Friday, May 31, 2013

Google-funded anti-IP groups support Google against Oracle's copyright appeal -- is that it?

Amicus curiae briefs must be filed with U.S. appeals courts "no later than 7 days after the principal brief of the party being supported is filed". Google filed its brief in the cross-appeal of the Oracle v. Google copyright ruling on May 23. Yesterday (May 30) was the deadline for amici curiae ("friends of the court") supporting Google. A couple of months ago Oracle's appeal received support from an impressive and diverse roster of amici (overview of amici, former U.S. copyright chief's warning against eviscerating protection for software, Sun founder's submission explanatory filing by academics regarding API creativity, filings by organizations representing creatives). By contrast, the list of amicus briefs supporting Google is so underwhelming that I'm wondering whether someone is still going to file something (maybe someone got confused about the deadline?). With the greatest respect for the work that some of the individuals ("Computer Scientists") did several decades ago, this mostly comes down to an effort orchestrated by two Google-funded, IP-hostile organizations. I really thought Google, being as powerful as it is, could do better than that. Here's the current and probably final list (click on the image to enlarge or read the text below the image):

  • BRIEF TENDERED from Computer & Communications Industry Association Title: Brief Amicus Curiae in Support of Cross Appellant Google Urging Affirmance.

  • BRIEF TENDERED from Computer Scientists Title: Corrected Brief of Amici Curiae Computer Scientists In Support of Defendant-Cross Appellant and Affirmance.

  • BRIEF TENDERED from Amici Curiae Software Innovators, Start-ups, and Investors: Apiary, Inc., et al. Title: Brief Amici Curiae of Software Innovators, Start-ups, and Investors in Support of Affirmance.


I'm going to comment on those briefs in the coming days as they become available. At this point only the EFF's brief is available. But even before the content of all those briefs is known, it's worth talking briefly about who actually came out in support of Google's anti-copyrightability and self-service-is-fair-use positions:

  • Google is a driving force behind the CCIA. It has various other members, but there is no other member that the CCIA would have supported as consistently and aggressively in a variety of IP contexts in recent years as Google.

    BSA | The Software Alliance, whose amicus brief supports Oracle, also counts Oracle among its members, but it hasn't previously appeared as a pro-Oracle lobbying entity the way CCIA has been a pro-Google lobbying entity over the last couple of years. Oracle also received direct support from sizable companies (Microsoft, EMC, NetApp). And BSA's membership represents a far greater share of of software innovation in the U.S. and on a worldwide basis than that of CCIA (particularly if you remove Microsoft from CCIA's list, given that Microsoft took a clear position in Oracle's favor in an amicus brief it filed directly).

  • The "Computer Scientists" are represented by the Electronic Frontier Foundation (EFF), which orchestrated this brief. The EFF has received various donations from Google, three of which were mentioned by the BBC, including a de facto donation amounting to a million dollars (in a class action settlement it was given a choice to whom to give money and, of course, picked the EFF, which it had already funded before). It published pro-Google articles (on its own website and on Wired) during the trial and argued that the need for the open source Samba file server to interact with Microsoft's products supported the case for non-copyrightability of interoperability-related code, when the fact of the matter is that (true) interoperability can be ensured through "fair use" and, which happened in the Microsoft-Samba case, antitrust regulation.

    The EFF already started the orchestration of this amicus brief last year with a public call for support, which disingenously included the following sentence that already appeared in a previous EFF commentary on this case:

    "It is safe to say that all software developers use APIs to make their software work with other software."

    Why is this disingenuous? Because it suggests that all software developers are at risk from litigation if APIs are found copyrightable. But those using an API for its intended purpose have nothing to fear -- only those who copy and steal. The copyrightability of APIs doesn't create legal risks for those building applications on top of a platform. Nowhere does Oracle say in this dispute that Google isn't allowed to write Java apps.

    Also, the EFF is generally known to advocate anti-IP positions, which the Federal Circuit (a key protector of IP) is pretty aware of. There are areas in which I agree with the EFF. In particular, I believe small app developers shouldn't be targeted by patent trolls.

    The list of "Computer Scientists" undoubtedly includes people whose names ring a bell with me, such as Bjarne Stroustrup, who invented the C++ programming language a long time ago when there was less computing power in entire data centers than there is in a modern-day smartphone. But that's not a substitute for support from corporations. If you get hardly any corporate support except from one of your own lobbying fronts (CCIA), then you know that your positions aren't popular in the wider industry. But there's another reason why even the impressive backgrounds of some of those "Computer Scientists" are of limited relevance to the weight of this amicus brief: it's a lot easier for an organization like the EFF to persuade people to lend their name to such an effort than it is to convince the sophisticated legal departments of large organizations. You can get individuals to sign up by somehow making them believe there's an important cause to support, or by spreading FUD. This is very hard to do with large corporations. And that's the reason why some of those individuals can only support Google in their own name and can't persuade substantial organizations they know or work for to join this effort.

  • For now the "Software Innovators, Start-ups, and Investors" haven't been identified except for "Apiary, Inc.". If you enter "apiary" in Google, you'll get all sorts of results, but it's hard to find this company. It remains to be seen who else is on this list, but again, the level of sophistication when it comes to complicated IP issues is probably very low compared to the legal departments of the kinds of organizations supporting Oracle. These may be just the kinds of people the EFF managed to mislead with its public call.

  • Earlier this month Rackspace filed an amicus brief together with Google against Apple's pursuit of a permanent injunction against Samsung (which took positions that are contrary to what Chief Judge Rader wrote in a very recent ruling). Rackspace is a great service provider, but it really can't speak on behalf of innovators. The EspaceNet database lists a total of nine Rackspace patent applications. It's no surprise that this company is in favor of weak IP: it would love to exploit what others have created.

    The Application Developers Alliance has no reason to be concerned about infringement through the creation of apps, as I explained further above, but the EFF may have misled the organization and some of its members, though strong copyright can actually help little guys defend themselves against large players (regardless of whether this means Apple, Google, IBM, Microsoft, Oracle -- you name them).

    What the Application Developers Alliance may primarily worry about is that if Oracle succeeds, hundreds of thousands of Android apps may have to be rewritten as a result of Oracle's efforts to "bring Android back into the Java fold". I understand that app developers prefer not to rewrite software only because the underlying platform has IP issues. But that is not a reason to deny copyrightability or to define "fair use" so broadly that infringers easily get away with their conduct.

In previous posts (1, 2) I already wrote that amicus briefs are not only about what is said but also about by whom it is said. Oracle received support from substantial organizations as well as from individuals (such as former U.S. copyright chief Ralph Oman) who are very sophisticated in the IP context. Oracle received independent support from such amici. And Oracle's supporters showed a credible basis for being profoundly concerned about the implications of the district court's ruling. By contrast, Google has had to use organizations it funds in order to drum up the appearance of support, may have confused well-meaning individuals and small companies about what's truly at stake here, and the motives of supporters like Rackspace, whose business model is about the commercial exploitation rather than creation of IP, are also questionable and not likely to appeal to the Federal Circuit judges.

[UPDATE on May 31] Oracle spokeswoman Deborah Hellinger has now issued a comment: "I guess everyone is having collective amnesia about the uncontroverted testimony that Android is not compatible with Java." [/UPDATE]

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