Oracle America, Inc. v. Google Inc., No. 3:2010cv03561 - Document 1780 (N.D. Cal. 2016)
Court Description: MEMORANDUM OPINION REJECTING "AS PART OF A BROADER WORK" AS GROUND FOR TRANSFORMATIVE. Signed by Judge William Alsup on 5/2/2016. (whasec, COURT STAFF) (Filed on 5/2/2016)
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Oracle America, Inc. v. Google Inc. Doc. 1780 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ORACLE AMERICA, INC., 11 For the Northern District of California United States District Court 10 12 13 14 Plaintiff, v. GOOGLE INC., Defendant. / 15 16 No. C 10-03561 WHA MEMORANDUM OPINION REJECTING “AS PART OF A BROADER WORK” AS GROUND FOR TRANSFORMATIVE Concerning fair use, Google asks for an instruction that “transformative” includes the 17 incorporation of copyrighted works “as part of a broader work.” Incorporating as part of a 18 broader work, however, simply cannot be enough to qualify as transformative. To allow such a 19 rule would, for example, allow a copyrighted short story to be reprinted without permission in a 20 larger collection of short stories. 21 It is true, as Google points out, that the Federal Circuit opinion seemingly lends support 22 to Google’s argument. On page 1374 at column two, the opinion included the following single 23 sentence followed by a long string cite with parenthetical squibs: 24 25 26 27 28 A work is not transformative where the user “makes no alteration to the expressive content or message of the original work.” Seltzer, 725 F.3d at 1177; see also Wall Data, 447 F.3d at 778 (“The Sheriff’s Department created exact copies of RUMBA’s software. It then put those copies to the identical purpose as the original software. Such a use cannot be considered transformative.”); Monge, 688 F.3d at 1176 (finding that a magazine’s publication of photographs of a secret celebrity wedding “sprinkled with written commentary” was “at best Dockets.Justia.com 1 2 3 4 minimally transformative” where the magazine “did not transform the photos into a new work . . . or incorporate the photos as part of a broader work”); Elvis Presley Enters., 349 F.3d at 629 (finding that use of copyrighted clips of Elvis’s television appearances was not transformative where “some of the clips [we]re played without much interruption, if any . . . [and] instead serve[d] the same intrinsic entertainment value that is protected by Plaintiffs’ copyrights.”). 5 As quoted above, the second parenthetical squib includes the phrase “where the magazine 6 ‘did not transform the photos into a new work . . . or incorporate the photos as part of a broader 7 work.’” The latter six words are the key words in question, so where in Ninth Circuit law did 8 these words come from? 9 The parenthetical squib is attached is Monge v. Maya Magazines, Inc., 688 F.3d 1164, 10 photos of their wedding and wedding night, which were stolen and sold to a tabloid, which For the Northern District of California United States District Court 1176 (9th Cir. 2012). There, a celebrity got married secretly. She and her husband had private 11 12 published them. The tabloid claimed fair use, which claim found rejection by our court 13 of appeals. Distinguishing an earlier Ninth Circuit decision, Monge stated in relevant part 14 (688 F.3d at 1176): 15 16 Maya did not transform the photos into a new work, as in Campbell, or incorporate the photos as part of a broader work as in CBS Broadcasting. 17 Earlier in Monge, however, more context appeared as to the CBS Broadcasting reference and the 18 origin of the phrase “as part of a broader work” (at 1174): 19 20 21 22 Arrangement of a work in a photo montage, however, can be transformative where copyrighted material is incorporated into other material. For example, the use of a brief segment of a riot clip in a promotional video was deemed to be fair use. This earlier explanation in Monge informs us as to the meaning of the later phrase 23 “as part of a broader work.” A montage “can be” transformative — depending. “Can be” does 24 not mean “is be,” as Google would have our jury infer. Of course, incorporating copyrighted 25 material into a larger work “can be,” depending on other circumstances, enough to warrant fair 26 use. The actual montage facts recited in L.A. News Services v. CBS Broadcasting, Inc., 305 F.3d 27 924 (9th Cir. 2002), bear this out. And, Monge itself involved incorporation of the wedding 28 photos into a larger work and that fact was decidedly not enough to excuse the piracy by 2 1 the tabloid. Piracy as well as fair use both will almost always involve using the copyrighted 2 material as part of a larger work. This consideration does not help distinguish between allowed 3 uses versus disallowed uses. 4 In sum, Google has cleverly seized on a snippet of six words in a squib placed by the 5 Federal Circuit in its opinion and ignored the actual holding (to the contrary) of the Ninth Circuit 6 decision cited (Monge). Both sides have been guilty of this and have repeatedly tried to squeeze 7 too much out of our appellate opinion, yet time is too short to call out every instance. Google’s 8 request is DENIED. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 12 Dated: May 2, 2016. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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