Wednesday, December 31, 2014

Deafening silence from software industry presents credibility problem for Google's Supreme Court petition

Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android-Java copyright infringement case has been distributed to the offices of the Supreme Court justices for consideration at their January 9 conference. Oracle responded to the petition on December 8, and two weeks later, Google's reply to Oracle's response was filed. It took me a while to obtain the filing. Here it is (this post continues below the document with some observations):

14-12-23 Google Reply Brief in Support of Cert Petition by Florian Mueller

Google's brief states at the very start that Oracle couldn't "dispute the exceptional importance of the question presented" and goes on to emphasize, as the document also does toward the end, "the seven amicus briefs representing the views of more than two dozen industry leaders, 77 pioneering computer scientists, numerous industry and public-interest groups, and 41 law professors."

As for importance, it's key to distinguish between different kinds of importance. Just like things can be important while not being urgent, things can be important in some ways but not in the ways that warrant a Supreme Court review. Without a doubt, the amicus briefs that have been filed here (an orchestrated, not organic outcry) will help Google get the attention of the top U.S. court. But the copyrightability of 7,000 lines of highly-creative and highly creatively-structured lines of declaring code is not important in the sense of something that needs further clarification.

Google's friends and employees, and their friends and employees, have gotten some people to sign some amicus briefs. There's a few dozen people who are upset because the Federal Circuit (rightly) disagreed with their positions including a surreal compatibility exception to copyrightability. So they're banging their heads at the next wall. But what about those who should really care: the software industry?

Software isn't hardware or services. Industry isn't individuals.

Google's amici are not the leading software industry players. Whatever accomplishments some individuals (some of whom I like and all of whom I respect) can point to, they don't have legal departments available to them who can explain to them how software copyright law works (and does not work). They can be misinformed and misguided. It happens all the time even to the best people.

With the greatest respect, those individuals can have opinions, political preferences and laundry lists of ways in which they'd like the law to be changed or interpreted, but they don't -- they just don't -- represent the software industry.

Nor do hardware and services companies. Red Hat, for example, may support Google on this and may have its own Java-related business interest in weak IP protection. But it mostly distributes or rents out software written by others. This is a company that monetizes software to a far greater extent than it actually creates software. Call it symbiotic if you like those guys, call it parasitic if you have a critical perspective, but no one can tell me that Red Hat is in the slightest way representative of the (U.S.) software industry.

Google's biggest credibility problem when it points to its amicus briefs is not in the briefs that were filed and in the easily-researchable connections between various signatories (for example, some of them are simply Google employees). It lies in the conspicuous absence of amicus briefs from the (real) software industry.

Apparently, companies like Microsoft, who file amicus briefs all the time but didn't do so at this particular stage of this case, have elected to treat Google's cert petition with silent contempt. That silence speaks louder than words.

It's obvious that those companies, which have made and continue to make an enormous contribution to U.S. economic growth and employment, wouldn't have supported Google. They're firmly on Oracle's side as the amicus briefs they filed with the Federal Circuit (after the district judge shocked them with an outlier decision that the appeals court fortunately reversed) demonstrated almost two years ago. Here's an alphabetical list of the industry players that supported Oracle directly or indirectly through BSA | The Software Alliance (including some that are not exclusively software makers, but even they have at least very substantial software divisions): Adobe, Apple, Autodesk, Bentley Systems, CA Technologies, CNC Software - Mastercam, EMC, IBM, Intel, Intuit, McAfee, Microsoft, Minitab, NetApp, Progress Software, PTC, Quest Software, Rosetta Stone, Siemens PLM Software, Symantec, TechSmith, and The MathWorks.

So why didn't they file amicus briefs in support of Oracle's opposition to Google's Supreme Court petition? I guess the reason is they don't see that the Federal Circuit decision was a big deal for the industry at large. The district court decision shocked them into action. The Federal Circuit opinion means business as usual. Back to normal.

I have no doubt that those kinds of companies would speak out in support of Oracle's position again should the Supreme Court grant Google's petition because what Google tries to achieve here, though it is a long shot, is the opposite of what has so far enabled the U.S. software industry to thrive. But statistically the fewest petitions succeed, and for now the U.S. software industry doesn't care, though everyone knows that Google has the expertise, the resources and some loyal friends that enable it to present its petition as a more interesting matter than it actually is.

While I'm kind of tired of this whole process and would really prefer for this thing to be settled or (at least) to go back to district court for further progress, I've been following this case for almost four years and a half and may comment further on on Google's reply brief in the days ahead. Only because Google puts its orchestrated amicus briefs front and center, I wanted to highlight the fact that by far and away the most relevant kinds of potential amici curiae on this issue -- leading software companies that create, enhance and implement APIs -- don't give a damn at this stage. Which also says something.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

Share with other professionals via LinkedIn: