Thursday, May 3, 2012

Google seeks to Europeanize the law of the United States with respect to copyrightability

In my previous post I just explained why there are signs that an Oracle v. Google jury verdict on copyright liability may come down today -- in fact, Judge Alsup may proactively incentivize it by telling the jury that it will get Friday off in that event.

While the jury is still deliberating, anything that the jury decides could be overruled by Judge Alsup "as a matter of law" (or an appeals court could find that a judgment as a matter of law (JMOL) would have been warranted). In light of this as well as the fact that there are important copyright-related subissues to be decided by Judge Alsup himself (copyrightability, equitable defenses), the parties have presented motions for JMOL as well as their proposed findings of fact and their resulting conclusions of law.

Oracle argues that the entirety of its copyright-related claims can be decided in its favor because no reasonable jury could find otherwise, while Google claims that no reasonable jury could come up with any finding that would result in copyright liability of any kind. The parties' proposed findings of fact and conclusions of law are meant to serve the same purpose as the corresponding JMOL motions.

In the JMOL context, it's apparent that Google tries very hard to prevail on a technicality relating to copyright registration (which is needed to start copyright infringement litigation in the United States). Since Oracle dropped certain claims, it appears unlikely that Google can do away with the remaining claims on that basis, but it keeps on trying.

As far as copyrightability is concerned, there's a fundamental difference between the relevance of the parties' cited case law to Judge Alsup's upcoming decision. A cited decision ideally relates to an identical or at least very similar fact pattern as the one at issue in the present case (in that case, it can be considered "apposite"), and its relevance also depends very much on where it was made. The present case is pending in the Northern District of California, which is part of the Ninth Circuit (the largest U.S. circuit). Even though this case would have to be appealed to the Federal Circuit because it involves patents (we've already seen this when Google tried to have the Lindholm email thrown out), the Federal Circuit would have to apply Ninth Circuit law for the copyrightability issues in this case. So the best case law here, short of a Supreme Court ruling, consists of what the Court of Appeals for the Ninth Circuit ruled. Decisions from other circuits can also be useful, but in terms of relative weight, Ninth Circuit decisions generally trump them for the purposes of this case. And in that regard, Oracle's argument in favor of copyrightability is fundamentally stronger than Gogle's counterargument.

Earlier this week I already explained that the alleged non-copyrightability of APIs in the United States is nothing more than a popular myth, and reputable media that propogated it in recent days didn't even get the simplest legal issues right. With all its money and undoubtedly very capable lawyers, Google still hasn't been able to explain how Judge Alsup could not conclude that the Java API fact pattern falls squarely within that decided in Johnson Controls v. Phoenix Control Systems (disucssed in the blog post I just linked to). I ran a full text search and the name "Johnson" doesn't appear even once in Google's 56-page filing regarding findings of fact and conclusions of law. Not even once.

What Google does instead reminds of what HTC tried (and miserably failed with) before the Mannheim Regional Court: to tell a court in one legal system it should follow the lead of a different legal system.

Google tries to counter Oracle's very compelling copyrightability argument, which is very much a Ninth Circuit argument, with inapposite cases from all across the United States and, which is really ridiculous, by pointing Judge Alsup to yesterday's EU Court of Justice opinion on a copyrightability issue under the laws of the European Union.

Google even attached the entire ruling (though Judge Alsup could find it on the Internet) to its proposed findings of fact and conclusions of law.

If we were talking about a policy debate and a submission to U.S. Congress, this would be a legitimate argument to make. But Judge Alsup doesn't make statutory law. He can do a lot, but he can't turn EU Directive 91/250/EEC on the legal protection of computer programs into U.S. statutory law. Google is now wasting his time by hoping that this EU decision is so extremely persuasive that Judge Alsup will try to legislate from the bench rather than apply Ninth Circuit law -- but the latter, not the former, is his job.

At this point and in this context, I don't see a need to go into too much more detail on yesterday's EU ruling. I'd just like to point out that it has nothing to do with EU software patents. Software patents exist in Europe and they are enforced. Almost every single patent that is at issue in the ongoing smartphone patent wars is a software patent if the term is defined broadly. In fact, the second item of the four interrelated decisions the Mannheim Regional Court announced yesterday explicitly bars Microsoft from "distributing computer programs" that are deemed to infringe a couple of Motorola patents. The EU court decision won't change anything about software patents. Copyright law and patent law are different parts of intellectual property law. Yes, the EU court doesn't want software concepts to be monopolized by copyright law -- but the requirements for patentability are different from the requirements for copyright protection (the hurdle is much higher for patent protection), and the maximum term of validity is far shorter. Also, the EU Court does not at this point have jurisdiction over patentable subject matter in connection with software because there's no EU law on that (though there is an EU directive on biotechnological inventions). In certain ways, the EU Court's decision even provides additional ammunition to those who argue that technical inventions implemented in computing devices should be protected by patent law.

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