In the last weeks of December, five amicus briefs were submitted in support of Arista in its ongoing copyright infringement litigation with Cisco. The briefs provide a strong basis for the Federal Circuit to affirm the jury verdict in favor of Arista.
As previously discussed in DisCo, Arista and Cisco are competitors in the network switch market. In the operating system that controls its switches, Arista replicated roughly 500 Command Line Interface (CLI) commands of the over 15,000 CLI commands Cisco employed in its operating system. Each command consists of between two and four words. Cisco controls over 80% of the network switch market, and Arista, a newer entrant, used the Cisco commands it believed network engineers would expect to find in any switch.
Cisco sued for patent and copyright infringement. The patent claims were dismissed at an early stage of the litigation. Cisco argued to the jury that Arista infringed the copyright in the compilation of the 500 commands. In December 2016, the jury found in favor of Arista on the grounds of scenes a faire—a venerable doctrine under which courts deny protection to expression that is standard, stock or common to a particular topic or that necessarily follows from a common theme or setting. In May 2017, the district court rejected Cisco’s motion for a judgment as a matter of law, finding that substantial evidence had been introduced at trial to support the jury’s scenes a faire verdict.
Cisco appealed to the Federal Circuit, which has jurisdiction over the appeal because of Cisco’s patent claim, even though Cisco is not appealing that dismissal. In its brief, Cisco relied heavily on the Federal Circuit’s 2014 decision in Oracle v. Google, a case that is now back before the Federal Circuit. Cisco argued that its compilation of commands reflected great creativity and originality, and was not constrained by industry standards. In its brief opposing Cisco’s appeal, Arista listed the extensive evidence presented to the jury concerning the constraints operating on Cisco as it assembled the commands in its CLI. Arista also provided several alternative grounds for affirming the decision below, many of which were elaborated on in the amicus briefs.
Professor Pam Samuelson
Professor Pam Samuelson of U.C. Berkeley Law School argued that the scenes a faire doctrine was more robust than suggested by Cisco. In particular, Cisco asserted that scenes a faire is concerned only with the constraints exerted on the copyright owner, not on the defendant. Professor Samuelson cited extensive authority indicating that the scenes a faire doctrine also considers the external constraints exerted on the defendant. Thus, whether the CLI commands at issue were industry standards could be assessed at the time Arista copied them, not only at the time Cisco compiled them. Further, Professor Samuelson argued that Cisco’s argument that it had a copyright in the compilation of commands was incoherent given that there was no free-standing work constituting a compilation of commands.
Electronic Frontier Foundation
EFF challenged Cisco’s reliance on Oracle, contending that there was intervening Ninth Circuit authority, Bikram’s Yoga College v. Evolation. In that 2015 decision, the Ninth Circuit ruled that a sequence of yoga positions was an unprotectable system, even though many sequences were possible, because the specific sequence at issue was arranged to bring about a particular result. Similarly, the commands selected by Cisco were selected to bring about a particular result, and thus were a system or method of operation unprotectable under 17 U.S.C. 102(b).
Computer & Communications Industry Association and American Antitrust Institute
CCIA and AAI jointly filed a brief that stressed that courts sought to prevent copyright from compounding the problem of customer lock-in to the systems of a particular computer vendor. For example, the First Circuit in Lotus v. Borland found that the command structure of the Lotus 1-2-3 spreadsheet program was an unprotectable method of operation; otherwise, Lotus users would be locked-in to the Lotus system by virtue of their significant investment in learning and writing programs using the Lotus commands. In this case, granting copyright protection over the Cisco commands would lock customers who had purchased Cisco switches into the Cisco environment.
Public Knowledge’s brief observed that standard setting organizations (SSOs) all have patent policies, but few had copyright policies. The patent policies require members to license all patents incorporated into a standard on fair, reasonable, and nondiscriminatory (FRAND) terms. The absence of copyright policies, even among SSOs that have adopted standards incorporating CLIs, indicates that computer industry participants do not believe that CLI commands are protectable under copyright.
Github, Mozilla, Engine Advocacy, and Software Freedom Conservancy
These technology companies and innovation-focused organizations argued that copyright law must allow breathing room for software interoperability and innovation. Their brief demonstrated that the reuse of CLI commands was a widespread practice in the computer industry, and reversal of the jury verdict would have a negative impact on innovation and competition.
Collectively, these amicus briefs provide strong support for Arista’s argument that the Federal Circuit should affirm the decision below.
 CCIA and AAI also dismissed the arguments made in the one amicus brief filed in support of Cisco (joined by Mathworks, SAS Institute, Adobe, Synopsis, Oracle, and Symantec) that failure to reverse the lower court would eviscerate copyright protection for computer programs. CCIA and AAI noted that Arista had not copied a single line of code; the case concerned only the so-called compilation of CLI commands.