Jon’s posts on the Federal Circuit’s Oracle v. Google decision Friday and yesterday covered most of the bases, and other accounts have not been any more charitable. In fact, most have been less so. (e.g., this, this, or this).
Jon’s post alluded to an extraordinary strawman in the court’s opinion, but it needs to be appreciated on its own. The Federal Circuit contends that parties before it “seem to suggest that software is or should be entitled to protection only under patent law – not copyright law.”
This is surprising, because no one said that. In fact, as Jon pointed out, Google’s counsel said precisely the opposite. How do we know this? You didn’t have to sit through the oral argument; the Federal Circuit itself quotes him saying “it is not our position that none of Java is copyrightable.” (opinion at p. 29)
So, having quoting that, its rather odd to turn around and say, as the Federal Circuit does, that it is being invited to say none of Java is copyrightable, and is only patentable. (opinion at pp. 68-69)
The actual argument – established law in the Ninth Circuit – was merely that some APIs, those necessary for interoperability, are not copyrightable. It was acknowledged that, to the extent one seeks protection for procedures that are not “expression,” then such was the domain of patent. (The brief I co-authored specifically explained that even if “interface specifications necessary for interoperability are not protected, … Title 17 still provides ample protection, without going through the effort of a patent prosecution” – thereby acknowledging both options.)
The court’s opinion transforms this argument into an elaborate, imaginary assault on the entire Copyright Act, which for good measure conflates APIs with programs. It muddles the argument that some APIs shouldn’t receive copyright protection into ‘no API should receive copyright protection.’ This, as the Federal Circuit itself reminds us, wasn’t what was said at oral argument.
From that, it muddles the argument that ‘no API should receive copyright protection’ into ‘no software should receive copyright protection.’ Finally, the Federal Circuit turns ‘no software should receive copyright protection’ into ‘software should only be protected by patents.’ Which no one argued.
So, to recap: APIs necessary to interoperate are copyrightable because software patents. Also, Chewbacca.
Thus, the Federal Circuit “declines [an] invitation” that no one extended: “to declare that protection of software programs should be the domain of patent law, and only patent law.” This is the one place I agree with the opinion. I agree that would be a pretty extreme position to take. Which might explain why no one did.
I think these logical flaws tell us something. First, they suggest an inability to differentiate software programs from APIs – the expressive thing from the rules that thing follows. This is worrisome technical mistake for a court frequently presented with technical disputes, given how thoroughly this issue was briefed. Second, and more troubling, they suggest an inability to conceive that there might be something out there that is regulated by neither copyright nor patent. We can take some solace in the fact that the Federal Circuit interpreting Ninth Circuit law is not binding on any district court, but the opinion’s reasoning is nevertheless problematic.