Just after Memorial Day, entities and individuals supporting affirmance of the jury’s fair use verdict in the Oracle v. Google litigation filed amicus briefs with the U.S. Court of Appeals for the Federal Circuit (“CAFC”). DisCo previously discussed the jury’s May 2016 verdict here and the district court’s denial of Oracle’s motions for a new trial here and here. DisCo then reviewed Oracle’s March 2017 brief on appeal here, and how even Oracle’s amici recognized the essential nature of fair use here.
Of course, this is the second round of this case before the CAFC. In 2014, the CAFC reversed the district court’s 2012 holding that the declaring code of the Java Application Programming Interfaces (APIs) replicated by Google in the Android operating system. DisCo criticized the many flaws of the CAFC’s decision here, here, here, and here. Google petitioned the Supreme Court to review the CAFC’s decision, but the Supreme Court declined to do so, perhaps persuaded by a poorly reasoned brief by the U.S. Solicitor General. Thus, the case was remanded back to the district court for consideration of the fair use issue, bringing us to the current appeal.
Eight amicus briefs were filed in support of Google:
- 42 Intellectual Property Law Professors
- 76 Computer Scientists
- American Antitrust Institute
- Computer & Communications Industry Association
- Electronic Frontier Foundation and Public Knowledge
- Engine Advocacy, the App Developer Alliance and GitHub
- Microsoft, Red Hat and Hewlett Packard
Some of the highlights of these briefs are discussed below.
The CAFC likely will find the brief filed by Microsoft and Red Hat particularly persuasive—and not only because of the strength of its argument. Throughout the various stages of this litigation, Google’s amici have argued that permitting new entrants to use the interface specifications of existing platforms is essential for innovation and competition in the software industry. This, of course, is an argument that one would expect new entrants and smaller firms to make. What makes this argument so powerful coming from Microsoft and Red Hat is that these firms are such market leaders in the development of software platforms. Microsoft’s Windows remains enormously successful in the desktop operating system market. Its Xbox is the one of the world’s three most popular game consoles. Its market capitalization is $525 billion and its annual profits exceed $20 billion. For its part, Red Hat is the world’s leading provider of open source software, including the world’s leading enterprise Linux platform. Its market capitalization is over $15 billion and its annual profits are close to $300 million.
Despite Microsoft and Red Hat offering very successful software systems, their brief points out that these companies also rely on software interoperability. It argues that:
- “Today’s software ecosystem has developed to allow consumers to access their data from numerous interoperable platforms, like Windows, Android, iOS, and Linux, running on myriad different devices.”
- “That interoperability is made possible by the industry’s settled understanding of what does and does not constitute fair use of software code.”
- “Were the Court, in deciding this case, to alter the existing balance between copyright protection and fair use, it would have a profoundly destabilizing effect on the entire industry.”
When market leaders such as Microsoft and Red Hat argue that reversal of the jury’s fair use finding “would have a profoundly destabilizing effect on the entire industry,” the CAFC is sure to take notice.
Briefs Discussing “ACIS”
Three different briefs—filed by IP law professors, Engine Advocacy, and CCIA—focused on how Sun and Oracle previously were members of an advocacy group that argued that program elements necessary for interoperability fell outside the scope of copyright protection. (Sun developed the Java APIs and was acquired by Oracle in 2010. Oracle sued Google over the Java APIs after acquiring Sun.) Indeed, Sun’s Deputy General counsel was Chairman of the American Committee for Interoperable Systems (“ACIS”). However, the amici used this history in different ways.
- The IP law professors argued that Google could have reasonably have believed that copyright did not protect the declaring code at issue in this case based on positions taken by ACIS “in support of freedom to reimplement software interfaces.” The law professors contended that the reasonableness of this belief buttressed Google’s argument that it acted in good faith, a relevant factor in the fair use analysis.
- Engine quoted from an ACIS amicus brief filed in the Supreme Court in Lotus v. Borland to support its argument that interoperability promotes innovation. ACIS wrote that “if the developer of one part of the environment can use copyright law to prevent other developers from writing programs that conform to the system of rules governing interaction with the environment—interface specifications, in computer parlance—the first developer could gain a patent-like monopoly over the system without ever subjecting it to the rigorous scrutiny of a patent examination.”
- CCIA used the ACIS history to respond to Oracle’s complaint that it was entitled to a new trial because the district court excluded evidence about the harm Android caused to markets other than the smartphone market. CCIA noted that the district court also excluded evidence concerning ACIS in an effort to keep the case manageable for a jury. CCIA argued that “if Oracle is granted a new trial to allow evidence of the impact on the desktop market…then Google should be allowed to introduce evidence on Oracle’s reversal of its legal position.” CCIA observed that “in the equitable balancing underlying the fair use doctrine, the jury could have weighed this flip-flopping heavily against Oracle.” (The CCIA brief also responded sharply to the characterization in the amicus brief submitted by former Sun executives that Google’s objective was “to steal the legions of developers already using the Java platform.” CCIA observed that “developers are people, not property. Oracle’s copyright in the declaring code does not give it ownership of Java developers.”) (I am the counsel of record on the CCIA brief.)
Electronic Frontier Foundation
EFF and Public Knowledge advanced perhaps the most aggressive position of any of the amicus briefs, calling on the CAFC to reverse its earlier ruling that the Java APIs were protectable subject matter. EFF noted that the CAFC had reached this conclusion largely because it found that Sun had multiple ways of expressing the underlying idea. However, in Bikram Yoga College v. Evolation Yoga, the Ninth Circuit confirmed that “the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.” (The CAFC in this case is required to apply the Ninth Circuit’s interpretation of copyright law because the case arose in the Ninth Circuit.) EFF asserted, “because of this change in what the Court believed Ninth Circuit law to be, the Court should revisit its previous opinion and hold that the Java APIs are uncopyrightable under 17 U.S.C. § 102(b).”
Oracle has requested a 30-day extension on filing its reply brief, making it due on August 2. Oral argument will follow, probably in late 2017 or early 2018. The panel’s questions may reveal whether any of the arguments raised by Google’s amici have gained traction.