Wednesday, November 19, 2014

Google supporters increasingly recognize flaws of overturned ruling in Oracle's Java copyright case

Google won't leave any stone unturned in its quest for a Supreme Court review of the Federal Circuit's appellate ruling holding Oracle's asserted Java API declaring code copyrightable. My first reaction to the cert petition was that, at least at this particular stage (where all that matters to Google is to get the Supreme Court interested), Google is essentially trying to salvage its reversed district court win on a "right for the wrong reasons" basis. Instead of claiming that there is an interoperability exception to copyrightability, it's now trying to generally raise the bar for software copyright, which creates all sorts of issues.

As if Google had never changed its strategy, various amicus curiae briefs in support of Google's petition for writ of certiorari are still harping on the old Sega/Sony theme. It's largely the same group of people and organizations as in the previous round. I can see why dozens of law professors are unhappy that the Federal Circuit didn't buy their pro-Google argument, but that doesn't make the appellate ruling erroneous in the slightest. Also, I don't think the arguments that people raise against the Federal Circuit now are any better than the ones the Federal Circuit had rejected.

One huge credibility problem the "cert" movement faces here is that it claims the sky is falling but in almost a year since the appellate hearing, at which Google was clearly on the losing track as knowledgeable observers unsuspected of being Oracle allies had also noticed, that anti-software copyright coalition hasn't really grown. The software industry is overwhelmingly on Oracle's side. Amici like HP (which has all sorts of issues, in and out of court, with Oracle), Red Hat (which has a business model that some like to describe as "symbiotic" but which is also in no small part parasitic) and Yahoo (whose CEO was the girlfriend of Google's CEO for a few years) don't counterbalance the support Oracle has from large software (and not just hardware and services) companies. The HP-Red Hat-Yahoo brief is also extremely weak. It basically argues that Oracle should have lost based on Baker v. Selden, a case that was not about verbatim copying but someone trying to monopolize a method by means of copyright and is therefore more than distinguishable from the Android-Java case.

Yesterday I spotted some tweets by critics of the Federal Circuit decision that I wish to briefly comment on. Aaron Williamson, now with a law firm and previously with the Software Freedom Law Center, reiterated his opinion "that Google should have won," but near-simultaneously wrote that "[t]he district court [for the Northern District of California] did sorta bungle [the] merger [doctrine]." (The merger doctrine says that copyright doesn't cover expression if it's inseparable from functionality because of a very limited number of options.)

In this regard, Mr. Williamson (with whom I once had a disagreement on Twitter about some IP issues) agrees with a blog post by another lawyer who once welcomed Judge Alsup's non-copyrightability holding: Tennessee-based (but virtually Californian) Rick Sanders cautions people against believing that only because the Supreme Court recently disagreed with the Federal Circuit on some patent issues, the Federal Circuit would necessarily be wrong on copyright. Mr.  Sanders recalls that he "had publicly supported the now-reversed trial court opinion" but conceded that there was a fundamental mistake--the juncture at which the availability of expressive choices should be determined:

"Only, it's not that simple, and to make it that simple, we have to make a fundamental mistake. It is true that the organization of the API library serves a function: to be intuitive to the 'community of programmers,' so they can easily find the API method they're looking for. But that doesn't make it automatically uncopyrightable, any more than an instruction manual is. If you're Google, then yes, there’s only one way to organize the library--Sun's way. But there's our big mistake. When it comes to copyrightability, we're shouldn't be interested in the actions of the alleged infringer--Google--but of the author, Sun. We shouldn't ask (as we mistakenly did) what choices Google had, but what choices Sun had."

Mr. Sanders then goes on to discuss the Math.Max function, which is not representative of the 7,000 lines of code at issue, but, at any rate, he recalls that "originality is a very low bar": "You just need a spark of human creativity to have an 'original work of authorship.'" That's a fact Oracle's brief on appeal emphasized. And if the Supreme Court declines to even look into this case in more detail, Google and its supporters can blame it on that low hurdle, which makes it obvious that the Java API declaring code can't be held uncopyrightable without a radical departure from a centuries-old principle of U.S. copyright law.

On that basis, Mr. Sanders concludes:

"One thing Oracle really had going for it--and this is emphasized in its appellate briefing--is the sheer size and complexity of the Java API library. Maybe it's mostly dictated by efficiency, but surely somewhere in there is a spark of creativity. Since Google copied the structure verbatim, it's reasonable to assume that Google copied something that didn't merge with the design principle."

In my view, there's not just one spark of creativity in the Java API declaring code. But the key thing is that Google's cert petition has a rather different focus than the district court ruling and Google's argument before the Federal Circuit, and some of the IP lawyers who for philosophical reasons liked Judge Alsup's non-copyrightability holding now concede that the district court's reasoning isn't defensible.

About a year ago at this time, Boston-based technology lawyer Lee Gesmer, who has been a neutral observer of the case as far as I can see, cautioned Google's supporters a few weeks before the appellate hearing that Google could lose on appeal (as it actually did). He was right that "[Judge Alsup's] decision does not give Google a lot to work with, and leaves some gaping holes for Oracle to aim for." That was true a year ago, and it's also going to be a problem for Google in the months ahead.

It's understandable that those supporting Google in this context are not in the best mood, and they don't have much of a reason to be optimistic because even if the Supreme Court decided to hear the case, the only realistic effect would be a delay--but not a complete departure from the principle that even minimally-creative (i.e., far less creative than the material at issue in this case) program code is copyrightable.

I've previously criticized the Federal Circuit bashing in which some of Google's friends engage, and I agree with Mr. Sanders that the reversal rate of recent Federal Circuit decisions in patent cases has nothing to do with this copyright infringement matter. But if you want to criticize the Federal Circuit, please have at least a modicum of respect. I've disagreed with judges from different jurisdictions on this blog but this tweet, which I saw yesterday, is an absolutely unacceptable form of criticism. It shows a video of a garbage truck that throws the waste from a bin onto a sidewalk and a front lawn. This tweeter, Timothy B. Lee, has been campaigning aggressively against the Federal Circuit for a couple of years. One of his more recent articles on Oracle v. Google has this headline: "The court that created the patent troll mess is screwing up copyright too." And that article is one of the "cited authorities" in the EFF's "computer scientists" amicus brief in support of Google's cert petition. Another writing by the same Mr. Lee is cited by the Public Knowledge brief. Again, we all have the right to disagree with judges and to criticize entire courts, but it's misguided to attribute Google's problems in this case to the fact that the Federal Circuit happened to be the appellate forum (because some patents were initially at issue in this case).

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