Earlier this week I discussed certain aspects and passages of the Oracle v. Google appeal brief. Among other things I mentioned the fact that the district judge's holdings are described as "a manifesto of software exceptionalism--the notion that software (or perhaps some undefined category of software) deserves less copyright protection than any other work". I'm now going to follow up on that one because it's a key issue not only to this copyright infringement case but also related to the ongoing debate over the patenting of software-related inventions (USPTO link, Business Software Alliance link).
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. During the proceedings before his court he even asked the parties for briefing on the question of whether APIs (a vague term that can mean all sorts of disparate things) should be protected by (software) patents or copyright.
The conclusion at which Judge Alsup arrived -- preferring software patents over software copyright -- is the very opposite of what is in my experience the primary argument that critics make against software patents. Software patent critics -- and this includes me while I was running the European NoSoftwarePatents campaign -- typically tell policy makers that copyright provides sufficient protection for software innovation and that patent protection is overreaching or even counterproductive. Sometimes this underlying assumption is merely implied. For example, Circuit Judge Richard Posner's article entitled "Why There Are Too Many Patents in America" says that, while "an industry that really does need [patent] protection is pharmaceuticals", "most industries could get along fine without patent protection". Judge Posner didn't mean to say that a sector such as the software industry shouldn't be subject to any intellectual property rights regime. His article doesn't say that software copyright or trade secrets should be abolished as well. So he's implying that copyright and trade secret protection, along with the commercial benefits of the first-mover advantage, do the job of promoting the progress of science and the useful arts in this field.
Judge Alsup is not Judge Posner. He'll never be. He has a completely different perspective on this. I'll now continue quoting Oracle's brief because its next paragraph makes the difference between these two judges' positions even clearer:
"The district court countered with an idea from a law review article: 'As software patents gain increasingly broad protection, whatever reasons there once were for broad copyright protection of computer programs disappear.' If this Court adopts the district court's rationale, 'copyright protection of computer programs' will indeed 'disappear.'"
(references to addendum omitted for improved flow)
The claim that increasingly broad protection through software patents renders copyright superfluous should set off the alarm bells in the minds of some of the people who cheered about Judge Alsup's ruling but simultaneously criticize (or fundamentally oppose) software patents. For example, the Electronic Frontier Foundation isn't really being consistent on these two issues. On the one hand, it applauded Judge Alsup for allegedly "defend[ing] interoperability and innovation" by saying that software patents are a better idea than copyright on anything related to API definitions. On the other hand, the author of the same EFF statement holds the Mark Cuban Chair to Eliminate Stupid Patents and wrote last week that "software patents are bad news, and incredibly harmful to our society and economy". What a striking contradiction. Same organization. Same person.
Three months ago the same organization and same staff lawyer made a call on programmers to support Google during this appeal, and, by extension, to support Judge Alsup's pro-software-patent anti-copyright logic. And that call mentions the fact that "Samba, a free networking program, interacts with and responds to Microsoft's SMB API so that computers running the two programs can be networked together". But Samba is a non-issue at this stage, as I explained when the EFF made the same specious argument during the district court proceedings. And in the Samba-related part of the EU antitrust case, copyright was referenced explicitly in connection with the documentation, but references to intellectual property were usually about patents, which Microsoft agreed to license on FRAND terms (and the Samba team then declined to take a license, denying infringement).
What becomes clear here is that the EFF and some other parts of the anti-IP movement, including certain other blogs following this case, will tell judges and lawmakers that software patents are a better choice if it helps them defeat copyright, and that copyright is more suitable to protect software when software patents are on the agenda. If they got their way in both cases, the software industry would be deprived of all protection.
I thought it was about time to expose this agenda (and these inconsistencies). Judge Posner apparently prefers copyright (and trade secrets) over software patents; Judge Alsup clearly prefers patents. Either judge would ultimately support at least one IPR regime. The likes of the EFF are ultimately against them all.
On this occasion I'm not going to get into the policy debate over software patents vs. copyright. I talked about it a lot in the past; I may talk about it again at some point. In connection with Oracle's appeal brief it's not about what all of us (including Judge Posner and Judge Alsup) would like the law to be, but what the law is. Oracle isn't saying that copyright is better than patents (which it officially stated about 20 years ago) or the other way round. Oracle's appeal doesn't involve any patents -- at this stage the case is exclusively about copyright (another reason for programmers opposing software patents not to support the EFF in this context). Oracle's argument is, as I quoted above, that Judge Alsup erred in considering software patents and copyright mutually exclusive. In this context it's worth taking a quick look at the Supreme Court's Mazer opinion, which Oracle's brief quotes. This case is 60 years old, and it was not about software but about statuettes. A district court dismissed a copyright infringement complaint over statuettes even though "original works of sculpture, from the models of which china statuettes were made", had been registered with the Copyright Office. The appeals court (Fourth Circuit) reversed. The Supreme Court affirmed the copyrightability of those designs.
One ultimately unsuccessful argument raised against copyright protection for those designs was that the right holder should have sought design patent rather than copyright protection. For example, the petitioners argued that "design patents require the critical examination given patents to protect the public against monopoly". But the Supreme Court supported copyright protection regardless of whether the right holder would have additionally had access to design patent protection:
"As we have held the statuettes here involved copyrightable, we need not decide the question of their patentability. Though other courts have passed upon the issue as to whether allowance by the election of the author or patentee of one bars a grant of the other, we do not. We do hold that the patentability of the statuettes, fitted as lamps or unfitted, does not bar copyright as works of art. Neither the Copyright Statute nor any other says that, because a thing is patentable, it may not be copyrighted. We should not so hold.
Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea -- not the idea itself. Thus, in Baker v. Selden, 101 U. S. 99, the Court held that a copyrighted book on a peculiar system of bookkeeping was not infringed by a similar book using a similar plan which achieved similar results where the alleged infringer made a different arrangement of the columns and used different headings. The distinction is illustrated in Fred Fisher, Inc. v. Dillingham, 298 F. 145, 151, when the court speaks of two men, each a perfectionist, independently making maps of the same territory. Though the maps are identical, each may obtain the exclusive right to make copies of his own particular map, and yet neither will infringe the other's copyright. Likewise, a copyrighted directory is not infringed by a similar directory which is the product of independent work. The copyright protects originality, rather than novelty or invention -- conferring only 'the sole right of multiplying copies.' Absent copying, there can be no infringement of copyright."
Oracle's brief quoted only the sentence about what the Copyright Statute says and does not say. But if you read it in context, as quoted above, you can see that regardless of whether we're talking about software or designs, the Supreme Court already explained some 60 years ago the ways in which those two intellectual property rights regimes -- copyright and patents -- are different and, in fact, complementary. One can argue that copyright is sufficient to protect creations in a particular field, but one cannot reasonably argue that patents render copyright unnecessary, given that patents protect, as the Supreme Court said, "novelty or invention" -- and a well-designed software package (including an API-related one) doesn't have to be novel or inventive in order to deserve protection. It has to be original, and even Judge Alsup agreed that Oracle's asserted works were original.
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