Software's Copyright Anticommons

• Jurisdiction: United States,Federal
• Publication year: 2017
• Citation: Vol. 66 No. 2

Software's Copyright Anticommons

Clark D. Asay

SOFTWARE'S COPYRIGHT ANTICOMMONS

Clark D. Asay^*

Scholars have long assessed "anticommons" problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has not been viewed as a significant source of anticommons problems. But this Article argues that copyright is an increasingly significant cause of anticommons concerns in the software context for at least two related reasons. First, the increasingly collaborative nature of much modern software innovation means that any given software resource is subject to dozens, hundreds, or even thousands of distinct copyright interests, each of which can ultimately hamper use of the software resource. While collaborative innovation licensing models help reduce the threat of any given copyright holder restricting use of the software resource, these licensing models do not altogether eliminate such risks and, in fact, actually create risks of holdup and underuse that have previously received less attention than they are due. Second, interoperability needs in the growing "Internet of Things" and "cloud" economies demand sharing and reuse of software for these ecosystems to work. Yet because these technological ecosystems implicate thousands of different parties with distinct copyright interests in their software, the threat of any one of those parties ultimately using its rights in ways that inhibit the successful development and use of the Internet of Things and cloud economies looms large. In order to illustrate some of these anticommons

[Page 266]

problems in practice, this Article examines a recent high-profile software copyright dispute between Oracle and Google.

As a possible solution to these types of problems, this Article assesses the merits of more explicitly adapting copyright's fair use defense to the collaborative and interconnected nature of modern software innovation. The Article concludes by arguing that copyright disputes in other fields of creativity characterized by collaborative, interconnected development may also merit such fair use adaptations. Otherwise, anticommons problems may increasingly affect those fields as well.

INTRODUCTION

In 2012, Cindy Lee Garcia sued Google Inc. for copyright infringement.¹ Her lawsuit was meant to force the company to remove from YouTube an anti-Islamic film that included a five-second performance by her.² Garcia claimed a copyright interest in the performance and that YouTube, therefore, had no right to host it without her permission.³ For $500, Garcia had agreed to the performance with the understanding that it would be used in a film called Desert Warrior.⁴ But when her performance was distorted and used in an anti-Islamic film, Innocence of Muslims, the consequences were severe.⁵ When the film appeared on YouTube and elsewhere, Garcia received death threats.⁶ Some even suggested the attack on the U.S. embassy in Benghazi, Libya, was in response to the film.⁷

After the district court held against Garcia, the Ninth Circuit Court of Appeals initially ruled in her favor, holding that Garcia had likely met her burden of demonstrating a copyright interest in her performance.⁸ This was so because, among other reasons, her performance included some amount of creativity, even if it was only five seconds long and based on a script provided

[Page 267]

to her.⁹ According to the court, that creativity may include her "body language, facial expression and reactions to other actors and elements of a scene."¹⁰ But in early 2015, a full panel of the Ninth Circuit reversed this earlier decision, observing that "[t]reating every acting performance as an independent work [subject to copyright] would not only be a logistical and financial nightmare, it would turn [a] cast of thousands into a new mantra: copyright of thousands."¹¹

Now fast forward to June 29, 2015. On that day, the U.S. Supreme Court denied Google's petition for writ of certiorari requesting review of the Court of Appeals for the Federal Circuit's decision in Oracle v. Google.¹² As a result, the Federal Circuit decision, which upheld copyright protection for certain parts of Oracle's Java software technologies, was left intact.¹³ In particular, Google's use of thirty-seven of Oracle's Java "application programming interfaces" (APIs) in its Android operating system may constitute copyright infringement because, according to the decision, creation of the APIs required some creativity.¹⁴ And this was so despite the fact that the APIs were, quantitatively, only a very small part of Android; Google engineers wrote nearly all ten million lines of the software code for Android.¹⁵ Although the district court found on remand that Google's use of the APIs constituted fair use, the Federal Circuit's decision regarding the copyrightability of the APIs remained otherwise undisturbed.¹⁶

While these two cases have many obvious differences, they highlight a similar potential copyright problem: what the Ninth Circuit in Garcia called "copyright of thousands." More traditionally, this type of problem is referred to as an "anticommons" problem, which is shorthand for underuse of a resource because numerous parties have rights in the resource, and the presence of these

[Page 268]

multiple rights inhibits others from using that resource in socially beneficial ways.¹⁷ Scholars often argue that anticommons result when any one of these rights holders asserts its rights to prevent others from using the common resource.¹⁸ But while rights assertions may be one common cause of anticommons problems, this Article takes the position that anticommons can also result when rights remain unasserted, or even, in some cases, when they are licensed. In other words, a multiplicity of rights in a resource can still result in underuse of that resource, even without formal bargaining breakdowns. This Article focuses on potential anticommons problems in the software context and argues that at least two significant and growing trends in modern software innovation are leading to rising anticommons concerns.

First, because increasingly more software products are collaboratively built by a variety of parties,¹⁹ any given software product may be subject to hundreds, and sometimes even thousands, of copyright interests.²⁰ And each of these copyright holders may assert or use its rights in ways that make using the collaboratively built resource more difficult.²¹ This difficulty may thus result in significant underuse of the software resource. The Oracle v. Google case, where Oracle successfully created copyright infringement concerns about Android on the basis of a copyright claim pertaining to a very small piece of the overall Android system, provides one recent example of this type of holdup problem. But even when the general intent of all parties involved in producing some software good is one of openness, the presence of numerous copyrights

[Page 269]

increases costs for those wishing to use the collaboratively built good.²² And these costs may slow use of the resource in ways that inhibit software innovation.²³

Other scholars have assessed potential anticommons problems in the software context.²⁴ But they typically attribute any such problems to excessive patent rights, not excessive copyright rights.²⁵ Indeed, previous scholarship has often argued that copyright law has built-in safeguards against anticommons problems.²⁶ Furthermore, previous scholars have typically argued that collaborative innovation licensing models reduce, rather than produce, anticommons problems.²⁷ In fact, the primary issue scholars have assessed in the software copyright context is the proper boundary between copyrightable and non-copyrightable elements of software, a question that was very much at issue in the Oracle v. Google case.²⁸

[Page 270]

This Article argues that one reason such line-drawing questions are important is because a line that yields more copyrights will result in greater anticommons problems in today's collaborative software world.²⁹ In contrast to previous scholarship, this Article thus argues that the collaborative nature of modern software innovation may result in significant anticommons concerns because that collaboration increases the number of copyrights in any given software product. And decisions such as Oracle v. Google, which may expand the reach of software copyright, will likely exacerbate these types of anticommons problems.

A second, related trend that is likely to lead to growing anticommons concerns in the software world is the interconnected nature of much modern software innovation. Indeed, in today's world, a growing need exists for software products to interoperate with each other, particularly as more and more software moves into the "cloud" in order to facilitate the "Internet of Things" economy. For instance, the growing Internet of Things requires that more and more software products be hosted on the computers of companies (i.e., in the cloud), rather than on those of users, to provide Internet access to those services on a variety of interconnected products. Yet in order for these heterogeneous products and services to successfully interoperate with each other in exchanging information, they must also typically exchange software interfaces. And in order for those exchanges to occur, parties must be willing to make these software interfaces available for use by third parties. While in many cases parties have incentives to do exactly that, in other cases they may...