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Amicus Briefs in Oracle v. Google and Microsoft's, as text ~pj
Friday, March 01 2013 @ 12:32 AM EST

I promised last week that I'd do Microsoft's amicus brief [PDF] filed in support of Oracle's appeal, sort of, in Oracle v. Google as text for you, and I've done it, finally.

I say sort of, because three times the brief, filed by Microsoft with EMC and NetApp, they say they take no position on whether or not Google infringed:

Although amici do not take a position on the ultimate question of whether the software packages at issue in this case are copyrightable and whether any copyright has been infringed, amici urge this Court (1) to hold that the district court's copyright analysis was fundamentally flawed and (2) to decide this case in light of the settled copyright principles discussed below.
The brief opens like this:
This case tests the copyrightability of computer programs, specifically packages of source code that are part of the Java software platform used by third-party software developers to write applications for computers, tablets, smartphones, and other devices running Java.
Wait just a minute. That's somewhat misleading. This is about 37 APIs, or more precisely their structure, sequence and order, not about software "programs" as most people understand that word. To understand that sentence, you need to know what APIs are. Because what Microsoft is asking for is a ruling that copyright protects nonliteral copying:
Congress has determined that computer software is eligible for copyright protection. 17 U.S.C. § 101. Copyright protects computer software in several important respects. It covers the literal lines of code that comprise software, generally preventing their reproduction or distribution without permission from the rightsholder. But copyright also covers certain non-literal elements of the software as well. For example, the "structure, sequence, and organization" of a software product -- above and beyond the 1s and 0s that make up the program at its literal level or the exact words of the human-readable source code -- can, in some instances, be protected by the copyright in the work. As a result, copyright infringement in a software case can occur even when the defendant did not copy the underlying developers' code, where the defendant has copied some other, non-literal element of the software subject to copyright protection.
That is, of course, exactly what SCO was asking for, before it flamed out and fell into oblivion. SCO used the same law firm as Oracle, Boies Schiller, so perhaps it's not astounding that they raised that same theory of copyright for SCO, an adventure Microsoft and Sun (now part of Oracle) funded, and here it is again, this time in Microsoft's mouth. I'd like to correct several misleading elements in this amicus brief. And we now have all the amicus briefs as PDFs.

First, here are all the amicus briefs as PDFs:

02/19/2013 - 46 - 38 pg, 140.51 KB
BRIEF TENDERED from Marcia B. Paul Title: BRIEF FOR AMICUS CURIAE RALPH OMAN SUPPORTING THE POSITION OF PLAINTIFF-APPELLANT AND URGING REVERSAL. Service: 02/19/2013 by email. [51833]

02/19/2013 - 47 - 1 pg, 30.71 KB
Entry of appearance for DEBORAH A. ADLER as of counsel for BRIEF FOR AMICUS CURIAE RALPH OMAN. Service: 02/19/2013 by email. [51837]

02/19/2013 - 48 - 1 pg, 32.73 KB
Entry of appearance for LACY H. KOONCE, III as of counsel for BRIEF FOR AMICUS CURIAE RALPH OMAN. Service: 02/19/2013 by email. [51839]

02/19/2013 - 49 - 1 pg, 85.32 KB
Entry of appearance for Gregory G. Garre as principal counsel for Microsoft Corp.. Service: 02/19/2013 by email. [51843]

02/19/2013 - 50 - 1 pg, 82.77 KB
Entry of appearance for Lori Alvino McGill as of counsel for Microsoft Corp.. Service: 02/19/2013 by email. [51847]

02/19/2013 - 51 - 1 pg, 53.11 KB
Entry of appearance for William A. Rudy as principal counsel for AMICI CURIAE PICTURE ARCHIVE COUNCIL OF AMERICA, INC. AND GRAPHIC ARTISTS GUILD. Service: 02/19/2013 by email. [51868]

02/19/2013 - 52 - 1 pg, 53.54 KB
Entry of appearance for Carole E. Handler as of counsel for AMICI CURIAE PICTURE ARCHIVE COUNCIL OF AMERICA, INC. AND GRAPHIC ARTISTS GUILD. Service: 02/19/2013 by email. [51871]

02/19/2013 - 53 - 1 pg, 53.24 KB
Entry of appearance for Brianna E. Dahlberg as of counsel for AMICI CURIAE PICTURE ARCHIVE COUNCIL OF AMERICA, INC. AND GRAPHIC ARTISTS GUILD. Service: 02/19/2013 by email. [51872]

02/19/2013 - 54 - 38 pg, 80.75 KB
BRIEF TENDERED from AMICI CURIAE PICTURE ARCHIVE COUNCIL OF AMERICA, INC. AND GRAPHIC ARTISTS GUILD Title: BRIEF OF AMICI CURIAE PICTURE ARCHIVE COUNCIL OF AMERICA, INC. AND GRAPHIC ARTISTS GUILD IN SUPPORT OF PLAINTIFF APPELLANT SEEKING REVERSAL. Service: 02/19/2013 by email. [51874]

02/19/2013 - 55 - 30 pg, 121.59 KB
BRIEF TENDERED from Microsoft Corp. Title: Brief for Amici Curiae Microsoft Corporation, EMC Corporation, and NetApp, Inc. in Support of Appellant. Service: 02/19/2013 by email. [51875]

02/19/2013 - 56 - 2 pg, 36.44 KB
Entry of appearance for Matthew S. Hellman as principal counsel for BSA | The Software Alliance. Service: 02/19/2013 by email. [51876]

02/19/2013 - 57 - 2 pg, 36.52 KB
Entry of appearance for Paul M. Smith as of counsel for BSA | The Software Alliance. Service: 02/19/2013 by email. [51878]

02/19/2013 - 58 - 0 pg, 0 KB
BRIEF TENDERED from Scott McNealy and Brian Sutphin Title: BRIEF of Scott McNealy and Brian Sutphin as AMICUS CURIAE In Support of Reversal. Service: 02/19/2013 by email. [51880] This brief has been rejected. See Doc No. [78]

02/19/2013 - 59 - 0 pg, 0 KB
BRIEF TENDERED from BSA | The Software Alliance Title: Breif for BSA | The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. Service: 02/19/2013 by email. [51881]

02/19/2013 - 60 - 5 pg, 26.66 KB
Entry of appearance for Jared Bobrow as principal counsel for Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D.. Service: 02/19/2013 by email. [51891]

02/19/2013 - 61 - 3 pg, 25.8 KB
Entry of appearance for Aaron Huang as of counsel for Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D.. Service: 02/19/2013 by email. [51892]

02/19/2013 - 62 - 33 pg, 222.87 KB
BRIEF TENDERED from Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D. Title: Brief of Amici Curiae Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D. in Support of Appellant. Service: 02/19/2013 by email. [51893]

02/20/2013 - 63 - 0 pg, 0 KB
Entry of appearance for Krishnendu Gupta as of counsel for Appellant Oracle America, Inc. EMC Corporation. Service: 02/20/2013 by email. [52038] This document has been rejected. See Doc No. [71]

02/20/2013 - 64 - 1 pg, 81.81 KB
Entry of appearance for Douglas B. Luftman as of counsel for NetApp, Inc.. Service: 02/20/2013 by email. [52101]

02/20/2013 - 65 - 0 pg, 0 KB
Corrected Entry of appearance for Krishnendu Gupta, Senior Vice President and Deputy General Counsel as of counsel for EMC Corporation. Service: 02/20/2013 by email. [52122] This document has been rejected. See Doc No. [71]

02/20/2013 - 66 - 0 pg, 0 KB
Entry of appearance for Paul T. Dacier, Executive Vice President and General Counsel as of counsel for EMC Corporation. Service: 02/20/2013 by email. [52299] This document has been rejected. See Doc No. [71]

02/21/2013 - 67 - 8 pg, 47.47 KB
MOTION of Cross-Appellant Google Inc. to extend the time to 05/23/2013 at 11:59 pm to file the appellee/respondent/cross-appellant's principal brief. Response/Opposition is due 03/07/2013 [Consent: unopposed]. Service: 02/21/2013 by email. [52647]

02/19/2013 - 68 - 38 pg, 199.7 KB
BRIEF FILED (AMICUS) for Ralph Oman [46]. Title: Brief for Amicus Curiae Ralph Oman Supporting the Position of Plaintiff-Appellant and Urging Reversal, [Non-Confidential version only]. Number of Pages: 30. Service: 02/19/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 02/27/2013. [52666]

02/19/2013 - 69 - 38 pg, 82.74 KB
BRIEF FILED (AMICUS) for Graphic Artists Guild and Picture Archive Council of America, Inc. [54]. Title: Brief of Amici Curiae Picture Archive Council of America, Inc. and Graphic Artists Guild in Support of Plaintiff-Appellant Seeking Reversal, [Non-Confidential version only]. Number of Pages: 28. Service: 02/19/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 02/27/2013. [52670]

02/19/2013 - 70 - 30 pg, 125.43 KB
BRIEF FILED (AMICUS) for Microsoft Corporation [55]. Title: Brief for Amici Curiae Microsoft Corporation, EMC Corporation, and Netapp, Inc. in Support of Appellant, [Non-Confidential version only]. Number of Pages: 22. Service: 02/19/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 02/27/2013. [52672]

02/22/2013 - 71 - 2 pg, 18.41 KB
Notice of Rejection to Amicus Curiae Emcore Corporation, the following document(s) cannot be filed: [66] attorney entry of appearance , [65] attorney entry of appearance , [63] attorney entry of appearance. Reason(s) The documents are not text-searchable and do not contain certificates of service. Service: 02/22/2013 by clerk.

02/22/2013 - 72 - 3 pg, 22.1 KB
NOTICE OF REJECTION: The brief of Amicus Curiae BSA - The Software Alliance, Brief for BSA The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. [59], is not in compliance with the rules of this court and is therefore rejected for filing. amicus brief due 03/08/2013. [52678]

02/22/2013 - 73 - 2 pg, 456.94 KB
Corrected Entry of appearance for Krishnendu Gupta as of counsel for EMC Corporation. Service: 02/22/2013 by email. [52702]

02/22/2013 - 74 - 2 pg, 490.68 KB
Corrected Entry of appearance for Paul T. Dacier as of counsel for EMC Corporation. Service: 02/22/2013 by email. [52705]

02/22/2013 - 75 - 43 pg, 169.35 KB
BRIEF TENDERED from Amicus Curiae BSA - The Software Alliance. Title: Corrected Brief for BSA | The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellant Oracle America, Inc.. Service: 02/22/2013 by email. [52766]

02/19/2013 - 76 - 33 pg, 228.42 KB
BRIEF FILED (AMICUS) for Zhi Ding, Lee A. Hollaar and Eugene H. Spafford [62]. Title: Brief of Amici Curiae Eugene H. Spafford, Ph.D., ZHI DING, Ph.D., and Lee A. Hollaar, Ph.D. in Support of Appellant, [Non-Confidential version only]. Number of Pages: 24. Service: 02/19/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 02/27/2013. [52772]

02/22/2013 - 77 - 43 pg, 180.84 KB
BRIEF FILED (AMICUS) for BSA - The Software Alliance [75]. Title: Corrected Brief for BSA The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellant Oracle America, Inc., [Non-Confidential version only]. Number of Pages: 34. Service: 02/22/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 02/27/2013. [52778]

02/22/2013 - 78 - 3 pg, 22.35 KB
NOTICE OF REJECTION: The brief of Scott McNealy and Brian Sutphin, Brief of Scott McNealy and Brian Sutphin as Amici Curiae in Support of Reversal [58], is not in compliance with the rules of this court and is therefore rejected for filing.. [52820]

02/22/2013 - 79 - 6 paper copies of the amicus Brief [76] received from Amici Curiae Eugene H. Spafford, Ph.D., ZHI Ding, Ph.D. and Lee A. Hollaar, Ph.D. [52996]--[Edited 02/22/2013 by VDW to correct parties selected]

02/22/2013 - 80 - 6 pg, 118.89 KB
Entry of appearance for Steven T. Cottreau as principal counsel for Scott McNealy and Brian Sutphin. Service: 02/22/2013 by email. [53149]

02/22/2013 - 81 - 47 pg, 177.96 KB
BRIEF TENDERED from Scott McNealy and Brian Sutphin Title: Corrected BRIEF of Scott McNealy and Brian Sutphin as AMICUS CURIAE In Support of Reversal. Service: 02/22/2013 by email. [53195]

02/25/2013 - 82 - 6 paper copies of the amicus Brief [69] received from Amici Curiae Graphic Artists Guild and Picture Archive Council of America, Inc.. [53321]

02/25/2013 - 83 - 6 paper copies of the amicus Brief [68] received from Amicus Curiae Ralph Oman. [53339]

02/25/2013 - 84 - 6 pg, 115.68 KB
Corrected Entry of appearance for Steven T. Cottreau as principal counsel for Scott McNealy and Brian Sutphin. Service: 02/25/2012 by email. [53352]

02/22/2013 - 85 - 47 pg, 176.75 KB
BRIEF FILED (AMICUS) for Scott McNealy and Brian Sutphin [81]. Title: Corrected Brief of Scott McNealy and Brian Sutphin as Amici Curiae in Support of Reversal, [Non-Confidential version only]. Number of Pages: 26. Service: 02/22/2013 by email. Pursuant to ECF-10, filer is directed to file six copies of the brief in paper format. The paper copies of the brief should be received by the court on or before 03/04/2013. [53404]

02/25/2013 - 86 - 6 paper copies of the amicus Brief [70] received from Amici Curiae EMC Corporation, Microsoft Corporation and NetApp Inc.. [53454]

Getting back to Microsoft's brief, do you remember back in the early days of the SCO saga, eWeek's Steven J. Vaughan-Nichols did an article, "Why SCO Thinks It Can Win?", where he interviewed then-SCO VP Chris Sontag and then-CEO Darl McBride about why they thought SCO could beat IBM at trial? They both spoke about Harry Potter and Vanilla Ice riffs and nonliteral copying of sequences and organization:
McBride: A lot of code that you'll be seeing coming on in these copyright cases is not going to be line-by-line code. It will be more along the lines of nonliteral copying, which has more to do with infringement. This has more to do with sequence, organization, which is copyright-protectable. It's interesting when you go down this path that everyone wants to go to the exact lines of code, but most copyright cases…

Sontag: 90 to 95 percent

McBride: …are not line-by-line, exact copies. It's too obvious. Most copyright infringement cases come from these nonliteral implementations of the same code or literary work.

Sontag: My favorite example is the Russian author [Dmitry Yemets], who lost in a copyright case [after being sued by] J.K. Rowling, author of the 'Harry Potter' books, in a Dutch court. He had written a book: It was a girl, not a boy, with magical powers who rides a magical fiddle and not a broom, goes to a boarding school to learn witchcraft and wizardry, plays a game of throwing balls through hoops. All these things were very similar to Harry Potter. Could someone else ever write a book about wizards and witches? Sure. But when the structure and sequence is the same…maybe the words, the code, isn't exactly the same, but Linux is trying to be just like Unix System V. The question is whether Linux was trying to be like Unix System V by doing it in ways that were illegal.

McBride: Before all of this is said and done, you'll see people saying that SCO already published a lot of this stuff in books but that these books contained copyright-protected materials.

What book are you talking about? Lions' book?

Editor's Note: "Lions' Commentary on UNIX 6th Edition with Source Code" by Tom Lions is a book for Unix developers that, decades after it was published, is still regarded as one of the best guides on a Unix-style operating system.

McBride: No, that's ancient stuff. We're talking about recent stuff posted as a result of the BSD [Berkeley Software Design Inc.] settlement. There are things out there that help people understand how to program to System V application binary interfaces [ABIs], to help them hook up to the OS. It was out there to help people write applications. It wasn't published to help someone knock off the OS and create a free version of System V.

Sontag: If I can get my hands on it, it's mine.

McBride: I saw it, it was published, so the cows are out of the barn. The analogy I like to use is Vanilla Ice's "Ice Ice Baby" versus David Bowie and Queen's "Under Pressure." If you just look at the words, I don't see a copyright violation, but if you listen to the riffs, you can hear where they're the same.

Editor's Note: Vanilla Ice settled out of court presumably because his song included riffs that had been taken from Bowie and Queen's work. See Copyright Website LLC for more on the issue.

McBride: When everything is said and done, when everything is on the table in the court case, there will be an argument when the Linux guys come in and say, 'Guys, the words are entirely different, how can you say that's a copyright violation?'

But there are two parts to this. There are the words that are in the source code, and there's the music underneath. The actual code that drives these ABI files is structurally and sequentially the same.

What about the argument that, given the nature of the language and the design goals, that of course you'd end up with similar structures. I mean, how many efficient ways are there to write 'hello world' [the canonical beginner's program]?

McBride: We'll give them 'hello world.'

Sontag: Sure, there may be some of that, but look at dynamic shared libraries; different operating systems implement these very differently. But in Linux and System V, they're implemented in exactly the same way. They could have been done very differently and still accomplish the same thing.

McBride: That's the kind of stuff that we think that, when everything is on the table, will win for us.

Not literal copying of code but arranging things in a sequence. Oracle is claiming the same thing, only about APIs instead of ABIs. API stands for Application Programming Interface and ABI stands for Application Binary Interface. They are both interfaces, ways to connect to information, but APIs are for programmers and ABIs talk to computers. SCO got nowhere with this theory against IBM, but that is what it sued AutoZone about, as it stated in this 10Q:
On or about March 2, 2004, we brought suit against AutoZone, Inc. for its alleged violations of our UNIX copyrights through its use of Linux. Specifically, the lawsuit alleges that AutoZone violated our UNIX copyrights by running versions of the Linux operating system that contain code, structure, sequence and/or organization from our proprietary UNIX System V code in violation of our copyrights.
Despite SCO's feeble results, or maybe because of it, here is Oracle, with Microsoft lending a hand, with a similar theory, warmed up again. Why do Microsoft and Oracle care so much about this? I'm not sure. Maybe because ABIs are what the Cloud uses to let others connect to Cloud offerings? Maybe just because the same law firm is representing both SCO and Oracle? Maybe just to be annoying.

So what are Java APIs and what is this Oracle v. Google copyright case really about? I'll let Judge William Alsup's order tell you what Java APIs are and what the case is really about:

Both Java and Android are complex platforms. Both include “virtual machines,” development and testing kits, and application programming interfaces, also known as APIs.... Significantly, all agreed that Google had not literally copied the software but had instead come up with its own implementations of the 37 API packages. Oracle’s central claim, rather, was that Google had replicated the structure, sequence and organization of the overall code for the 37 API packages....

This order addresses and resolves the core premise of the main copyright claims, namely, whether the elements replicated by Google from the Java system were protectable by copyright in the first place....

The Java language itself is composed of keywords and other symbols and a set of pre-written programs to carry out various commands, such as printing something on the screen or retrieving the cosine of an angle. The set of pre-written programs is called the application programming interface or simply API (also known as class libraries)....

In 2008, the Java API had 166 “packages,” broken into more than six hundred “classes,” all broken into over six thousand “methods.” This is very close to saying the Java API had 166 “folders” (packages), all including over six hundred pre-written programs (classes) to carry out a total of over six thousand subroutines (methods). Google replicated the exact names and exact functions of virtually all of these 37 packages but, as stated, took care to use different code to implement the six thousand-plus subroutines (methods) and six-hundred-plus classes.

An API is like a library. Each package is like a bookshelf in the library. Each class is like a book on the shelf. Each method is like a how-to-do-it chapter in a book. Go to the right shelf, select the right book, and open it to the chapter that covers the work you need. As to the 37 packages, the Java and Android libraries are organized in the same basic way but all of the chapters in Android have been written with implementations different from Java but solving the same problems and providing the same functions. Every method and class is specified to carry out precise desired functions and, thus, the “declaration” (or “header”) line of code stating the specifications must be identical to carry out the given function....

In light of its inability to reach agreement with Sun, Google decided to use the Java language to design its own virtual machine via its own software and to write its own implementations for the functions in the Java API that were key to mobile devices. Specifically, Google wrote or acquired its own source code to implement virtually all the functions of the 37 API packages in question. Significantly, all agree that these implementations — which account for 97 percent of the lines of code in the 37 API packages — are different from the Java implementations. In its final form, the Android platform also had its own virtual machine (the so-called Dalvik virtual machine), built with software code different from the code for the Java virtual machine.

As to the 37 packages at issue, Google believed Java application programmers would want to find the same 37 sets of functionalities in the new Android system callable by the same names as used in Java. Code already written in the Java language would, to this extent, run on Android and thus achieve a degree of interoperability.

See the difference between what the judge says the case is about and Microsoft's description? It's not about whether code is copyrightable. It's the first case to decide whether the structure, sequence and organization of APIs is protectable by copyright. As the judge described it:
All agree that Google was and remains free to use the Java language itself. All agree that Google’s virtual machine is free of any copyright issues. All agree that the six-thousand-plus method implementations by Google are free of copyright issues. The copyright issue, rather, is whether Google was and remains free to replicate the names, organization of those names, and functionality of 37 out of 166 packages in the Java API, which has sometimes been referred to in this litigation as the “structure, sequence and organization” of the 37 packages.

The Android platform has its own API. It has 168 packages, 37 of which are in contention. Comparing the 37 Java and Android packages side by side, only three percent of the lines of code are the same. The identical lines are those lines that specify the names, parameters and functionality of the methods and classes, lines called “declarations” or “headers.” In particular, the Android platform replicated the same package, method and class names, definitions and parameters of the 37 Java API packages from the Java 2SE 5.0 platform. This three percent is the heart of our main copyright issue.

A side-by-side comparison of the 37 packages in the J2SE 5.0 version of Java versus in the Froyo version of Android shows that the former has a total of 677 classes (plus interfaces) and 6508 methods wherein the latter has 616 and 6088, respectively. Twenty-one of the packages have the same number of classes, interfaces and methods, although, as stated, the method implementations differ.

The three percent of source code at issue includes “declarations.” Significantly, the rules of Java dictate the precise form of certain necessary lines of code called declarations, whose precise and necessary form explains why Android and Java must be identical when it comes to those particular lines of code. That is, since there is only one way to declare a given method functionality, everyone using that function must write that specific line of code in the same way. The same is true for the “calls,” the commands that invoke the methods.

That's what this case is about. And I'm sure Microsoft knows that, regardless of what their lawyers wrote.

The end result of this misleading mischaracterization of the case is that nothing Microsoft says is precisely on point. Judge Alsup is a programmer, as well as a judge, so no one could fool him. I don't know about the Federal Circuit, but for sure if you hold up the judge's order and the Microsoft brief, side by side, anyone can see, if they want to, that they don't match.

All the way through the brief, Microsoft continues to mislead this way. Here's another example, from the Table of Contents:

I. THE DISTRICT COURT'S HOLDING THAT THE JAVA
PLATFORM WAS NOT COPYRIGHTABLE AT ALL WAS
FLAWED AS A MATTER OF COPYRIGHT LAW AND
POLICY, AND WOULD DESTABILIZE THE SOFTWARE
INDUSTRY
The judge never held that the "Java platform" wasn't copyrightable. He ruled that 37 APIs weren't. There is a huge difference. Because of the misleading language about what this case is about, I want to reproduce the summary of the argument in the judge's order, so you are not misled by this amicus brief:

SUMMARY OF RULING

So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law.

It is true that the very same functionality could have been offered in Android without duplicating the exact command structure used in Java. This could have been done

3

by re-arranging the various methods under different groupings among the various classes and packages (even if the same names had been used). In this sense, there were many ways to group the methods yet still duplicate the same range of functionality.

But the names are more than just names — they are symbols in a command structure wherein the commands take the form

java.package.Class.method()
Each command calls into action a pre-assigned function. The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability.
And if it's necessary for interoperability, it's not copyrightable, he ruled:
The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability....

Contrary to Oracle, copyright law does not confer ownership over any and all ways to implement a function or specification, no matter how creative the copyrighted implementation or specification may be. The Act confers ownership only over the specific way in which the author wrote out his version. Others are free to write their own implementation to accomplish the identical function, for, importantly, ideas, concepts and functions cannot be monopolized by copyright.

APIs are interfaces, then, and Google copied only a partial list of them, basically, of "utilitarian and functional" symbols or methods of operations for the purpose of interoperability. The case is not about whether software programs can be copyrighted. They already are.

But what will turn you purple -- or at least it did me -- is these three proprietary companies telling the court that they "actively use, contribute to, and sponsor open source projects":

Copyright licensing thus provides the solution for a dilemma faced by software platform creators: how to provide those "shared services ... through APIs" to users without enabling threats to the purposes and goals of that platform. The lessons from the open source experience are instructive:
The proponents of open-source software faced a problem. On the one hand they wanted to make open-source software widely available. That meant that they did not want to use copyrights, patents, or trade secrets to limit the distribution of open-source programs. On the other hand, they wanted to make sure that commercial enterprises could not free-ride on the efforts of the open-source community by making minor changes or additions to open-source programs but then enforcing their own intellectual property rights on the entire modified programs. The General Public License (GPL) was an ingenious solution to this dilemma.... Despite the copyleft name, the GPL is enforced by copyright law. Copyright is the source of the property protection that enables those who release software under a GPL to impose conditions on others who obtain that code.
Id. at 74 (emphasis added).

The chief legal reason why users must abide by the terms of the General Public License, or the Mozilla Public License, or any open-source license, is that failing to do so exposes the violator to potential copyright liability. See Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008); Natasha Horne, Note & Comment, Open Source Software Licensing: Using Copyright Law to Encourage Free Use, 17 Ga. St. U. L. Rev. 863 (2001); Greg R. Vetter, The Collaborative Integrity of Open-Source Software, 2004 Utah L. Rev. 563, 574. By the same token, the reason why companies like amici are able to maintain open platforms for third-party developers is that they can count on copyright as the primary mechanism for enforcing a consistent set of practices that maximize productivity, interoperability, and distributed innovation.

Without copyright, amici and similarly situated companies would be forced to retrench and only disclose information about their computer programs to users and developers in more restrictive and costly ways, to prevent harmful misappropriation of their innovation or threats to the integrity of the platform. That would strike a devastating blow to innovation in the software industry, cross-industry collaboration and ultimately to downstream consumers.

But this is misleading too, in that if you wish to copy and extend and redistribute software, not only APIs but the entire program, you are free to do so. Nobody puts the GPL license on software to prevent "misappropriation of their innovation". It's the entire point, to share knowledge so others can build on it. The Linux kernel is an example of software distributed that way. Google built Android on top of the Linux kernel, and they are not being sued for doing that. The GPL lets them, contrary to the inference Microsoft spins.

By the way, the metadata I see on the Microsoft brief, the PDF, says it was written in Microsoft Word 2010, and the PDF was created by MacOSX 10.6.8. I know. Who'd a thunk it? Microsoft needs to get after its lawyers to toe the line.

Speaking of which, despite the metadata saying the reader is free to copy text, print, or even make changes and save, when you copy and paste, you get weird omissions in the text, lines of squiggles instead, that look like this

␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣␣
Every page. So that's what took me so long, because not only do you have to hand type the missing text, you have the annoyance of having to delete the inserted squiggle lines, page after page. It's not Mac OSX doing that, or at least in all the years I used Macs, I never saw anything like that. I checked the metadata precisely to ensure I wasn't unwittingly about to violate some DRM thingie, but it says it's not encrypted. So it's just to be annoying, I guess. Every time I have any contact with a Microsoft product, that is the result: severe annoyance.

Here it is, then, Microsoft's amicus brief as text. Try not to have a stroke when you read it:

*****************

BRIEF FOR AMICI CURIAE MICROSOFT CORPORATION,
EMC CORPORATION, AND NETAPP, INC.
IN SUPPORT OF APPELLANT

TABLE OF CONTENTS

Page

CERTIFICATE OF INTEREST .....................i

TABLE OF AUTHORITIES .....................iv

STATEMENT OF INTEREST................................1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............5

ARGUMENT ...........................................9  

I.  THE DISTRICT COURT'S HOLDING THAT THE JAVA
PLATFORM WAS NOT COPYRIGHTABLE AT ALL WAS
FLAWED AS A MATTER OF COPYRIGHT LAW AND
POLICY, AND WOULD DESTABILIZE THE SOFTWARE
INDUSTRY .............................................9  
A.   The District Court Misapplied And Disregarded Basic
Copyright Principles .............................10

  B.   The District Court's Copyrightability Ruling Would
Upset Settled Expectations And Harm Incentives For
Innovation ...........................15

  II.   COPYRIGHT LAW ACCOUNTS FOR THE FREEDOM TO
INNOVATE WITH FOLLOW-ON CREATIONS THROUGH
DOCTRINES THAT ARE MORE EFFECTIVE AND
BALANCED THAN THE DISTRICT COURT'S ALL-OR-
NOTHING APPROACH TO THE COPYRIGHTABILITY OF
SOFTWARE PLATFORMS........................................18  
CONCLUSION .....................................22

iii

TABLE OF AUTHORITIES

[See PDF, please]

iv, v

STATEMENT OF INTEREST 1

This case tests the copyrightability of computer programs, specifically packages of source code that are part of the Java software platform used by third- party software developers to write applications for computers, tablets, smartphones, and other devices running Java. Amicus Microsoft Corporation ("Microsoft") is a leading innovator in computer software, and has spent nearly forty years creating software platforms for application developers, including the well-known Windows operating system. Amicus EMC Corporation ("EMC") is the world's largest provider of storage systems, software, and solutions that help customers store, manage, protect and analyze information and data in a more agile, trusted and cost-efficient way. Amicus NetApp, Inc. ("NetApp") is a NASDAQ-100, Fortune 500 technology company with a twenty-year history of innovation in operating systems, data management and other software markets.

The district court's holding that critical elements of the software platform at issue in this case are not copyrightable at all is the product of several significant errors of copyright law. In particular, the court failed to appreciate the key distinction between the threshold question of what is copyrightable (which, as the Supreme Court has made clear, is subject to an exceedingly low bar) and the role

of separate doctrines to determine when a valid copyright has been infringed. If allowed to stand, the district court's ruling would upset settled expectations and harm incentives for innovation in the software industry.

Microsoft's mission is to enable individuals and businesses throughout the world to realize their full potential by creating technology that transforms the way people work, play, and communicate. Microsoft develops, manufactures, licenses, and supports a wide range of programs and services, including Windows, Microsoft Office and Microsoft Office 365, Xbox and Xbox Live, and Bing. Microsoft invests billions of dollars in research, development, and promotion of new technologies, products, and services, and competes vigorously in dynamic technology markets.

EMC is a global leader in enabling businesses and service providers to transform their operations and deliver information technology as a service. The company manufactures, develops, and sells a comprehensive, best-of-breed portfolio of data storage systems and software, security management software, and, through its majority equity stake in VMware, Inc. ("VMware") is the leading provider of virtualization and virtualization-based cloud infrastructure software solutions. EMC employs approximately 60,000 people around the globe, including thousands of software developers, invests billions of dollars in research and development annually in information technology solutions, and earns billions of

2

dollars annually in software revenue from products related to the company's information infrastructure and VMware virtual infrastructure portfolio. EMC's leadership and investment in innovation are exemplified by the company's ranking as one of the ten largest software companies in the world, its standing as one of Thomson Reuters' Top 100 Global Innovators in 2012, and its top ten, ranking on the Patent Board's Information Technoloty industry scorecard.

NetApp is a leading vendor of innovative storage and data management solutions that form the foundation for efficient and flexible information technology infrastructures. NetApp's products include, amoung many others, storage systems -- such as its fabric-attached storage (FAS) and E-Series product lines that help customers streamline operations and lower the cost associated with storing and managing their data␣and operating system software -- such as the Clustered Data ONTAP® system, based on NetApp's patented WAFL® technology. NetApp's tradition of innovation, particularly in the software industry, is further reflected in not only its robust intellectual property portfolio, but also by its recognition as one of the World's Most Innovative Companies (Forbes), a Top 300 Patent Holder (Intellectual Property Owners Association), and the owner of one of the top quality portfolios in its industry (IEEE Spectrum).

Amici are all keenly interested in both preserving settled copyright law and sensibly resolving new issues, in order for the domestic intellectual property

3

regime to function fairly, efficiently, and predictably. And amici are well-suited to address the broader legal, economic, technological, and social implications of the important question presented by this case in particular. On the one hand, amici have relied on copyright protection to help develop and license some of the most successful software products in history. On the other hand, amici are among the world's largest users and licensees of copyrighted works, including software, and have a longstanding strategic interest in preserving room for legitimate reverse-engineering, competitive analysis, and innovative follow-on development of existing software. Amici have customers with the critical need for their products to interoperate effectively with products provided by other vendors, including those provided by other amici. Toward this end, amici must be able to carefully and securely control deployment of their own copyrighted works, and at the same time be able to use systems, platforms, infrastructures, and solutions built from connectable offerings provided by multiple vendors. Further, amici actively use, contribute to, and sponsor open source projects.

Amici regularly play the role of both parties to the business transaction at the heart of this case: like Oracle America, Inc. ("Oracle"), amici have created and maintain numerous technological ecosystems for third-party developers to work in; and like Google, Inc. ("Google"), amici frequently seek to interoperate with and build on innovations created by others, whether through software licenses or by

4

reusing facts, ideas, and other elements of existing works that are not protected by copyright law. Amici frequently compete and collaborate with each other and other vendors, in relationships defined in part by established copyright law.

Although amici do not take a position on the ultimate question of whether the software packages at issue in this case are copyrightable and whether any copyright has been infringed, amici urge this Court (1) to hold that the district court's copyright analysis was fundamentally flawed and (2) to decide this case in light of the settled copyright principles discussed below.2

INTRODUCTION AND SUMMARY OF ARGUMENT

Congress has determined that computer software is eligible for copyright protection. 17 U.S.C. § 101. Copyright protects computer software in several important respects. It covers the literal lines of code that comprise software, generally preventing their reproduction or distribution without permission from the rightsholder. But copyright also covers certain non-literal elements of the software as well. For example, the "structure, sequence, and organization" of a software product -- above and beyond the 1s and 0s that make up the program at its literal level or the exact words of the human-readable source code -- can, in some instances, be protected by the copyright in the work. As a result, copyright infringement in a software case can occur even when the defendant did not copy

5

the underlying developers' code, where the defendant has copied some other, non-literal element of the software subject to copyright protection.

There is a critical difference, however, between the ultimate question of whether copyright in a software product has been infringed, and the threshold question of what elements of a plaintiff's software may be copyrighted in the first place. These two questions implicate substantially different principles of copyright law and considerations of innovation policy. "The sine qua non of copyright is originality," and only a "modicum of creativity" is required for a work to be sufficiently original to qualify for copyright protection. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345, 346 (1991). As the Supreme Court stressed in its seminal decision in Feist, "the originality requirement is not particularly stringent." Id. at 358. Under settled doctrine, a court must look not just to whether individual elements of a work merit protection when viewed in isolation, but also to whether they reflect copyrightable creativity when viewed in the aggregate, as an original collection of independent elements -- even if each element would be unprotectable on its own.

At the same time, just because a work (or combination of elements) is copyrightable does not mean that copying it will result in a finding of infringement. For example, concepts like the fair use doctrine, the requirement that works be "substantially similar" in order to be infringing, and the merger doctrine all

6

sanction an appropriately broad and flexible range of competing and complementary innovation based on or inspired by any existing software product. Copyright law thus balances the need to incentivize a first-mover's independent creation with the need to allow follow-on users to innovate in their own right.

The district court below fundamentally erred in reaching its conclusion that the Java software packages Google admittedly copied are not copyrightable at all. The court failed to distinguish between cases addressing infringement and cases addressing copyrightability in the first instance. It failed to properly apply the low originality standard the Supreme Court has prescribed. And it failed even to consider whether any collection of elements in the Java software platform -- including the names of its methods and classes, the organization and hierarchy of its packages and their constitutive parts, and the selection of features in and across packages -- represents a copyrightably original combination.3 Instead, the court applied an atomistic test of its own creation that considered the copyrightability of each discrete component of Oracle's software packages separately, as if it were

7

analyzing the copyrightability of a book by considering each word alone, rather than in concert with the surrounding ones.

That decision sets a dangerous and ill-advised precedent. Under established precedent, sufficiently original software packages like those in the Java platform certainly may be copyrightable, preventing free-riders from replicating their precise structure and suite of features. Yet the district court's reasoning leaves no room for that result -- not only in this case but on virtually any facts. To be clear, amici do not suggest that those elements of every computer program are copyrightable, or that copyright in Oracle's Java platform would prevent second-comers from using the platform to foster further software development or create competing products. Even for copyrightable platforms and software packages, the determination whether infringement has occurred must take into account doctrines -- like fair use -- that protect the legitimate interests of follow-on users to innovate. But the promise of some threshold copyright protection for platforms like Java specifically and other elements of computer software generally is a critically important driver of research and investment by companies like amici -- and rescinding that promise would have sweeping and harmful effects throughout the software industry.

This brief focuses on the legal errors the district court committed in analyzing copyrightability and the damaging implications for innovation policy

8

that would result from its copyrightability ruling. Amici do not address the ultimate question of whether the software packages at issue are copyrightable under the proper legal analysis, whether this Court should reverse outright or remand for reconsideration in light of the proper legal analysis, or the merits of Google's "fair use" defenses or other issues concerning infringement vel non.

ARGUMENT

I. THE DISTRICT COURT'S HOLDING THAT THE JAVA
  PLATFORM   WAS   NOT   COPYRIGHTABLE   AT   ALL   WAS
  FLAWED   AS   A   MATTER   OF   COPYRIGHT   LAW   AND   POLICY,
  AND  WOULD  DESTABILIZE  THE  SOFTWARE  INDUSTRY

Copyright protects all the elements of a work that satisfy the Supreme Court's "modicum of creativity" standard. See Feist, 499 U.S. at 362; Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir. 2001); Urantia Found. v. Maaherra, 114 F.3d 955, 959 (9th Cir. 1997). The originality standard is "extremely low" -- "even a slight amount [of creativity] will suffice." Feist, 499 U.S. at 345. This bedrock principle applies no less to the copyright in a work of computer software than any other type of work. See, e.g., Softel, Inc. v. Dragon Med. & Scientific Commc'ns, Inc., 118 F.3d 955, 964 (2d Cir. 1997) (applying the Feist copyrightability analysis to computer software); Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994) (same). Computer software can be copyrightably original even if some of its constitutive building blocks are not copyrightable in their own right. Indeed, "[i]n Feist, the Court made quite clear that a compilation of non-

9

protect[a]ble elements can enjoy copyright protection even though its constituent elements do not." Softel, 118 F.3d at 964.

A. The District Court Misapplied And Disregarded Basic Copyright
Principles

The district court in this case lost sight of these principles. First, it analyzed copyrightability not by looking to the plaintiff's work as a whole, but instead by considering only the portion of the plaintiff's work that Google admittedly copied. See Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d 974, 997-98 (N.D. Cal. 2012) (addressing only the 37 software packages that Google copied, not the 166 that Java contains). This mode of analysis is backwards. Under both prevailing doctrine and common sense, assessing copyrightability requires examining the allegedly infringed work in full. See Softel, 118 F.3d at 964; Boisson, 273 F.3d at 269-71; Apple Computer, 35 F.3d at 1442. Once a court has determined that a plaintiff's copyright is valid and relevant, it can and should turn its attention to the defendant's copycat work to decide whether any infringement has occurred. See Apple Computer, 35 F.3d at 1442. But by examining only the part of the allegedly infringed work that tracks part of the allegedly infringing work, the district court failed to consider whether and to what extent the allegedly infringed work, in total, merits copyright protection. The court thus proceeded from the wrong baseline from the very start in deciding copyrightability.

10

Second, the district court failed entirely to consider whether the software packages in the Java platform are copyrightable as an original collection and organization of discrete elements, irrespective of whether each discrete element is copyrightable in its own right. See Softel, 118 F.3d at 964. That by itself was reversible error. As the Second Circuit has taken pains to explain "'[a]n original arrangement of uncopyrightable or public domain works -- even facts -- is as copyrightable as a compilation in the computer context as it is elsewhere in copyright law.'" Id. (quoting Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated Works: Is Anything New Since CONTU?, 106 Harv. L. Rev. 977, 1003 (1993)); see also Apple Computer, 35 F.3d at 1445 ("[O]riginal selection and arrangement of otherwise uncopyrightable components may be protectable.").

The district court neglected to consider the relationships among the 166 packages in the Java platform and the methods they contain, and the particular selection of features and functions they include, in the particular hierarchy in which they are embedded. Instead, the district court excised discrete elements of the platform and assessed them individually and in isolation. It concluded that because names and short phrases generally are uncopyrightable independently, all of the names in Java's thousands of methods (no matter how they were identified, selected, arranged, and deployed by Oracle) were unprotected. 872 F. Supp. 2d at

11

999. It concluded that "[f]unctional elements essential for interoperability are not copyrightable," and erroneously extended that conclusion to find that not a single such element could contribute to the copyrightability of the Java platform as a whole. Id. at 997. And it (apparently) concluded that elements of the platform could not be protected by copyright under the "merger" doctrine, so excluded them from the copyrightability analysis. Id.

The impermissibly stringent originality standard imposed by the district court is reflected in its discussion of American Dental Ass'n v. Delta Dental Plans Ass'n, 126 F.3d 977 (7th Cir. 1997). See Oracle, 872 F. Supp. 2d at 998-1001. Delta Dental concerned a taxonomy categorizing a pre-existing set of dental procedures, not the copyrightability of computer software or of any originally selected set of previously unconnected elements in general. As Delta Dental itself explains, a "taxonomy" (in the copyright sense) reflects no creativity in the selection of elements it includes; by definition, a taxonomy is simply an attempt to comprehensively categorize a field. See 126 F.3d at 980. The only potentially copyrightable originality in a taxonomy is in the organization and arrangement of its pre-defined constitutive parts. Generally speaking, taxonomies therefore present a much harder case for establishing copyrightability than does computer

12

software.4 The Java platform contains a category of creative originality not present in a taxonomy: the choice of what to include in it. The district court's lengthy attempt to distinguish the reasoning in Delta Dental thus reveals the flawed premises underlying its copyrightability analysis.

The district court also surveyed cases such as Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) and Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 1992). See Oracle, 872 F. Supp. 2d at 993-94. These are certainly canonical software copyright opinions -- but they do not concern the question whether works like the Java packages are effectively unprotected by copyright altogether. Instead, they deal with software works that are plainly protected, and address whether a second-comer infringed the rightsholder's copyright interest by borrowing more than was permissable for a follow-on use. See Sega, 977 F.2d at 1514 (considering whether reverse-

13

engineering copyrighted software amounted to "fair use"); Atari, 975 F.2d at 844 (same).

Cases that the district court ignored are more instructive for the threshold question of copyrightability raised here. For example, the district court overlooked Softel and Apple Computer, both of which extensively discuss the copyrightability of critical elements of computer software, and even Boisson and Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127 (2d Cir. 2003), which concern copyright protection for compilations of unprotected elements in the context of tangible goods such as quilts (Boisson) and rugs (Tufenkian). Generally speaking, complex, highly developed computer software is plainly copyrightable under the principles these cases apply.

In creating the Java platform, Oracle did not simply categorize some pre- existing set of method names, software features, or API packages.5 Instead, it compiled its own chosen collection of names, and features, and packages into a work of software, with a particular organization and set of hierarchies, of its own selection and design. See Appellant␣␣ Br. at 24-25. Even if each individual element of that work is not protected by copyright in isolation, the copyrightability

14

analysis mandated by long-settled precedent requires an additional examination of the originality of the work as an aggregation of all of its elements. The district court failed to conduct that analysis.

B. The District Court's Copyrightability Ruling Would Upset Settled
Expectations And Harm Incentives For Innovation

Affirming the district court's ruling on copyrightability would needlessly undermine the foundation on which extensive and widely beneficial licensing ecosystems have been built throughout the software industry. Creators of software platforms␣from proprietary operating systems like Microsoft Windows, NetApp's Clustered Data ONTAP, and EMC's Enginuity and OneFS to open source platforms like Linux -- all depend on copyright as the lynch-pin of their operation. "Like other information goods, software platforms are ... reproducible at virtually no cost." David S. Evans, Andrei Hagiu, and Richard Schmalensee, Invisible Engines: How Software Platforms Drive Innovation and Transform Industries 79 (2006). Yet they "create value by reducing the costs for their multiple customer groups to come together and thereby enhance the value each customer group delivers to the other. They do this mainly through providing shared services -- made available through APIs -- that reduce the costs for developers and users." Id.

Copyright licensing thus provides the solution for a dilemma faced by software platform creators: how to provide those "shared services ... through

15

APIs" to users without enabling threats to the purposes and goals of that platform. The lessons from the open source experience are instructive:
The proponents of open-source software faced a problem. On the one hand they wanted to make open-source software widely available. That meant that they did not want to use copyrights, patents, or trade secrets to limit the distribution of open-source programs. On the other hand, they wanted to make sure that commercial enterprises could not free-ride on the efforts of the open-source community by making minor changes or additions to open-source programs but then enforcing their own intellectual property rights on the entire modified programs. The General Public License (GPL) was an ingenious solution to this dilemma.... Despite the copyleft name, the GPL is enforced by copyright law. Copyright is the source of the property protection that enables those who release software under a GPL to impose conditions on others who obtain that code.
Id. at 74 (emphasis added).

The chief legal reason why users must abide by the terms of the General Public License, or the Mozilla Public License, or any open-source license, is that failing to do so exposes the violator to potential copyright liability. See Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008); Natasha Horne, Note & Comment, Open Source Software Licensing: Using Copyright Law to Encourage Free Use, 17 Ga. St. U. L. Rev. 863 (2001); Greg R. Vetter, The Collaborative Integrity of Open-Source Software, 2004 Utah L. Rev. 563, 574. By the same token, the reason why companies like amici are able to maintain open platforms for third-party developers is that they can count on copyright as the primary mechanism for

16

enforcing a consistent set of practices that maximize productivity, interoperability, and distributed innovation.

Without copyright, amici and similarly situated companies would be forced to retrench and only disclose information about their computer programs to users and developers in more restrictive and costly ways, to prevent harmful misappropriation of their innovation or threats to the integrity of the platform. That would strike a devastating blow to innovation in the software industry, cross-industry collaboration and ultimately to downstream consumers.

The district court purported to limit its copyrightability ruling to the "specific facts of this case." Oracle, 872 F. Supp. 2d at 1002. But if the software packages in the Java platform -- a sophisticated, complex, and successful programming interface -- are not "copyrightable in the first place," id. at 997, then it is difficult to conceive of what platform would qualify for copyright protection under the decision below. That is particularly true given that the district court's analysis of copyrightability essentially disregards any consideration of whether software work is copyrightable as an original collection and organization of discrete elements, irrespective of whether each discrete is copyrightable in its own right. In any event, the message of the decision below will be loud and clear when it comes to the impact on innovation for firms or individuals investing or engaged

17

in the development of software in this vitally important area -- in which the United States has led the world in innovation.

II. COPYRIGHT   LAW   ACCOUNTS   FOR   THE   FREEDOM   TO
  INNOVATE   WITH   FOLLOW-ON   CREATIONS   THROUGH
  DOCTRINES   THAT   ARE   MORE   EFFECTIVE   AND   BALANCED
  THAN THE DISTRICT COURT'S ALL-OR-NOTHING   APPROACH
  TO  THE  COPYRIGHTABILITY  OF  SOFTWARE  PLATFORMS

  Recognizing a copyright in the Java platform would not necessarily mean that Google's conceded copying would amount to infringement. That determination depends on a second level of analysis that considers venerable copyright doctrines such as fair use, the requirement of substantial similarity for infringement, and the principle of idea/expression "merger." Those doctrines can -- and regularly do -- vindicate legitimate concerns about the freedom to innovate and build competitive software products. They do so, however, in a more robust and balanced way than the district court's flawed, all-or-nothing approach to the threshold question of whether Oracle's software was copyrightable at all.

Amici are strong supporters of the settled exceptions and limitations to copyright protection. Legal principles that preserve competition and facilitate follow-on innovation by constricting the scope of copyright protection are both necessary and plentiful in U.S. copyright law. They include, among others:

  • The fair use doctrine (see 17 U.S.C. § 107);

18

  • The principle that bare methods of operation are unprotected ab initio (see 17 U.S.C. § 102(b));

  • The merger doctrine (see Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 706 (2d Cir. 1992)); and

  • The rule that copyright protection does not extend to portions of a work that are the creation of someone other than its author, including but not limited to scenes à faire (see Softel, 118 F.3d at 964).

These are just some of the conventional limitations and exceptions in copyright law relevant to the particular circumstance of this litigation.

Courts regularly invoke these principles to find that reuses of significant portions of copyrighted works of computer software are permissible, particularly where the reuse is intended to achieve interoperability between existing computer programs and new programs and technology the defendant developed. For example, inSony Computer Entertainment, Inc. v. Connectix Corp. , 203 F.3d 596, 608 (9th Cir. 2000), the Ninth Circuit found that it was "fair use" for a follow-on innovator to reproduce the copyright-protected portions of a work of computer software in order to reverse-engineer elements of the work that fell outside the scope of copyright protection. In the same vein, in Lewis Galoob Toys, Inc. v. Nintendo of America, Inc., 964 F.2d 965, 971 (9th Cir. 1992), the Ninth Circuit held it was fair use for consumers to use a third-party, add-on product to alter the copyright-protected displays of Nintendo video games. And in Sega, 977 F.2d at

19

1526, the court of appeals concluded that fair use permitted copying plainly protected software object code specifically to create competing products. The list goes on. 6

As these cases show, the fact that a work of computer software is copyrightable in the first instance does not mean that no one can make a competing product, or a product that invokes similar tools and methods, or a product that interoperates with or performs a similar set of functions as a copyrighted software work, or a product that builds on the state of the art to offer users a newer and better experience. And as vigorous competitors in numerous software markets, amici would not have it any other way. The district court was therefore quite wrong in saying that, "[t]o accept Oracle's claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own or different versions to carry out all or part of the same commands." Oracle, 872 F. Supp. 2d at 1002.

20

The fact that a work of computer software is protected by copyright does, however, mean that the range of permissible follow-on uses is shaped by centuries␣ worth of copyright law principles. These doctrines form the legal backdrop against which software development takes place. To hold that copyright protection simply never attaches to software platforms at all would be to replace that deep well of nuanced (if occasionally contestable) legal rules and principles with nothing. It would be to throw away the long-evolving, largely balanced approach to technological innovation that copyright law has settled into after generations of wrangling and accounting for novel developments in new contexts. These rules are not perfect, but they are flexible and they are known, and companies and business practices have grown up in reliance on them, including in the software industry.

Amici express no view on whether Google's challenged conduct ultimately amounts to infringement, factoring in "fair use" and other limiting principles. Instead, amici simply stress that there exists a robust array of doctrines that allow courts to balance the competing interests of incentivizing innovation in the first instance, and permitting legitimate and necessary subsequent competition and innovation. The district court's apparent attempt to use copyrightability -- along -- as an all-purpose tool to achieve those complex and subtle goals, see 872 F. Supp. 2d at 1001-02, was contrary both to existing law and to sound policy designed to protect and foster innovation in this vital area. The court's ruling, if allowed to

21

stand, will deal a serious if not potentially staggering blow to the existing incentives established by copyright law for innovation in this critical industry.

CONCLUSION

For the foregoing reasons, amici urge this Court to hold that the district court's copyrightability analysis was erroneous, and to resolve this case in accordance with the settled legal principles discussed above.

February 19, 2013

Respectfully submitted,

/s/ Gregory G. Garre
Gregory G. Garre
Principal Attorney
Lori Alvino McGill
LATHAM & WATKINS, LLP
[address, phone]
Counsel for Microsoft Corporation

Paul T. Dacier
Krishnendu Gupta
EMC CORPORATION
[address, phone]
Counsel for EMC Corporation

Douglas Luftman
NETAPP, INC.
[address, phone]
Counsel for NetApp, Inc.

____________
1 No party's counsel authored this brief in whole or in part. No party, party's counsel, or any person other than amicus or its counsel contributed money intended to fund preparing or submitting this brief. See Fed. R. App. P. 29(c)(5).

2 The parties have consented to the filing of this brief.

3 As Oracle's opening brief explains (at 21), the terminology used in the case is confusing. The Java software packages at issue here are called "Applicsataion Programming Interfaces," or "APIs." The term API is used in the software industry to describe a wide range of things, some of which are very simple and some of which are very complex, and each of which has different purposes and context. To provide clarity, amici refer to the computer programs here as "software packages" or "platforms". Amici do not address APIs beyond the computer programs at issue here.

4 Nevertheless, even taxonomies may be copyrightable. And, indeed, Delta Dental found the taxonomy at issue in that case sufficiently original to be copyrightable -- though other courts to consider the copyrightability of taxonomies have reached different results. Compare Delta Dental, 126 F.3d at 979 with Southco, Inc. v. Kanebridge Corp., 390 F.3d 276 (3d Cir. 2004) (en banc) (numbering system used to categorize manufacturer's product suite of screws and fasteners not copyrightable) and ATC Distribution Group, Inc. v. Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005) (system of organization in automobile transmission parts catalogue not copyrightable).

5 Sun Microsystems of course was the party that actually created the Java API. We use the term "Oracle" here for ease of reference, given that Oracle Corporation acquired Sun and renamed it Oracle America, Inc.

6 In contrast to these cases, in the present litigation, the "compatibility" that Google sought to leverage was not with Oracle's platform itself, but instead with developers' pre-existing experience and comfort with Java. See Appellant's Br. at 65-66. In other words, though each of the precedents discussed here concerns a situation in which copying plausibly redounded to the benefit of the original platform creator, there is no analogous benefit to Oracle in this case, since Google copied Java purely in the interest of making its own competing product.

22

CERTIFICATE OF COMPLIANCE

[See PDF]


  


Amicus Briefs in Oracle v. Google and Microsoft's, as text ~pj | 115 comments | Create New Account
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The Corrections Thread
Authored by: ais523 on Friday, March 01 2013 @ 01:12 AM EST
In case PJ has made a mistake. Put a summary of your correction in the title of
your post, so that people can more quickly check if they're submitting a
duplicate.

[ Reply to This | # ]

Newspicks Thread
Authored by: hardmath on Friday, March 01 2013 @ 03:15 AM EST
Please include a link to the newspick article (posted in HTML)
for any new subthreads opened here.


---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Off-topic Thread
Authored by: hardmath on Friday, March 01 2013 @ 03:19 AM EST
The strange, the bizarre, the truly misplaced discussions
which constantly break out here at Groklaw... such as Calvin
Klein's new line of Amicus Briefs. Help him by suggesting Ad
Campaign taglines.

---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Comes Transcripts
Authored by: hardmath on Friday, March 01 2013 @ 03:27 AM EST

For more information about How to Help, click here.

Moderate length documents can be posted here as HTML format but in Plain Text mode, so PJ can copy-and-paste. Longer documents can be emailed to PJ using the link at left.

---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Why do they care?
Authored by: stegu on Friday, March 01 2013 @ 04:08 AM EST
Why does MS care about this? Well, now that MS has been forced to document their
APIs for interoperability reasons, and patent protection of vaguely worded ideas
and concepts seems to be on its way out behind the barn to be shot, they
desperately want to make the same land grab with copyrights. Neither MS nor
Oracle has much creative power left in them, and they are desperately trying to
prevent others from overtaking them in their traditional business areas by
measures other than making good products that are worth their price.

The copyright card was first played through SCO as a proxy, but it failed.
Patents proved to be super effective for while, but now that greed has driven
them to silly and stupid lengths to protect everything you can possibly do
"on a computer" and they are losing their undeserved and ill-gotten
privileges, they are back to trying to salvage their original plan.

It's annoying, but to me, the current situation is a clear sign that the
dinosaurs are losing and gripping for straws. I'm hopeful. This is playing out
nicely for everyone in the world except for a few large corporations that are
much too set in their old ways. Their business will continue to prosper, only
with them having a much smaller part of it for themselves.

[ Reply to This | # ]

Try not to have a stroke when you read it
Authored by: Anonymous on Friday, March 01 2013 @ 07:22 AM EST

Maybe that's the aim, to cause all of us to drop dead from shock.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Amici briefs
Authored by: maroberts on Friday, March 01 2013 @ 09:55 AM EST
Does Groklaw as a body have a right to submit amici briefs, explaining why the
others are misleading?

[ Reply to This | # ]

Misappropriation
Authored by: Anonymous on Friday, March 01 2013 @ 12:07 PM EST

Nobody puts the GPL license on software to prevent "misappropriation of their innovation".
Actually, that was a prime concern for myself in choosing the GPL over BSD license. It really depends how you end up defining "misappropriation". If you use a more generic definition, it fits:
    To use someone's copyrighted product under one of the few rights reserved by Law to the copyright holder against the copyright holders permission.
So while MS is free to change BSD code, wrap it in a binary, and license that for a cost to others - I don't view that as acceptable behavior as applied to my code. So in that sense - using the GPL as protection against misappropriation is reasonable.
It's the entire point, to share knowledge so others can build on it.
I choose it for that reason too :)

RAS

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Microsoft is funny
Authored by: Anonymous on Friday, March 01 2013 @ 12:43 PM EST

IANAL, the fun below is just what I've learned relative to Copyright Law and MS.

On the other hand, they wanted to make sure that commercial enterprises could not free-ride on the efforts of the open-source community by making minor changes or additions to open-source programs but then enforcing their own intellectual property rights on the entire modified programs.
Ahh - the amusing disconnect. Someone making "de minimis" use of a work is one thing - and not necessarily anywhere near the same as someone making "quite heavy" use of a work. If MS Lawyers actually believe making huge changes to a work (thereby potentially creating a new work) is synonymous under Copyright Law as someone making a minimal change to a work and treating that as "a new work":
    I'd seriously recommend MS find new Lawyers
Or even comparing MS' preference of making a minimal change and then using the full work with what Google appears to have done by creating a very small subset of the Java API calls for interoperability and making a completely brand new work otherwise as synonymous - HAH!

Of course, no one - not even MS themselves would be thrilled if someone took their work, made a minimalist change and then sold it as though it was a full original of the copier.

Copyright is the source of the property protection that enables those who release software under a GPL to impose conditions on others who obtain that code.
Tough condition:
    I, the copyright owner, will grant you a non-exclusive license to make use of the normally restricted rights of Copyright Law associated with making and distributing the work
in exchange:
    I, the copyright owner, will require of you the decency not to hide the source code and to make sure it's available
Hmm... an allowance of copying and distribution while requiring the source code is not hidden... that's a mighty tough trade to comply with ;)
The chief legal reason why users must abide by the terms of the General Public License, or the Mozilla Public License, or any open-source license, is that failing to do so exposes the violator to potential copyright liability.
I would say that's equally true of EULAs.

It sure is tough to deal with most open source licensors though.

Instead of following the regular practice and accepting money along with a new license grant to "cure" the breach - there's so many of us who are masochistic enough to want nothing more then compliance with the license. Oh woe the Corporation who wants to ignore the license and do what they want anyway... most of those evil FLOSS peoples want compliance instead of money.... how can they possibly put food on the table by giving away their product and not accepting money?

Ok, enough facetiousness... time to find something else to do :)

RAS

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Oracle using the same law firm as SCO
Authored by: esni on Friday, March 01 2013 @ 12:49 PM EST
Please remember what happended to SCO

Perhaps somebody would like the same to happen to Oracle?

---
Eskild
Denmark


[ Reply to This | # ]

Another stab at intro to practical APIs.
Authored by: Anonymous on Friday, March 01 2013 @ 02:00 PM EST
An API defines a division of labour, but it doesn't define how the labour is
carried out.

Consider the classic "calculator problem" where a string of concrete
numbers and operators are going to be supplied as input and a single number is
going to be output. e.g. "5 * 5 + 2" goes in, and "27" comes
out.

An outer API might be "result DoCalculation(input);".

Alternately a detail API might have "result ReduceMultiplication(input);
result ReduceAddition(input);".

The former API is sort of fire-and-forget in that the entire set of operations
goes off at once and you just get your "27". The latter API would,
when invoked properly, give you "25 + 2" after reducing the
multiplication and then finally "27" after reducing the remaining
addition.

In _neither_ case is the activity performed in each step called out. It is
strongly inferred, but it is not "defined". For instance if you called
ReduceAddition("5 * 5 + 2") you should get the string back unchanged
because the addition is _not_ _reduceable_ if the multiplication is still
pending.

[ASIDE: a "broken" implementation of the API might end up returning
"5 * 7" if you reduced by addition while the multiplication was still
pending.]

So why might one want the latter API? In most cases one would not, but in a
teaching context --- particularly one where you are teaching mathematical order
of operations --- the intermediate values would be interesting and valuable.

[ASIDE: the "5 * 7" result might _not_ be broken if you are teaching
mathematical order of operations and you _want_ the system to return incorrect
results for incorrect --- badly ordered etc --- applications of the calls. That
is, the math would be "bad" but you might want to be able to show the
results of "bad math" as a _feature_ of the code.]

So back to the overarching issue...

APIs are the explicit boundaries between code, and they constitute a set of
promises about what labour will happen "behind the curtain" of the
various calls. An API is the assertion "I'll handle this for you".
It's a set of exactingly specified promises. Some of those promises are _not_ in
the code, but instead they lie in the documentation. For instance the
expected/promised result of ReduceAddition("5 * 5 + 2") being either
"5 * 5 + 2" or "5 * 7" is a promise made not by the coding
of the API entry, but by a set of intangible rules --- e.g. plain english word
promises of I will or I won't protect against violations of orders of operation
--- that must accompany the actual machine-readable code.

Those non-code promises can be simple in appearance reading something like
"order of operations will be/not-be protected" or strongly inferred by
other code entries like "void ProtectOrderOfOperatons(true_or_false)"
that could then turn that promise on or off at runtime.

Since the API doesn't _do_ anthing, but it does explicitly define who is
responsible for doing what, the names of the API are sacrosanct to the function.
If I renamed the three functions above as DoA(), DoB(), and DoC() they would be
stripped of meaning. Which function is which? What labour does each promise the
programmer?

Worse, even if I then go on to say that DoA() is identical to
ReduceMulitplicaiton(), all the code that calls ReduceMultiplicaiton() woudl
have to manually edited to replace the later text with the former.

So an API is not the function performed, but the well formed promise of
function.

As legal speak, suppose someone offered a contract full of defined terms. Then
that someone said that everybody could use that contract and those defined terms
as defined in some large number of follow-on contractual dealings.

Then suppose someone took up that offer and use all those terms as defined and
then the first party said "we own all those terms and you cannot use our
definitions because of copyright; yea sure we offered our sheet of definitions
for public use; but you didn't even take the effort to substitute different
words or shuffle them around into different places so you violated our
copyright!"

In computer science we use two words "declare" and "define"
when talking about elements of an API. A declaration is a statement that
something exists. "result ReduceAddition(input)" is a declaration. It
promises that a function with that name exists and will perform the action
associated with the name. The definition of that function would be the actual
source code comprising all the steps, in order, necessary to implement the
declared function.

So the API-to-contract example is even less protection worthy. The initial
offering declares that there is this list of words that _someone_ will have
define. The initial offering party also has made up a set of definitions for
everyone to use. The other party comes by and says "we have completely
defined all those words too, and our definitions are compatable, so you can work
with us too."

So if Webster and Oxford sued each other for "copying" each other's
dictionaries because the same list of words were defined --- even thought the
definitions were all independently written and not identical --- we would have
this case in a nutshell.

Oxford complaining that all the words in Websters were arranged the same way
(alphabetically) and with the same structure (word first, in bold, then
pronunciation, then by part of speech, with numbered texts) would be weak sauce
indeed.

But there you have it. The definitions (actual code) are completely different
but the order and structure are the same so it was copying...?

Clearly Webster _could_ have reordered their words, sorting them by first vowel
instead of first letter; or putting all the nouns in first, then the adjectives
and so on. Indeed they could have, but that would have been ridiculous and the
opposite of useful.

So too all of Oracle's clams about order and structure and organization...

What's the line from The Devil's Advocate? Look but don't touch... Touch, but
don't taste... one stupid assertion at a time they keep trying to move the
obviously unworkable legal theory so far into left field that its hard to say
why it's so wrong, in hopes that that difficulty will make people feel like
maybe they have something right.

[ Reply to This | # ]

Apple Award Cut With New Trial for Some Samsung Products
Authored by: Anonymous on Friday, March 01 2013 @ 04:47 PM EST
Surprised this hasn't been commented on before, I'm sure I'm missing something... but a new(?) story on Bloomberg.

U.S. District Judge Lucy Koh in San Jose, California, today reduced the jury’s damages award by $450.5 million and said Samsung deserves a new trial on infringement claims over its Galaxy Prevail and other smartphones.

[ Reply to This | # ]

How will the Federal Circuit react to these briefs?
Authored by: macliam on Friday, March 01 2013 @ 07:08 PM EST

Disclaimers: I am not a lawyer. Since the CAFC decision on In Re Bilski was covered on Groklaw, I have been following patent blogs, and reading CAFC and SCOTUS decisions relating to patent law, and have read and re-read relevant CAFC and SCOTUS opinions repeatedly to get the sense of them. When a new patent case is decided and looks interesting, and is covered on patent blogs, I generally click on the link to check out the CAFC opinion. But I was reading Groklaw long before that, following the SCO v. IBM and SCO v. Novell stories.

Within the past few hours I have read Oracle's petitioner brief to the CAFC. Who do they think they are writing for? I have also skimmed the Microsoft amicus brief reproduced in the blog posting

I would be very surprised if the Oracle brief impressed the CAFC panel. I think it is fair to say that the CAFC have a very formalistic approach to the law, especially patent law. They are experts in exegesis of the intricate formal language of patent claims, and will focus on the possible meanings of every single word of a patent claim. In patent litigation they will pay attention to Markman hearings, and will review claim construction de novo and without deference (i.e., they will construe the claims themselves, and not defer to the rulings of the District Judge). They revel in rules and tests. Appeals like this one that are not directed to patent law or to claims against the Federal Government come their way from time to time. They are accustomed to adopting the precedent of the relevant circuit when determining matters outside patent law. They will not (I suggest) react positively to page after page of passionate appeal comparing the use of Java APIs with the activities of Ms Ann Droid. At the very least, I suspect that their reaction on reading it would be "Where's the beef?". They would have appreciated close legal argument setting out the precedents, the approaches taken by the various circuits when analysing software code under copyright law, and clear explanation of how case law reads on the case before them. Maybe Oracle are saving their main arguments for the rebuttal? From my initial reading the only Oracle case citation that seemed to read on API copyright status was Apple Computer. But I have yet to chase up that case.

However some of the judges (including in particular Chief Judge Randall A. Rader and Judge Pauline Newman) view the fundamental principles of patent law from a perspective that is the intellectual legacy of the late Judge Giles S. Rich who (as a patent attorney) was closely involved in the drafting of the 1952 Patent Act, and who, towards the end of his life, crafted the controversial opinions in Alappat and State Street that opened the floodgates of patent eligibility to methods for training janitors to dust and clean, methods for indicating dating status through coloured bracelets, methods for exercising cats, and the like. These judges fervently believe that, in the Information Age, all forms of useful information, data processing methods, mathematical algorithms etc. should be patent-eligible, provided only that such things lead to a useful, concrete and tangible result and are "novel" and not "obvious" as those terms of art are defined by Sections 102 and 103 of Title 35 of the United States Code. I note that, in a speech at an event in the Eastern District of Texas (which developed a reputation as patent troll heaven), Chief Judge Rader made reference to "Trolls and Grasshoppers". Grasshoppers, apparently, are those who don't make efforts to license the intellectual property they take advantage of until threated with a lawsuit.

The Federal Circuit is in a quandary with regard to the principles of patent-eligibility under Section 101. The Supreme Court, through its opinions in Bilski v. Kappos and Mayo v. Prometheus, has shredded virtually the entire corpus of Federal Circuit precedent used to determine whether claimed inventions are patent-eligible under Section 101. (And I get the impression that Justice Stephen Breyer, in his unanimous Mayo per curiam opinion, took pains to dispose of the case in a manner designed to flout all of the dicta that Judge Rich had employed to cabin Benson and Flook. It takes some subtlety to categorize a step of administering a standard medication to a patient as "informing an audience", when a vacated CAFC opinion was decided for patent-eligibility on the basis that the administration of the medication transformed the patient's blood, and therefore satisfied the machine-or-transformation test. And don't underestimate Justice Kennedy's opinion in Bilski which, but for two sections which Justice Scalia did not join, is the majority holding in this case. The opinion may seem understated but, on re-reading, it seems carefully crafted.) The Supreme Court has firmly established a line of cases, including Tatham, Morse, Funk Bros, Benson, Flook, Diehr, Chakrabarty, Bilski and Mayo that are governing precedent with regard to Section 101. The Supreme Court has made it plain that it considers these cases as mutually consistent with one another, and as constituting the foundation of Section 101 jurisprudence. The Federal Circuit is faced with the choice of either conforming to Supreme Court precedent by adopting an approach to patent-eligibility under Section 101 that is anathema to some of them, or else to fight a rearguard action to save as much of they can of their own philosophy. I think that the only shred of Federal Circuit precedent remaining is the holding, in Alappat, that a computer programmed with a software product is a "particular machine", and is thus manifestly patent-eligible provided only that the software produces a "useful, concrete and tangible result". The case CLS v. Alice Corporation that the Federal Circuit are rehearing en banc is in effect State Street II. The cases presented are very similar. If the dicta in Alappat are still good law (as Judge Newman seems to believe based on the oral transcript), then CLS v. Alice is patent-eligible under Section 101. But the Supreme Court is surely unlikely to approach the case in the same way.

So, back to Oracle v. Google at the CAFC. I wondered who the panel will be. I note that a petition for a writ of mandamus (concerning the Lindholm email) was denied by the CAFC in an order dated February 6, 2012. The petition was considered by Judges Lourie, Prost and Moore. Given that this panel dealt with the initial petition, is it likely that they would also hear the appeal? It seems that Judge Alan Lourie has a Ph.D. in Chemistry, and Judge Kimberley Moore has an M.S. in Electrical Engineering. Judge Sharon Prost seems to have been a lawyer acting in various capacities for the Federal Government before becoming a Circuit Judge. I think that it is clear that these judges will understand what an API is! (Thinking back to Judge Moore's interruptions at the oral arguments in CLS v. Alice, it may be that the purpose was to induce the lawyer to cut directly to the chase and not spend time going over positions expounded in the briefs.)

I suspect that the CAFC panel will be alive to the distinction between functional computer code and expressive text. There is a printed matter doctrine that denies patent-eligibility to printed matter on the grounds that such stuff is protected by Copyright Law. On the other hand, they will be very familiar with so-called Beauregard patent claims that claim a computer-readable medium recording computer software that, when loaded into a computer, causes the computer to carry out some claimed method. They hold that machine-readable code is not speech or expression of the sort that would be protected under the First Amendment etc. And given that it is treated as protectable under patent law, the functional aspects of the code that cause the computer to do what it does would not be protected under copyright law.

Maybe the Federal Circuit would welcome the opportunity to consider a case in Copyright Law (a part of Intellectual Property Law not normally within their remit) where there are no disputed facts, and a clear issue of law to decide on a matter that could set an important precedent? Whatever the outcome, I would expect the case to be disposed on the basis of legal principles and the theory of intellectual property law, and that the Federal Circuit will have little or no regard for amici who wax lyrical on the impact that a decision, one way or the other, would have on their businesses and activities.

[ Reply to This | # ]

Amicus Brief from Spafford, Ding and Hollar
Authored by: macliam on Friday, March 01 2013 @ 09:17 PM EST

Towards the end of the Spafford-Ding-Hollar:

If an API is written by an author trained in proper software engineering, safety, and security, the resulting API and code may support critical features and dependencies not explicitly described in the documentation. If someone else with less knowledge of the features and dependencies modifies the API (and the underlying implementation), it may introduce unanticipated vulnerabilities and instability. The versions (and stability) of the software may become fragmented and of uncertain reliability. Using the blueprint analogy given above, anyone not following the blueprint (e.g., putting in larger or extra windows) may cause unexpected failures ( e.g., wall collapse because of loss of load-bearing structure) because not all of the design requirements and responses are explicitly shown in the blueprint. By the same token, we believe that a software API should receive copyright protection to help prevent such failures in information systems.

But copyright is intended to protect non-functional creative expression! Arguing that good API design is important for functional reasons (helping to prevent failures in information systems) is making the case against copyright protection (especially when one takes into account the duration of copyright protection)

If the size of windows is immaterial (within limits) from a structural point of view, an architect can design a facade to suit whims and aesthetic values as she chooses. But if windows have to be of a certain size to accommodate panes of glass produced by a monopoly, or as a commodity of uniform size, then the aesthetic freedom and creativity of the architect is significantly constrained.

The brief claims that a justification in terms of interoperability with Java programs is irrelevant unless the device can interoperate with all Java programs. The logic of this escapes me. The GNU command line utilities would not escape copyright restrictions unless and until every single UNIX command had been implemented in GNU? The fact that a user could employ grep, awk, ps, ls, mv etc. is of no relevance or use unless every command (of Berkeley UNIX, or of UNIX System V, or of both) has been implemented in GNU?

Nevertheless this amicus brief contains a useful escription of what an API is. It does not address legal principle or case law, so far as I can see, but emphasizes the creativity and quantity of choice in designing a novel API.

[ Reply to This | # ]

Another API example: case citations
Authored by: macliam on Saturday, March 02 2013 @ 03:12 AM EST

A publishing firm, Opinions Inc., produces a series of law reports for some given jurisdiction, and develops a system of case citations, which they use in ordering and cross-referencing the opinions. The judges in that jurisdiction routinely make use of the publishing firm's case citations in order to cite precedent in their opinions. An organization, Utopia Law, creates an extensive series of commentaries on the cases. Opinions Inc. make the reports available on a website, using the case citations as a basis for the URLs. Utopia Law also put their commentaries up on the web, providing links where appropriate to the judgement on Opinion's website, and to both the judgement on Opinion's website and the commentary on Utopia's website. There are thousands of such citations.

Questions:

  • Does the printed version of Utopia's commentaries infringe any copyright belonging to Opinion, and do 'fair use' provisions apply?
  • Does the online version of Utopia's commentaries infring any copyright belonging to Opinion, and do 'fair use' provisions apply?
  • Can the resulting system of network computers be considered to be a particular machine for retrieving legal information?
  • Is the system of case citations an API for such a machine?
  • What is the relevance, if any, of any creativity and expression involved in the development of the case citation system, when considing issues of copyright liability and protection for the system of case citations?

[ Reply to This | # ]

An API must be textual, right?
Authored by: macliam on Saturday, March 02 2013 @ 04:03 AM EST

Apologies for the multiple threads.

OK, so substantial APIs are creative expression protectable under copyright law. But an interface need not be textual. A text-based shell like sh, csh, bash or tcsh is an interface. And a graphical user interface (GUI) is considered to be a type of shell. The difference between an applications programming interface (API) and a graphical user interface is that an API is an interface to enable an applications program to operate the machine, whereas a GUI is an interface to enable a user to operate the machine that just happens to be graphical as opposed to textual. They are both interfaces to enable interoperability.

So if interfaces are creative expression protectable under copyright law, they would not also be protectable under patent law (Baker v. Selden, if I remember correctly off the top of my head). So an interface, and in particular a graphical interface, would be protectable under copyright law. This is why we see all those lawsuits where companies are sued for copyright infringement in various interface features, like 'slide to unlock', and all sorts of gestures on touch screens? Such features could clearly never be protectable under patent law. Agreed?

[ Reply to This | # ]

Hypocrisy?
Authored by: Anonymous on Monday, March 11 2013 @ 01:44 PM EDT
Scott McNealy is currently speaking at SXSW ("Fro m Sun to Startup"). His bio says he "continues his longstanding commitment to education and advocacy for open and competitive business practices." His amici brief belies it.

[ Reply to This | # ]

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