Friday, May 15, 2015

Copyright in declaring API code: here's why I don't have any competition concerns (Oracle v. Google)

Reuters' Dan Levine, a world-class court reporter, has just published a story on what's going on behind the scenes of the U.S. government's decision-making ahead of its Supreme Court brief in Oracle v. Google.

Mr. Levine's article says both parties recently argued their position to the U.S. government, and a larger meeting room than usually was required because of all the government lawyers who were interested in hearing Oracle and Google's versions of the story. It's unclear why so many officials wanted to attend. Google's White House connections and overall Washington lobbying efforts are well-known. The combined relevance of the two parties to the U.S. economy (especially its most innovative part) is also beyond doubt. Such factors are completely detached from the Supreme Court's certiorari criteria, which are centered around the legal issue per se.

Reuters quotes Charles Duan from the Public Knowledge group saying that the Federal Trade Commission (FTC) and the antitrust division of the Department of Justice (DoJ) "were very interested in the competition implications of the case." Again, there's any number of reasons to be interested in a legal fight between two large Silicon Valley players, but as a software developer (a company I founded last year will launch two apps--in completely different game genres--later this year) who has spoken out on a number of information technology competition issues over the last 10+ years I don't see the slightest reason for competition enforcers to be concerned. (The article doesn't say "concerned.")

Much to the contrary, I'm concerned that the industry would become less competitive, on balance, if Google's proposed weakening of software copyright became the (new) law. There are situations in which limits to IP protection (and/or enforcement) are necessary in order to have a healthy competitive environment. I've taken that position in connection with standard-essential patents (SEPs) for years, and I believe regulatory authorities should start to take action against privateering, such as in connection with Nokia's proposed acquisition of Alcatel-Lucent. However, this here is one of the contexts in which a reasonable degree of protection and enforceability is a prerequisite for fair competition.

When thinking and talking about the competition implications of software copyright, these are the top three things to bear in mind:

  1. Software copyright is unbelievably narrow as compared to software patents.

  2. Software copyright is unbelievably narrow as compared to software patents.

  3. And don't forget: software copyright is unbelievably narrow as compared to software patents.

I have an example that involves Google with the shoe on the other foot. A year and a half ago, the Federal Patent Court of Germany narrowed a Motorola patent over which Google's Motorola had won and (for 19 months) been enforcing an injunction against Apple, and over which it tried to also obtain one against Microsoft. It was also suing Apple over the U.S. equivalent of this patent in the Southern District of Florida. The aforementioned injunction required Apple to deactivate push notifications of new messages for German iCloud users. They still got their email, but their devices had to check periodically for new messages instead of being notified. The whole validity debate in the Federal Patent Court was about whether the patent covered all synchronization between two devices ("push" and "pull"), or just push notifications. Here, Motorola had an interest in arguing that it was just as broad as it needed it to be, but not broader, since broader patents are more likely invalid. But even Motorola still claimed that it covered all push notifications, and the court found it covered pull techniques as well.

That's just one of countless examples one could give for how ridiculously broad software patent claims typically are.

The "breadth" of software copyright is pretty much nothing compared to that. Not absolutely nothing, but almost literally nothing.

Even the narrowed version of the aforementioned synchronization patent, while commercially useless except that Google/Motorola could have tried to limit the wrongful enforcement damages it owes Apple by claiming that there had been some infringement at any rate, is far broader than any copyright at issue between Oracle and Google.

There were some filings, including the flawed district court ruling, that could lead someone to believe that this was about Oracle using copyright to monopolize functionality. There's probably no appeals court in the whole wide world that hears more attempts to monopolize functionality than the Federal Circuit, which hears all patent infringement and validity appeals in the United States. But the Federal Circuit understood very well that Oracle's case here is all about the literal copying of 7,000 lines of concededly highly-creative, expressive material.

Sure, if Oracle's appellate victory stands, it doesn't mean that only the combination of all 7,000 lines is protected: significant subsets, such as 6,000 lines, would certainly also be protected (though a jury would then have to make an infringement determination). But isolated lines that define a Math.Max function that gives you the greater of two values still wouldn't be monopolized.

A patent claim with a dozen or so claim elements (limitations), each of which can be asserted meritoriously or not) to have a broad meaning, can be a threat to competition. I'm quite sure neither Apple nor Microsoft even knew about that crazy Motorola synchronization patent (they presumably never read it before they were sued, and if anybody did, the description sounded like this was just about pagers, an obsolete technology). By contrast, Google admitted to literal copying of the material at issue in the Oracle case. It had no other choice because no one would realistically believe that someone just "happens" to independently come up with 7,000 lines that are identical to the corresponding lines in something that existed before.

This case is not about whether copyright is broad or narrow. Copyright is narrow and always will be.

There is some undeniable, inherent tension between intellectual property, which is about creating monopolies, and antitrust, which is about preventing the abuse of monopolies. But this doesn't make the two disciplines enemies. Broad IP-based monopolies are a problem for competition. Narrow intellectual property is far less likely to raise concerns unless you aggregate tons of it (for example, if someone bought up a large part of all copyrighted music that consumers want to buy) or own a single, very critical piece and abuse your ownership position.

The former is easy to imagine. The latter is not. The program code you write won't become critical for the industry at large unless you get many developers to write code for it, and that won't happen unless you allow an ecosystem to thrive.

But even if it happened nevertheless, the FTC and the DOJ know, as do their counterparts in many other jurisdictions, that compulsory licensing (on FRAND terms) is the appropriate remedy.

In the open source community I've heard numerous times that there is always concern about Microsoft (or other proprietary software companies) pursuing "embrace, extend, extinguish" strategies:

  • "embrace" = the ill-meaning rival adopts a competing technology

  • "extend" = then some features are added, which third parties will rely on and the ill-meaning rival owns exclusively

  • "extinguish" = the effect of the extended technology becoming more popular and displacing the original

Small software companies can thwart an embrace-extend-extinguish strategy only by means of IP enforcement, which allows the little guy to succeed and is, in turn, pro-competitive. As Greek tragedian Sophocles wrote thousands of years ago, "in a just cause the weak will beat the strong." Software copyright has much more to do with justice than software patents.

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