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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

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