The Obama Administration may open its doors to Google more frequently than to any other IT company, but it doesn't buy absurdities from Mountain View. It's good news for software developers that the Solicitor General of the United States (the top lawyer representing the U.S. government before the Supreme Court and number two official at the Department of Justice) opposes Google's petition for writ of certiorari (Supreme Court review) in Oracle's Android-Java copyright infringement case. The high court had asked the government to inform it of the views of the United States. From the beginning I attributed that request to Google's amicus brief campaign, which changes nothing about the deafening silence from the software industry at large, rather than anything substantive.
As for substance, or more precisely the lack thereof, these two quotes say it all:
"That argument lacks merit." (referring not to a limited portion of Google's petition but to the essence of Google's statutory argument)
"[Google]'s Section 102(b) argument also suffers from a broader flaw." (this sentence transitions from the Administration's rejection of Google's suggestion that declaring code is inherently more functional and less expressive than implementing code to the DoJ's agreement with Oracle's lawyers on the purpose of Section 102(b))
Even worse for Google, the DoJ's filing also contains a statement that is damning for its "fair use" argument:
"The Android platform uses the Java programming language, but [Google] purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."
While the filing does say that certain of Google's arguments are relevant to the "fair use" analysis that should be the next step in the DoJ's opinion, relevance is different from merit. Interoperability is generally relevant to fair use. I don't know anyone who would disagree. But the U.S. government has also concluded that Google can't make a "fair use" argument based on compatibility or interoperability because of the specifics of this case.
Even in commenting on the Solicitor General's filing, Google simply ignores the fact that Android was designed not to be interoperable with Java programs. Law.com quotes Google on the DoJ filing with the following sentence:
“We still look forward to defending the concepts of interoperability that have traditionally contributed to innovation in the software industry."
Good luck trying to "defend the concepts of interoperability" when everyone including the U.S. government has already figured out that there is no interoperability case (unless one stretches the meaning of the term to a nonsensical extent).
The timing of the DoJ's filing enables the Supreme Court to make a decision on Google's cert petition next month, before the summer break. The court will give significant weight to the views of the U.S. government but is free to hear the case regardless. While the outcome is not predictable, denial would be the best thing that could happen from a software developer's point of view and the DoJ's input makes it more likely for two reasons:
The DoJ completely dismantles Google's Section 102(b) argument. In particular, it rejects the notion that declaring code (headers) should be less copyrightable than implementing code:
"Both declaring code and implementing code ultimately perform the same practical function: They instruct a computer to work. The declaring code tells the computer to call up the implementing code, and the implementing code tells the computer to perform an operation, such as executing a sorting algorithm."
Actually, declaring code may be even more copyrightable:
"Declaring code may be one step further removed than implementing code from the ultimate operation that a computer performs."
Very importantly, the Solicitor General agrees with Oracle's counsel on appeal, Orrick's Joshua Rosenkranz, who had said at the appellate hearing that Section 102(b) does not limit copyrightability according to Section 102(a) but the scope of the rights conferred:
"The basic purpose of Section 102(b), however, is not to distinguish between copyrightable and uncopyrightable portions of a larger work of authorship, but rather to distinguish between the work of authorship itself and something else—be it an idea, a process, or a method of operation—that the work of authorship describes or explains."
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.
As I said before, the Supreme Court might already have rejected Google's cert petition if not for the well-orchestrated but duplicative, echo chamber-like amicus brief campaign. The amicus curiae briefs all suggested that there was a huge public interest issue at stake here. But without a very few exceptions that had their specific reasons to side with Google on this one, software companies are on Oracle's side. They elected not to speak out at the cert stage (though I don't have the slightest doubt they would if the petition was granted). The court couldn't have sent a letter to the likes of Apple, Microsoft and IBM about this, so it asked the U.S. government, which is in frequent contact with leading industry players and presumably also received, solicited or unsolicited, input on this from key U.S. companies.
A couple more things. The U.S. government agrees with Oracle that Google's petition is premature because its "fair use" defense has not been adjudicated yet. When Oracle made this argument, I said that this is not a key consideration for the Supreme Court, but I take note of the fact that the DoJ does view this as an additional reason to decline Google's petition. The DoJ's final point is about the suitability of this case for a first Supreme Court ruling on the application of §102 to computer software:
"[T]he parties and the courts below have devoted considerable attention to questions—such as the distinction between declaring code and implementing code, the technical significance of various features of the Java Standard Library, and the degree to which Java programmers possess familiarity with [Oracle]'s prewritten methods—that may have little significance in more common disputes. The [Supreme] Court's resolution of this case therefore might not cast meaningful light on the proper resolution of more typical copyright infringement cases involving computer programs."
I've said it before that the only way the Supreme Court could ultimately rule in Google's favor here would wreak havoc to software copyright as a whole. Even just a decision to hear the case would be an undesirable development at a time when patent protection for computer software faces growing uncertainty. But if I was wrong and there could be a narrow ruling in Google's favor, it wouldn't be helpful because this case is simply not representative of the cases that usually involve software copyrightability questions.
Whom has Google convinced so far? Apart from its network of friends, and their friends' friends, just a single district judge. Three IP-specialized appellate judges unanimously overturned that erroneous decision. And now the U.S. government also agrees with Oracle that the judge in California had made a mistake.
[Update] Below please find a copy of the Solicitor General's brief expressing the views of the United States.
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