Friday, February 22, 2013

Google requests more time to respond to Oracle's appeal brief and in-depth amicus curiae briefs

Late on Thursday Google filed a motion with the United States Court of Appeals for the Federal Circuit requesting an extension of almost two months for its answer to Oracle's Android/Java copyright appeal brief. If this motion is granted, which is pretty certain given that Oracle and Google had already agreed on mutual non-opposition to their extension requests back in November, Google's response to Oracle's brief and to the amicus curiae briefs filed in support of Oracle's appeal by industry leaders, creatives and academics including a former U.S. copyright chief will be due on May 23, 2013 instead of March 23, 2013.

It was a given that Google was going to put in this request. It had a procedural deal with Oracle in place, and it has no business reason to favor swift resolution of the appeal. Google is also appealing the parts of the dstrict court's ruling adverse to its positions, but it stands very little to gain at the appeals court, while this is Oracle's chance to bring the Android/Java copyright infringement case (which originally was also, in part, a patent case) back to life. During the district court proceedings Google also consistently advocated delay.

Google presumably elected not to request the negotiated extension from the court prior to seeing Oracle's brief because a deal between the parties is not a substitute for good cause from the court's vantage point. Google's good-cause theory has two main parts. Just like Oracle did in its November motion, Google stresses the complexity of this case and the huge number of documents in the record. Additionally, Google appears to be quite impressed with the depth of Oracle's brief and the breadth and depth of the amicus curiae briefs:

"6. As an additional good cause for the requested extension, Google notes that six amicus briefs have been filed in support of Oracle:

  • Brief for Amicus Curiae Ralph Oman Supporting the Position of Plaintiff-Appellant and Urging Reversal (document 46) (6,959 words);

  • Brief of Amici Curiae Picture Archive Council of America, Inc. and Graphic Artists Guild in Support of Plaintiff-Appellant Seeking Reversal (document 54) (6,390 words);

  • Brief for Amici Curiae Microsoft Corporation, EMC Corporation, and NetApp, Inc. in Support of Appellant (document 55) (4,965 words)

  • Brief of Scott McNealy and Brian Sutphin as Amici Curiae in Support of Reversal (document 58) (5,753 words);

  • Brief for BSA | The Software Alliance as Amicus Curiae in Support of Plaintiff-Appellee Oracle America, Inc. (document 59) (6,622 words); and

  • The Brief of Amici Curiae Eugene H. Spafford, Ph.D., Zhi Ding, Ph.D., and Lee A. Hollaar, Ph.D. in Support of Appellant (document 62) (4,497 words).

7. These six amicus briefs contain a total of 35,186 words—more than 2.5 times the length of Oracle’s opening brief (which contains 13,998 words). Google's First Brief will be its last opportunity to respond to these additional briefs (except to the extent that they bear on Google's cross-appeal)."

The last part means that the copyrightability and "fair use" issues raised in the amicus curiae briefs can be, in part, relevant to Google's appeal of the district court's finding of liability for the rangeCheck function.

The briefs have not entered the public record yet. Once they are all available, I will discuss their content in more detail. Some of the briefs have meanwhile appeared on the Internet. BSA | The Software Alliance (previously known as the "Business Software Alliance") published its submission on the organization's website. ArsTechnica obtained and published the brief filed by Microsoft, EMC and NetApp as well as the one submitted by the Picture Archive Council of America and the Graphic Artists Alliance.

The Microsoft-EMC-NetApp brief focuses entirely on copyrightability, arguing that interoperability should be addressed at the "fair use" level rather than denying copyrightability to original works as Judge Alsup did. As I explained in my post on Oracle's appeal brief and on previous occasions, copyrightability is a must-win item for Oracle. "Fair use" can be resolved by the Federal Circuit (as Oracle requests) but it could also be addressed at a new trial. I still see reports on the Internet that mistakenly believe the jury sided with Google on this one: the jury simply didn't decide at all. BSA | The Software Alliance supports Oracle on copyrightability and "fair use". The two organizations representing creatives don't address copyrightability (they presumably thought that software-specific issues aren't of sufficient concern to their membership, though I believe that creatives, too, should be interested in ensuring that original combinations of non-copyrightable elements remain copyrightable) but focus entirely on "fair use".

If there's one buzzword that really matters to both the copyrightability and the "fair use" issue, it's interoperability. Microsoft's brief accurately notes that Judge Alsup decided to give Google an interoperability privilege only for "convenience". Interoperability is not a copyrightability issue -- the rulings Judge Alsup cited to this effect did not really make interoperability a criterion in the copyrightability context at a closer look. And to the extent it's a "fair use" question, what Google did was not really about enabling two technology products to work together (interoperate) and communicate: the only objective was to attract Java developers to a competing platform.

BSA | The Software Alliance also addresses what it considers to be errors and misconceptions on Judge Alsup's part with respect to the definition and import of interoperability (these are my words, not the BSA's). The BSA's members clearly have a track record of advocating interoperability: they all build products that are, and must be able to be, used together with other companies' technologies.

Again, I'll elaborate on the substance of the amicus briefs once I've obtained all of them, including the submission made by former U.S. Register of Copyrights (Director of the U.S. Copyright Office or colloquially "copyright czar") Ralph Oman.

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