I've now located the fifth and last amicus curiae brief supporting Google against Oracle's Android/Java copyright appeal. The Computer & Communications Industry Association (CCIA) has published its submission to the Federal Circuit on the organization's website.
Last week I already said this about the CCIA's allegiance to Google:
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.
The CCIA's brief mentions refers to its decades of allegedly promoting interoperability. It is true that, like the EFF, it has done some pro-interoperability work. But just like Google and the equally Google-funded EFF, the CCIA also fails the litmus test for genuine and consistent advocates of interoperability: it doesn't fight against FRAND abuse. In a submission to the FTC, the CCIA warns that enforcement of FRAND licensing pledges could "diminish incentives to standard setting". Interestingly, the notion that affirmance of District Judge Alsup's denial of copyrightability to 7,000+ lines of declaring Java API code could "diminish incentives" to create and promote such platforms does not cross the CCIA's mind. In its FRAND-related submissions (also including one to the FTC and the DoJ) it conflates standard-essential patent (SEP) with non-SEP issues, which is a key part of Google's strategy that has failed all the way so far. True promoters of interoperability would never deny that SEPs raise issues that non-SEPs don't (even though some issues are relevant to all patents), and wouldn't discourage antitrust enforcement in this context and oppose implementer-friendly FRAND interpretations -- and, in particular, wouldn't suggest that it's fine to let SEP users renege on FRAND licensing pledges in order to give them leverage so they'll get away with infringement of non-SEPs. Simply put, the CCIA is all for IP when it's Google's IP, and all for infringement when Google infringes.
The first sentence describes the CCIA, but misleadingly blows out of proportion the economic weight behind its brief:
"The Computer & Communications Industry Association ('CCIA') represents over twenty companies of all sizes providing high technology products and services, including computer hardware and software, electronic commerce, telecommunications, and Internet products and services -- companies that collectively generate more than $250 billion in annual revenues."
It mentions Oracle and Sun's former membership (2011) and links to its list of members. Once you look that one up and think things through, the CCIA is suddenly only half as big as it claims. This is an amicus curiae brief -- Google as a party doesn't count. At the current run rate, Google's annual revenues are $56 billion. Microsoft is also a member of BSA | The Software Alliance and filed a pro-Oracle brief in its own name. Microsoft (annual revenues of $80 billion at current run rate) therefore has to be subtracted from the CCIA's list of members as far as this brief is concerned. Once you exclude Microsoft and Google, the potential amici represented by CCIA are smaller in revenues than Apple alone, which through BSA supports Oracle.
Oracle has clearly received far more powerful and meaningful support from amici than Google. Greater economic weight. Greater diversity. Greater independence (Oracle's amici include some of its competitors, such as IBM and Microsoft). At least four of the five, if not all five, pro-Google amicus briefs involve organizations and individuals paid by Google. While Oracle is supported even by archrivals, Google largely relies on its funded friends and their mobilization efforts.
I'm also underwhelmed by the content of the pro-Google briefs. They're all (which doesn't surprise in light of obvious orchestration) consistent in their interoperability-centric anti-copyrightability stance. Only the Application Developers Alliance at least raises an argument against resolving interoperability through "fair use" (though that argument comes down to fear of frivolous litigation, and the Alliance doesn't properly consider antitrust). I'm not saying that it's 100% certain the Federal Circuit will reject this theory of an interoperability-copyrightability dichotomy -- of course we all have to see what comes out of this. But if the circuit judges ask at the appellate hearing, whenever it will be held, whether interoperability can't also be ensured through fair use and, if all else fails, antitrust law, then Google and most of its amici will have to make an argument at the hearing that they didn't raise in their briefs -- and if the Federal Circuit deems "fair use" and FRAND the more appropriate and flexible tools for ensuring interoperability, then Oracle will be in great shape.
The CCIA's brief focuses on the international landscape, such as a ruling by the Court of Justice of the EU and various free trade agreements. I couldn't find any example in there of a problem that U.S. copyright law, with its robust "fair use" exception, can't solve unless copyrightablity is denied even to expressive and original creations. In fact, the CCIA's brief mentions the possibility of a fair-use-based solution all the time. Here are a couple of examples:
"Since this Court's 1992 decision in Atari Games Corp. v. Nintendo of America, 975 F.2d 832 (Fed. Cir. 1992), however, no less than five U.S. courts have permitted reproduction during the course of software reverse engineering under the fair use doctrine."
"The Legislative Council decided to broaden Hong Kong's fair dealing provision to more closely resemble the fair use provision of the U.S. Copyright Act."
Has the CCIA given up on non-copyrightability and is trying to at least support Google on the "fair use" side as a fallback position? Or does it want both non-copyrightability and the "fair use" exception to safeguard interoperability, though one such tool would be enough? Maybe this will become clearer at the appellate hearing.
But before we get there, Oracle will file a reply brief to Google's opening brief and the amicus curiae briefs, and since this is a cross-appeal, Google will also get to file a final reply on some minor issues.
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