Monday, June 3, 2013

Google-supporting IP professors feel Oracle interprets the scope of copyrightability too broadly

For an appeal that Linus Torvalds thought was a waste of money by Oracle, the Android-Java copyright case has actually drawn a whole lot of interest, and the effort that Google, its funded friends and its few other supporters put into this shows that the outcome is far from the foregone conclusion that some people suggested a year ago.

There's another amicus curiae brief that I didn't list in my Friday post on the filings made last Thursday. It was filed by a group of intellectual property professors and uploaded to SSRN by Electronic Frontier Foundation (EFF) Vice Chairwoman Professor Pamela Samuelson. This suggests that she leads this group, so this may be the third (!) amicus curiae brief to have been orchestrated by the Google-funded and Google-loyal EFF. But I recognize that not all of the signatories are EFF activists or as Google aligned as, for example, Professor Mark Lemley, who supports Google's baseball extortion proposal to resolve FRAND disputes. In particular, I noted that New York University Professor Katherine Strandburg, who does support Judge Posner's FRAND ruling, is among the amici. That's a good sign, really.

The professors' brief has three sections. The first two sections seek to argue that the scope of copyrightable program code is allegedly narrower than Oracle claims. The third one talks about constraints on the design choices of subsequent programmers. I've compared the content of this brief to the three potential attack vectors against Google's position that I identified last week. My first concern was that interoperability is more of a "fair use" than copyrightability argument. I've since credited the Application Developers Alliance for at least trying to explain why "fair use" would not be the appropriate tool. In this regard, the brief of the App Dev Alliance also has a unique advantage over the one submitted by these professors, who only mention "fair use" in contexts in which they cite cases that support interoperability through fair use (which relates to, and supports, the third point I had made about Google's argument). The extent to which the professors, like Google and its other amici, try to conflate copyrightability and "fair use" considerations is best demonstrated by the following two consecutive sentences:

"[T]he interface procedures were unprotected aspects of the Sega program under § 102(b). [...] Nor did it undercut Accolade's defense that Sega had a licensing program for Genesis-compatible videogames in which Accolade declined to participate."

No one would ever argue that the existence of a licensing program is relevant to copyrightability. (You can only license what's copyrighted, but by offering a license you don't satisfy copyrightability criteria.) It's a "fair use" argument. But the professors say this right after citing to copyrightability law.

The unique part of the professors' brief, however, is its third section, which relates to my second point: large parts of Google's argument become irrelevant if the question of what constrained Google's design choices (after it made the fundamental decision to arbitrarily co-opt parts of the Java APIs, but anyway) is separated from what constrained the choices of Sun's programmers who created Java, and if the latter determines copyrightability, while the former may have a bearing on "fair use" (or FRAND, if antitrust were an issue, which it isn't because FRAND as well as GPL-based licenses are available and Google declined both). I will, therefore, focus in this post on the unique focus of the professors' brief, but before this I'll say only a few things about the narrow-scope argument.

Allegedly narrow scope of copyrightable program code

If Oracle were asserting against Google its copyrights in a book on object-oriented programming and claimed infringement by using and/or teaching OOP techniques described in that book, then Baker v. Selden would already have given the answer in the 19th century, and that answer would indeed favor Google. But the use of 7,000+ lines of declaring code from the asserted Java APIs is, in my opinion, far more on the "expression" than "idea" side of things.

I, too, would have a problem with the scope of software copyright if it became so broad that developers might infringe it inadvertently, or that they couldn't work around what it protects. I'm not afraid that I'd inadvertently write 7,000 lines of declaring code the same way someone else did, and/or to independently come up (or to be forced to come up) with the structure, sequence and organization of such a body of work.

Every software copyrightability case is about where to draw the line between function and expression. But no one can deny that the purpose of copyright is to protect originality, and if the structure, sequence and organization of 7,000+ lines of highly creative declaring code ended up being unprotectable, I believe copyright would fail to serve its stated purpose.

With all the legal argument about what different statutes and decisions say, the professors don't give even one example of a case in which a similarly complex body of original, highly creative code was denied copyrightability. There are "fair use" cases in which you could either copy small amounts of code or just make copies for your own development/testing purposes; there are cases in which non-original, preexisting data like the content of telephone directories was denied copyrightability despite being huge ("sweat of the brow" is not a substitute for creativity); but no U.S. court, before Judge Alsup's decision in question, found something like those 37 Java APIs uncopyrightable. If this ruling is affirmed, it's a game changer; but if it's reversed, then it just means that a new level of non-copyrightability is not reached.

The professors' brief does not address the second one of the two "axioms" Oracle's opening brief stated:

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).

This is a Supreme Court decision that is central to Oracle's argument, and the professors' brief doesn't mention it even once -- maybe because it's inconvenient.

Constraints on design choices of subsequent programmers

The headline of the third section sums up this claim:

When a Computer Program Interface Constrains the Design Choices of Subsequent Programmers, the Merger Doctrine Precludes Copyright Protection for that Interface Design.

What's key here is the word "subsequent". Java's programmers were subsequent to other programmers, and Android's programmers were subsequent to Java's. What's not in dispute is that Oracle can't claim copyright in what was dictated at the time Java was created; what it disputes is that constraints on Android's developers, after they chose to copy some Java APIs, determine copyrightability.

The professors' related argument is built on top of Computer Associates v. Altai:

Altai established, and other courts later followed, the rule that external factors such as the 'compatibility requirements of other programs with which a program is designed to operate' limit the scope of copyright in programs because these factors constrain the freedom of design choices of subsequent programmers. Altai, 982 F.2d at 709-10.

Again, there's the word "subsequent". But that word does not appear in Altai anywhere near the concept of "freedom of choice" (only in completely different contexts). Let's look at the freedom-of-choice sentence in Altai (and the previous sentence):

"Professor Nimmer points out that 'in many instances it is virtually impossible to write a program to perform particular functions in a specific computing environment without employing standard techniques.' [...] This is a result of the fact that a programmer's freedom of design choice is often circumscribed by extrinsic considerations such as (1) the mechanical specifications of the computer on which a particular program is intended to run; (2) compatibility requirements of other programs with which a program is designated to operate in conjunction; (3) computer manufacturers' design standards; (4) demands of the industry being serviced; and (5) widely accepted programming practices within the computer industry."

I honestly can't interpret that part as implying the word "subsequent" in the way in which Google's amici interpret it. All five items listed in that sentence undoubtedly make sense for constraints that affected both parties, CA and Altai.

Where Altai filters out elements dictated by external factors, it says this:

"The district court also found that the overlap exhibited between the list of services required for both ADAPTER and OSCAR 3.5 was 'determinated by the demands of the operating system and of the applications program to which it [was] to be linked through ADAPTER or OSCAR.' Id. In other words, this aspect of the program's structure was dictated by the nature of other programs with which it was designed to interact and, thus, is not protected by copyright."

So there was a third program here -- the operating system -- and dictated elements that both programs, the allegedly-infringing and the allegedly-infringed one, needed. It doesn't say that the asserted works dictated anything to the alleged infringers.

I know this isn't legal authority, but interestingly, the Wikipedia article on this ruling understands it this way, too:

"The court found that the similarity in services required by the operating system was due to the nature of the operating system, thus it was not protected by copyright."

Copyright, by definition, protects an original creator against subsequent copying. It doesn't help you against your predecessors. It wouldn't make sense to me if a copyist could get too much mileage out of the mere fact of being subsequent. And I don't think that that's what Altai meant.

There are IP professors supporting both parties' positions. Software companies and creatives are overwhelmingly in favor of Oracle's position. The Federal Circuit will think about what's the best policy to balance innovation and competition, and it will interpret such cases as Altai, so further down the road we'll know which professors are right in the Federal Circuit's opinion.

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