Saturday, November 8, 2014

Yawn: amicus briefs in support of Google's API copyright petition to the Supreme Court have surfaced

For four years and almost three months, Oracle v. Google has been the most interesting smartphone IP case in my opinion. There were dramatic moments and revelations. There was excitement. When one judge issued a ruling that was unprecedented in terms of holding a vast quantity of highly original material non-copyrightable, I was shocked. There were certain periods, before and especially after that now-reversed decision, when I was pretty much the only guy in the blogosphere to talk about the case at all. But there were interesting developments all the time, even including Google's surprise departure from the central part of its previous argument (not a pleasant surprise from a software developer's point of view, but still, a surprise). However, his morning I experienced my first yawning moment in connection with this case: a couple of amicus curiae briefs supporting Google's petition for writ of certiorari (Supreme Court review) have surfaced, and they're just a rehash of what essentially the same (Google-aligned) groups had already told the Federal Circuit.

The Electronic Frontier Foundation, with which I do agree on various patent reform topics, has filed an amicus brief of computer scientists. Several of them are Google employees; some others are EFF board members. The "short" bios are longer than the brief itself. In 2012/2013 the EFF orchestrated a couple of amicus briefs to the Federal Circuit in the same context, and the fundamental flaw of its argument is still the same: it argues that API-related material must be "uncopyrightable" in order to enable interoperability and, as a result, technological progress. In response to (among others) those briefs, Oracle issued a comment last year regarding collective amnesia about Android not being Java-compatible.

The only gradual change from last year's amicus briefs is that they are now talking a little bit more about why they believe it's not acceptable to relegate, as Federal Circuit Judge O'Malley proposed, interoperability questions to the fair use stage of the analysis. They deny or at least seek to downplay the power of fair use. I read on Twitter that Professor Pamuela Samuelson (Berkeley), the EFF's vice chairwoman, has (like last time) authored an amicus brief by IP professors (one of the signatories mentioned it). Professor Samuelson herself explained the power of fair use extremely well in a 2009 paper entitled "Unbundling Fair Uses":

"It was also too early in the history of computer software industry for Congress in 1976 [when lawmakers decided to make computer program code subject to copyright protection] to have foreseen that developers of non-infringing programs would sometimes need to reverse engineer another firm's program in order to make their programs interoperate with the other firm's program. And the Internet and search engine technologies had yet to be invented in 1976. Fair use has proven quite useful in adapting copyright law in response to these and other new technologies so as to promote competition, technological innovation, and greater public access to information and ability to make use of content."

(emphasis mine)

That paper gives various good examples. By contrast, the examples in the computer scientists' EFF brief don't make sense to me:

  • They start with the original IBM PC BIOS. That one was binary and small. In any event, the primary reason why IBM compatibles came to dominate the world of desktop computing had nothing to do with copyright and everything with antitrust: after the mainframe consent decree, IBM was more cautious and allowed others to make compatible systems.

  • The UNIX API goes back to a time when copyright on computer programs in general was not yet established. And again, there were, or would have had to be sooner or later, antitrust considerations.

  • The C programming language and its standard libraries were much smaller than the Java APIs.

  • Internet and other networking protocols created by organizations like the W3C, which ensure free access by everyone, don't need to be devoid of copyright protection in order to be widely available: they're licensed to everyone for free.

  • The part about cloud computing is a non sequitur. For example, Eucalyptus (now acquired by HP) had a deal in place with Amazon, which the brief even mentions. Once again, this was implementation with the copyright holder's consent.

The latest brief submitted by industry group CCIA (with which I agree on, for example, design patent damages) is also compatibility/interoperability-centric. This means that both the EFF brief and the CCIA brief are still based on the same idea as Google's original argument in this case (the notion of an interoperability exception to copyrightability) but don't really support the substance of Google's certiorari petition.

Just like Google did before, the CCIA also talks about European law. This is basically an attempt to urge the Supreme Court to achieve some kind of transatlantic harmonization. However, there are undeniable differences between the systems, and it's the prerogative of lawmakers, not the courts, to decide whether there should or should not be cross-jurisdictional differences. The CCIA says the following about European lawmakers' intent:

"In 1991, the European Union adopted a Software Directive, which reflects a policy judgment that copyright should not interfere with interoperability."

If what you want is a policy judgment, then Capitol Hill is indeed the right part of the right city to push for it, but you've just chosen the wrong building. The Supreme Court of the United States is concerned with proper interpretation of what Congress decides, and not with making policy judgments for Congress.

I'm not going to discuss the frequently-cited SAS Institute v. World Programming case in detail for now. Suffice it to say that some people blow out of proportion what it meant for copyrightability and that European law is much less flexible in connection with fair uses than U.S. law. I may talk about it some more on some other occasion.

It's clear and obvious that Google and its amici have only one major goal at this stage: to get the Supreme Court interested in taking a closer look at the case. But the kinds of people and organizations who are pushing for this are the same as before, which suggests to me that the Federal Circuit decision didn't shock the software industry at all (contrary to what Google's amici say).

In an article on Google's cert petition, Thomson Reuters/Westlaw quotes Denise Howell, the host of This Week in Law, as saying that the Supreme Court usually likes cases "to be resolved in the lower courts before deciding to engage" (and here, there still is a "fair use" defense to be adjudged). That's another interesting reason for which the cert petition could and perhaps should be denied. To me, the most important reason is that the Federal Circuit decision just affirmed longstanding principles and it wouldn't be possible to deny copyrightability to those 7,000 lines of highly creative Java API declaring code without enormous collateral damage to software copyright as a whole. For more information on the case, please check out my recent post on the most widespread misconceptions surrounding it.

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