esq/irving-azoff-threatens-yank-20000-748631.

to whether its use furthers the public interest—i.e., in

promoting an effective system of copyright—is that

allowing it to copy verbatim Oracle’s declaring code and

structure would be “promoting software innovation.”

Such verbatim copying is a “facile use of the scissors.”

Folsom v. Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass 1841)

(Story, J.).

Yet what is good for Google is not synonymous with

what is good for the public—no more than “[w]hat’s

good for General Bullmoose is good for the USA.”

Johnny Mercer and Gene De Paul, Li’l Abner (1956).

In fact, a ruling for Google would be “promoting”

software innovation only in that the purported

“innovation” would be furthering Google’s private

interest—i.e., using works without permission or a

license fee.

This case again appears to be the latest in Google’s

long-term strategy to use its market dominance and

overwhelming commercial power to continually distort

market price of copyrighted works.

Google’s proposed outcome would be yet another

distortion. Were Google to prevail here, Amici expect

Google (and its proxies) to throw its full weight behind

such a ruling, far beyond the confines of its text. This

case would become another totemic faux license or safe

harbor that Google could use as a cudgel against

creators and copyright owners. Left unchecked,

eventually the copyright distortions they

seek—including in the case at bar—could nullify

fight back or fear retaliation for doing so. Under the

Google anti-copyright regime, exceptions would devour

the rules of protection in whole, digesting art and

culture along with them.

CONCLUSION

Amici respectfully suggest that the Court should

consider whether a decision in favor of Google would

merely “unleash” yet another weapon for Google’s

private benefit, and whether Google’s infringement of

Oracle’s declaring code and structure constitutes

“simple piracy” for which the company should most

certainly be held accountable.

This Court should affirm the decision of the Federal

Circuit below.

Respectfully submitted,

CHARLES J. SANDERS

Counsel of Record

29 KINGS GRANT WAY

BRIARCLIFF, NEW YORK 10510

(914) 366-6642

cjs@csanderslaw.com

CHRISTIAN CASTLE

CHRISTIAN L. CASTLE, ATTORNEYS

9600 GREAT HILLS TRAIL

SUITE 150W

AUSTIN, TEXAS 78759

(512) 420-2200

asst1@christiancastle.com

Counsel for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.