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Microsoft, BSA, Scott McNealy, others file amicus briefs in support of Oracle's appeal against Google ~pj Updated 3Xs
Wednesday, February 20 2013 @ 05:57 AM EST

Yesterday there were numerous amicus briefs filed all on the same day and all in support of Oracle against Google in Oracle's appeal at the Federal Circuit. None of the briefs are posted publicly yet, but they should be available soon.

Microsoft has filed one, together with EMC Corporation, and NetApp, Inc. Scott McNealy has filed one with Brian Sutphin. Can McNealy be a witness for Oracle at trial, which he was [PDF], and also file an amicus brief? Well, he has. The Picture Archive Council of America, Inc. has filed one with the Graphic Artists Guild. Also there's one from the BSA. And finally Eugene Spafford, Zhi Ding, and Lee A. Hollaar have filed an amicus in support of Oracle. Hollaar seems to file a lot of amicus briefs.

So why do these entities and individuals care about this Java API case, do you suppose?

Jump To Comments

[Update 1, Update 2, Update 3]

Here's the docket:
02/19/2013 -  45  - 1 pg, 32.11 KB
Entry of appearance for Marcia B. Paul as principal counsel for BRIEF FOR AMICUS CURIAE RALPH OMAN. Service: 02/19/2013 by email. [51830]

02/19/2013 -  46  - 0 pg, 0 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  - 0 pg, 0 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 - 0 pg, 0 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]

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 -  0 pg, 0 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 - Entry of appearance for Krishnendu Gupta as of counsel for Appellant Oracle America, Inc. EMC Corporation. Service: 02/20/2013 by email. [52038]

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

02/20/2013 - 65 - 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]

02/20/2013 - 66 - 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]

Brian Sutphin was the VP at Sun Microsystem who in 2003 signed the stock deal with SCO Group's (then Caldera) then-CEO Darl McBride just days after Caldera filed its suit against IBM. I know. It kind of makes your skin crawl, doesn't it? He also testified at trial for Oracle. Both he and McNealy told the court with straight faces that Jonathan Schwartz's corporate blog was personal, not a company blog.

Update: The issue came up because Schwartz famously endorsed Google's use of Java APIs on that blog ("We support Android's use of Java", Google's lawyer read from the blog to the jury in his opening statement), so Oracle claimed nobody read the blog and Google couldn't prove with any witnesses that it relied upon it. So Google put Schwarz on the stand, and he robustly confirmed Google's right to use the APIs freely. So then Oracle put McNealy back on the stand and he rebutted Schwartz's testimony, claiming the blog was just a personal blog, not representing the company. But at Groklaw, we collected quite a bit of evidence that it was, indeed, a corporate blog. You can find proof in Update 5 of this article, for example, showing a letter to the SEC Schwartz posted to the blog in 2006, in which he calls his blog a corporate blog:

Our corporate website (www.sun.com) currently receives on average of nearly a million hits per day. This website includes a blog that I write as CEO of Sun Microsystems (www.blogs.sun.com/jonathan), as well as the blogs of over 4,000 of our other employees. My blog is syndicated across the Internet by use of RSS technology; thus, its content is “pushed” to subscribers. This website is a tremendous vehicle for the broad delivery of timely and robust information about our company. It is our view that proprietary news outlets are insufficiently accessible to the broad majority of Internet users and individual shareholders. It is certainly the case that the Internet represents a broader user base than those able to afford subscriptions to traditional forms of media and thus usage of this or any other freely available company blog or web site should be considered sufficient in satisfying the objectives of Regulation Fair Disclosure.
Later, as you can see in this preserved copy of an entry to the Schwartz blog in 2008, he included the Safe Harbor Statement. Is it conceivable that McNealy would be unaware of all this?

I mean, really? Then how about this Sun SEC filing, its annual report for 2008?

Additionally, we provide notifications of our material news including SEC filings, investor events, press releases and CEO blogs as part of the Official Investor Communications section of our Investor Relations web site.
If you scroll down that page, you'll see a 2007 Schwarz blog post shown, hence covered by that annual report, in which Schwartz congratulates Google on its new "Java-Linux phone platform, Android". I suppose McNealy didn't know about that 10K either? Never read it? Puh-lease. I see it has disappeared from its place on the Internet, even from Internet Archive. Woah. That thing keeps hopping from lily pad to lily pad. Good thing I saved a copy and posted a screen shot. I didn't just fall off a turnip truck, you know. SCO taught me what corporate dudes do. I see Schwartz didn't either. He has it preserved on his new blog space, if you'd like to read it in full.

[Update 3: Ah, the community comes through again. I just got an email, and a member has found his post congratulating Google on Android on Wayback after all, here, and you can see from the url it's a capture of his Sun blog.]

And you can find the transacripts from the trial on Groklaw's permanent timeline for the Oracle v. Google dispute, if you would like to read the actual McNealy and Sutphin testimony.

Incidentally, Oracle isn't the appellee, as the BSA docket entry states. Oracle is the appellant. Here's hoping they get everything else wrong too.

Old timers at Groklaw will remember Lee Hollaar from the SCO saga in years past. AntiGPL trolls used to fill the Internet with quotes from Professor Hollaar on the general theme that you could violate the GPL and nobody could stop you legally. Of course, you can't blame him for what the trolls did, but the theory turned out to be wrong, and it was because of all that, and SCO more or less actually trying that theory and failing, that we learned quite a bit about him and his history. He has a long-time connection to Sen. Orrin Hatch of Utah, whose son represented SCO. Here's an article we did in 2007, where he served as an expert, or intended to -- the case was tossed out -- in a defamation case involving Gary Kildall's place in history, which Hollaar diminished in his report [PDF]. And he filed an amicus brief [PDF] in the In Re Bilski case when it reached the US Supreme Court. Note his view of Free and Open Source Software licenses:

31 Many programmers forego trade secret protection for their source code by making it available under a “free” or “open-source” license. These licenses, which are backed by copyrights of the source code, often require anybody improving the program to make their modifications available under the same license. But that does not keep someone from taking any new ideas in the program and incorporating them in a program while keeping their source code as a trade secret, because copyright does not protect ideas. Although most open-source programmers are opposed to software patents, this likely stems from a time when many of their programs were “clones” of existing proprietary programs (the original “free software” program was to be a reimplementation of the Unix operating system), and a patent could prevent such cloning. In this respect, they are like developing countries, which downplay intellectual property protection until they start producing their own innovations, at which time copyrights and patents become more interesting. The United States did not protect the works of foreign authors until 1891, when protection of American authors’ works in foreign countries became important.
Methinks the professor doesn't know as much about FOSS as he thinks he does. Or about computer history. Software started out open to all, then afterward became proprietary, not the other way around. And the GPL depends upon and is built upon copyright law. The Software Freedom Law Center specifically responded to his slur in their amicus brief in Bilski:
2 The brief submitted by amici Lee A. Hollar and IEEE is therefore entirely wrong in claiming that the free software movement’s hostility to software patenting results from a similarity between “underdeveloped economies” and free software programmers. Brief of Lee A. Hollar and IEEE-USA at 21 n.31. Far from being involved in “cloning” the software of others, free software or “open source” programmers have been responsible for the most important technical innovations in the field over the last twenty years. The objection of the free software community to software patents stems not from their desire to misappropriate the work of others, but rather from the belief that the free exchange of information is a cornerstone of free societies.
Hollaar also filed an amicus brief [PDf] in the CLS Bank v. Alice case about whether, if at all, software is or should be patentable. In it, beginning around page 16, he rebuts the idea that software is mathematics, claiming that it just superficially looks like that. Here are some articles on Groklaw that demonstrate that he's wrong.

The company Oracle keeps these days takes one's breath away. Who would ever have predicted an Oracle-Microsoft buddy system? And Oracle testified once before the USPTO, in 1994, taking a stand against patenting software. And now they pal around with IP maximalists, the dinosaurs of tech, denying their history and previous values. And then they hired Florian Mueller of the misnamed FOSSpatents as an "adviser". I hope they follow his "advice" to the letter. Sincerely. Do.

Quibble about details all you want, but when Google folks decided that their motto would be Don't Be Evil, they said something meaningful and important.

Update 2: Ars technica has the Microsoft brief. It is not on the court's website yet, so it likely obtained it from Microsoft or a partner on the brief, but it's nice to be able to read it:

Microsoft has dark visions of what will happen if Google's big courtroom win against Oracle holds up on appeal. If Google's position that APIs can't be copyrighted stands, it will "destabilize" the entire software industry, write Microsoft lawyers in an amicus brief [PDF] filed this week at the US Court of Appeals for the 9th Circuit.
Microsoft is a sketch. Destabalize, indeed. May I remind them that all Judge Alsup said in his decision was that these particular Java APIs couldn't be copyrighted, not that all APIs were uncopyrightable:
This order does not hold that Java API packages are free for all to use without license. It does not hold that the structure, sequence and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act. Therefore, Oracle’s claim based on Google’s copying of the 37 API packages, including their structure, sequence and organization is DISMISSED.
All the rest is FUD-ly FUD. And why, pray tell, would this order affect graphic artists in any way, then? I'll work on a text version for you next.

But I must point out something that Oracle claims in its brief, reinforced by FOSSPatents [http://www.fosspatents.com/2013/02/oracles-appeal-brief-clears-up.html], that I don't believe is accurate either:

Here's a passage from Oracle's brief, immediately following the one quoted above about software exceptionalism:
The court's premise was that software innovation is entitled to copyright protection or patent protection, never both. The Court preferred patent protection because 'copyright exclusivity lasts 95 years.' This either/or notion is, of course, incorrect. The Supreme Court has 'h[e]ld that … [n]either the Copyright Statute nor any other says that because a thing is patentable it may not be copyrighted.' Mazer, 347 U.S. at 217."
(references to addendum omitted for improved flow) The first sentence accurately reflects Judge Alsup's underlying logic.
Not to my eyes. What Judge Alsup wrote was that some things can have copyright protection and some things can't. You can't copyright ideas, for example. But you can maybe get a patent on the idea. It's not a matter that you can't have both. Most software is covered by both. But the two types of protection are not identical, and one thing you can't copyright in software is functional code when there is no other way to achieve interoperability:
To repeat, Section 102(b) states that “in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation . . . regardless of the form . . . .” That a system or method of operation has thousands of commands arranged in a creative taxonomy does not change its character as a method of operation. Yes, it is creative. Yes, it is original. Yes, it resembles a taxonomy. But it is nevertheless a command structure, a system or method of operation — a long hierarchy of over six thousand commands to carry out pre-assigned functions. For that reason, it cannot receive copyright protection — patent protection perhaps — but not copyright protection....

In view of the foregoing, this order concludes that our immediate case is controlled by these principles of copyright law:

  • Under the merger doctrine, when there is only one (or only a few) ways to express something, then no one can claim ownership of such expression by copyright.

  • Under the names doctrine, names and short phrases are not copyrightable.

  • Under Section 102(b), copyright protection never extends to any idea, procedure, process, system, method of operation or concept regardless of its form. Functional elements essential for interoperability are not copyrightable

  • Under Feist, we should not yield to the temptation to find copyrightability merely to reward an investment made in a body of intellectual property.
That's what he wrote. Do not be misled. And it's obvious that the judge doesn't believe you have to choose one or the other. He presided over a trial where Oracle claimed both forms of protection, after all. He didn't tell Oracle it had to choose one or the other.

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