Thursday, October 9, 2014

Google's Supreme Court petition in Oracle case suggests sudden departure from previous strategy

Yesterday it became discoverable that Google had, as expected, filed its petition for writ of certiorari (request for the Supreme Court of the United States) in Oracle's Android-Java copyright case on Monday. Meanwhile the document has also come to light (this post continues below the document):

14-10-06 Google petition for writ of certiorari in Oracle (c) case.pdf by Florian Mueller

I'll discuss these issues in more detail when Oracle's response is known, but I did want to share a few observations.

Notably absent from the table of authorities (pages 8-11 of the PDF document) are the Sega and Sony Ninth Circuit decisions. Google had argued--successfully before the district court, unsuccessfully before the appeals court--that those cases established an interoperability exception to the scope of copyrightability in the Ninth Circuit. The Federal Circuit clarified that they did not, and that they were fair use rather than copyrightability cases. That's what I had been saying for a long time. Maybe Sega and Sony will still come up in Google's argument, but the cert petition suggests (for other reasons as well) a departure from Google's strategy in the first two rounds. It appears (again, this is not definitive yet) that Google's Supreme Court appeals team, led by King & Spalding's Daryl Joseffer, has jettisoned the Judge-Alsup-is-the-way-and-the-light kind of logic in favor of a new focus that is, at least at first sight, almost tantamount to a Judge-Alsup-was-right-for-the-wrong-reasons argument.

I had previously noted that one apparent weakness of Google's argument in Round 2 was the lack of a proposed alternative basis for arriving at its desired result. Otherwise I'd be (even) more surprised now. But many (if not all) of Google's allies in this context will presumably be unhappy about this modified strategy.

Now, at least in the cert petition, it's all about statutory interpretation--the relationship between 17 U.S.C. § 102(a) and § 102(b). In this post, published between the Federal Circuit hearing and the opinion, I described this as follows:

In a nutshell, §102 a giveth (defines what is copyrightable) and §102 b taketh away (defines what copyright does not extend to), but not in the sense of a straightforward subtraction: it's more like §102 a defining what types of works are copyrightable and §102 b ensuring that enforcement doesn't reach further beyond. For example, you get a copyright on a cookbook under §102 a, but §102 b ensures that you can't use that copyright and sue everyone who cooks a meal according to your book. For software, it means creative code (including declaring code) is copyrightable, but you can't assert broad patent-like monopoly rights later over methods of operation.

Google's counsel misrepresented Oracle's position on copyrightability by saying that "the basic structure of the copyright statute is you have (a) and (b), and they're proceeding as though (b) doesn't even exist -- they're saying 'if it's creative under (a), boom, you're home.'" Circuit Judge O'Malley contradicted immediately and firmly: "I don't think that's what they're saying at all. No. They're just saying that a method of operation [which copyright does not extend to] should be looked at at a more abstract level." She got this so right: contrary to Google's counsel's representations, Oracle does not want to use copyright to monopolize abstract concepts such as the idea of having a function that determines the greater of two numbers -- Oracle just claims copyright in a body of work that involves in this case many thousands of lines of highly creative declaring code, which is concrete and not abstract. It's about specific expression, not about high-level concepts and algorithms.

The question Google would like the Supreme Court to look at is now detached from Ninth Circuit case law:

"Whether copyright protection extends to all elements of an original work of computer software, including a system or method of operation, that an author could have written in more than one way."

Here, even more clearly than with respect to Sega and Sony, Google throws Judge Alsup's reasoning under the bus and abandons a cornerstone of its own original theory. For years Google argued that the flexibility to write code in more than one way had to be determined based on limitations to the freedom of Google's Android developers after they made the choice to build something Java-like. Oracle consistently argued that this was the wrong point in time to focus on. What mattered was that Sun Microsystems, when it created Java, could have designed those APIs differently. Google's question for the Supreme Court tacitly recognizes that Oracle was right all along on this one.

There's nothing wrong with Google, better late than never, accepting a certain reality. That's actually very positive. There's only one word in this question that I think is misleading: "written" (before "in more than one way"). The Federal Circuit referred to "multiple ways to express [an] underlying idea" (emphasis mine), and creative expression is a key concept. Not everything that is written is expressive.

Apart from this terminology issue, I consider this proposed question a smart choice. It makes far more sense than suggestions that there is an interoperability exception to copyrightability (though certain passages of the petition, by referring to compatibility, are very much like Google's argument in the first two rounds).

There's this saying that a fool can ask a question a wise man can't answer. Here, it's pretty much the opposite: it's a question asked by smart people but the answer is a no-brainer. Yes, the threshold for copyrightability is very low under U.S. law. This case won't change that fact.

In order to get the Supreme Court interested, Google talks a lot about an allegedly deep and well-recognized circuit split on § 102 interpretation in connection with the functional aspects of computer software. I won't deny that there are differences (and yes, the Supreme Court was divided over the Lotus case on a menu structure), but the Android-Java case has nothing to do with a line-drawing problem. This one is far, far above the differences between circuits that Google talks about (and partly seems to overstate). This is not about a simple menu structure with a few dozen commands in a two-dimensional or tree structure. It's not about a compilation of previously-existing data. This is not about a very small amount of original, creative, expressive material. Instead, this is about 7,000 lines of (concededly) highly-creative declaring code. Google can't point to any example in which a court of appeals (or even a district court, prior to Judge Alsup's reversed ruling) held anything like that non-copyrightable. I could easily see the need for the Supreme Court to resolve a conflict between circuits if, for example, the Ninth Circuit had not held something like this copyrightable while one or more other circuits had. But that is not the case.

In the circuit-split context, Sega and Sony actually do come up, but without being explicitly mentioned:

"If the Federal Circuit's view of Ninth Circuit precedent is correct, that circuit is in conflict with other circuits on all of those important points of law. If the Federal Circuit's understanding of Ninth Circuit law is wrong, the Ninth Circuit is still in conflict with the courts on the other sides of the circuit splits."

I agree with the second sentence (except that I think the Federal Circuit is right). An interoperability exception to copyrightability would indeed make the Ninth Circuit a complete outlier. But the first sentence misses the point: the Federal Circuit simply interpreted Ninth Circuit precedent as not saying what Google claimed it said. That's different from interpreting Ninth Circuit law in a way that constitutes a conflict between circuits.

Google's Supreme Court lawyers are now trying to win a war someone else lost (a movie quote). They try not to repeat the mistakes of the past, but there is one argument that would have been more likely to work in the Federal Circuit than it is to help Google now: the claim that holding 7,000 lines of highly-creative declaring code copyrightable blurs the line between patent and copyright law. The Federal Circuit has exclusive appellate jurisdiction over patent law, not over copyright law, and as a result hears way more patent than copyright cases. If this claim of a patents-copyright conflict didn't get traction there, it's even less likely to get traction with the Supreme Court justices. In any event, it's wrong because those intellectual property rights protect different aspects of software, but a piece of software can, of course, be protected by copyright (for the expressive part) and patents (for technical inventions) at the same time. Someone who copies 7,000 lines of highly-creative declaring code may infringe copyright and patents at the same time--that's why it's much safer not to do so without a license.

I've saved the worst for last -- the ultimate #facepalm in Twitter lingo:

"If the Federal Circuit's holding had been the law at the inception of the Internet age, early computer companies could have blocked vast amounts of technological development by claiming 95-year copyright monopolies over the basic building blocks of computer design and programming. By the time Google and countless other innovators even came onto the scene, others could have locked up the field for longer than most people will live."

I don't even have to go into details of Google's examples, such as the QWERTY keyboard layout, which is just so far from 7,000 lines of declaring API code. The above suggestion that innovation in information technology could have been prevented by incumbents just because expressive program code is copyrightable is really absurd. It's reminiscent of--but even more inaccurate than--what Bill Gates said in 1991 about software patents in a Microsoft-internal memo:

"If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique."

By now Bill Gates has distanced himself completely from this statement. Even just a few years later, Microsoft had already become a very active patent filer, and a little over a decade later it was lobbying for software patents (in Europe), but despite owning tens of thousands of operating system patents it has been unable to prevent Google's Android from becoming not only the world's leading mobile operating system but also the leading operating system across all types of connected devices.

The problems with those theories include that they don't take into account the limitations of intellectual property rights that can be worked around and they ignore the potential effects of compulsory-licensing obligations under antitrust law (Microsoft experienced this in its big EU competition case). This kind of theory didn't work out for patents, but there are two reasons for which there is less of a need for concern when it comes to copyright: software copyright has a considerably narrower scope than software patents, and copyright law has a "fair use" defense, for which there is nothing comparable under patent law at least in the U.S. and Europe (FRAND is different; it's an antitrust concept).

If Google loses the copyrightability battle and the case goes back to the district court for a retrial on "fair use", some of its current argument that it absolutely needed to design Android so as to attract Java programmers to the platform can be held against it when it comes to damages and injunctive relief. Google was negotiating a Java license. It decided to go ahead without one. That's the problem it has now. If copyright law doesn't support this behavior, it does what it's supposed to do. Nothing more and nothing less.

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