Yesterday Oracle filed with the United States Court of Appeals for the Federal Circuit its opening brief in the Android-Java copyright infringement case. The brief entered the appeals court's electronic filing system today. It became clear in late November that this appeal focuses entirely on the copyright part of the case (no patents involved anymore). The brief itself furthermore clarifies that Oracle's copyright infringement claims relate exclusively to what the jury also deemed infringed (37 Java API packages, but not the Java documentation).
Oracle asks the Federal Circuit to overrule District Judge William H. Alsup's holding that the material Google had copied is not protected by copyright and to toss Google's "fair use" defense, on which the jury was hung (i.e., it couldn't reach unanimity). Oracle must prevail on the first count -- copyrightability -- at the Federal Circuit or ultimately at the Supreme Court (if that's where the case goes after another appeal by Oracle or Google) in order to have a case. If Oracle additionally achieves the second objective and defeats Google's fair use defense at the appeals stage, Google will be immediately liable for large-scale copyright infringement and the next step is to determine remedies (injunction, damages etc.).
If Oracle wins the first part but not the second one, there will be a new jury trial on fair use. It was one of the most fundamental misconceptions -- reiterated ad nauseam by propagandists -- during and after the trial held last spring that the jury's failure to render a verdict on "fair use" was a defeat for Oracle. In reality, it was merely a "not yet", not a "no", and the "fair use" question would have been retried a few months later if the judge had not declared an amount of undoubtedly original material (not just pre-existing data such as addresses and phone numbers) uncopyrightable that exceeded the quantities of original material found uncopyrightable in previous U.S. copyright cases by a few hundred times. If there's a finding of infringement of copyrightable material, "fair use" is Google's last chance to defend itself and Oracle's final challenge to surmount. The deadlocked jury of 2012 won't influence the outcome in the slightest. We're not there yet, but it's important to consider how the two key parts of the appeal relate to each other going forward.
I plan to do more blog posts on this high-profile case during the course of the appeal. After the district court's ruling I already said that these copyright issues are considerably more controversial and less predictable than patent cases, but at the same time I stated that I would continue to comment on them. I believed in Oracle's case shortly after I fought against its acquisition of Sun Microsystems (Java) and long before I did any consulting work for it (which, just by the way, I had announced without delay and roughly four months before anyone asked). Even several years before Oracle bought Sun I took markedly pro-IP positions, in public, on similar copyright issues such as Blizzard v. bnetd. I don't see why I shouldn't believe in this appeal, which in my view raises legitimate issues that are critical to IP and, above all, innovation.
For the remainder of this post I will focus on the broad lines of Oracle's opening brief. I may still go into more detail on some of the issues on subsequent occasions. Anyway, here's the brief for your perusal (you can understand it even if you didn't read any district court document in this case), and further below you'll find my high-level observations.
After the table of contents and table of authorities, but before the main part begins, the brief quotes a passage from the famous Lindholm email:
"What we've actually been asked to do (by [Google co-founders] Larry and Sergei [sic]) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”
That's because the Statement of Related Cases has to mention the same appeals court's ruling against Google with respect to the admissibility of this piece of evidence. But it undoubtedly serves as a reminder of why there is a dispute at all: because Google continues to refuse to take a Java license.
The Harry Potter analogy
The first three paragraphs don't even mention Google, Oracle, or Java. They just outline an analogy:
"Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix--the fifth book--and proceeds to transcribe. She verbatim copies all the chapter titles--from Chapter 1 ("Dudley Demented") to Chapter 38 ("The Second War Begins"). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one ("Harry nodded."). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid's Harry Potter 5.0. The knockoff flies off the shelves.
J.K. Rowling sues for copyright infringement. Ann's defenses: "But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base."
Obviously, the defenses would fail."
And then the brief talks about Java and Android (not Ann Droid).
This literary analogy is not just a vivid introduction to the issues. The second one of two "axioms" Oracle's appellate argument is based on is the following:
"[C]opyright protection extends to computer programs," just as it does to any other literary work. Atari Games Corp. v. Nintendo of Am., Inc., 975 F.2d 832, 838 (Fed. Cir. 1992).
Here's the other one (the first one, actually):
The Copyright Act's threshold for copyright protection is very low. Any "creative spark" counts, "no matter how crude [or] humble." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (internal quotation marks omitted).
These two pillars of Oracle's appellate argument are one ruling by the same appeals court and one by the only court above it. Oracle's brief says that "[t]he district court's approach of exempting some software from the standard copyright rules is an assault on both principles".
Further below (page 43 of the PDF document) 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".
This is going to be a key issue now for the appeals court to resolve. Note that Oracle does not say that all software is the same as all literature for purposes of copyrightability (and fair use). The way I understand Oracle's position (after reading the brief) is that authors of original works are entitled to the same degree of protection. A key term that occurs multiple times in the brief because it is essential to originality (and, by extension, copyrightability) is "infinite" in connection with "options". Oracle's lawyers (and I) disagree with Judge Alsup's use of the merger doctrine and the statutory exemption of methods of operation from copyright protection because there wasn't only one way to express certain ideas when Sun's developers authored and structured Java. At a later point in time, when Google decided to use all the stuff, there weren't infinite alternatives because Google's goal was to attract the Java developer community to Android. But that kind of commercial motivation is unrelated to the criteria for copyright protection. Indeed, Oracle's brief notes that "[w]hat a plagiarist feels it must copy to benefit from the original work is irrelevant, because copyright 'subsists from … creation and ... endures.' [under the law]"
Even though interoperability is, as Oracle argues, "irrelevant to whether the packages are copyrightable", it can come into play if something copyrightable has been found infringed and the "fair use" defense must be analyzed. Since Google chose not to be truly copyrightable (just to offer enough common elements with Java to attract developers), interoperability is a particularly difficult argument to make here in Google's defense. I felt all along that Google's interoperability argument came down to saying: "Please let us do what we do because those who, unlike us, try to be truly interoperable do something similar."
There's a lot more that could be discussed here about this very interesting and compelling opening brief. I'll think about it and may do a couple of follow-up posts in the coming days particularly for those who are very interested in software copyright issues. One post can't cover all that's in a 77-page brief. For now I just wanted to summarize the broad lines (with a focus on copyrightability, without which "fair use" wouldn't matter) and share the document.
I won't make a definitive prediction on the outcome, but I have no doubt -- not even the slightest doubt -- that the appellate hearing will be an interesting one and that the Federal Circuit will approach the key issues at stake here in full awareness of the broader implications for intellectual property and innovation.
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