As Matt Schruers indicated in a DisCo post earlier this week, copyright holder representatives have filed amicus briefs in support of Oracle’s appeal of the fair use determination in the ongoing copyright infringement litigation between Oracle and Google. These briefs argued that the district court and the jury erred by applying fair use principles over-broadly. Nonetheless, several of the briefs correctly acknowledged the importance of the fair use right to free expression, creativity, and the proper operation of the copyright system.
The high profile IP dispute over Google’s reimplementation of the Oracle-owned Java API in Android software is headed back to a federal appeals court after a jury handed a unanimous loss to Oracle last summer. So what’s the issue this time?
Our Story Until Now
A quick refresher: the case began following Oracle’s 2010 acquisition of Sun, which held the copyrights to Java. Oracle sued Google on various IP claims later that year. The basis for the suit was that in developing Android, Google had created its own version of the programming language called Java, a toolset that programmers use to write code. In order to enable other developers to program on Android, Google employed the same names, organization, and functionality in Android as is used in the Java API (“application programming interface”) — the protocols by which software programs communicate.
In June 2012, following a jury trial, Judge William Alsup in the Northern District of California ruled that the Java API “packages” copied by Google were not copyrightable. According to Alsup’s holding, Android may have “replicated the overall name organization and functionality of 37 [out of 166] packages in the Java API.” However, these protocols — themselves only 3% of the 37 packages — did not qualify as copyrightable since to extend that protection would provide control over “all possible implementations of the taxonomy-like command structure” used by programmers to write code. (Fun fact: Judge Alsup taught himself Java for purposes of hearing the case.). MORE »
Many observers, including me, predicted that the 2014 decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) in Oracle America v. Google would provoke a new wave of litigation concerning copyright and interoperability. In particular, we worried that the decision would encourage dominant vendors to bring copyright claims against competitors that replicated interface specifications for the purpose of interoperating with the dominant vendors’ products. We were right.
Sure enough, Oracle America has factored into at least four cases so far. One of these cases settled, one is on appeal, and the other two likely will be appealed in the near future. The latter two cases also involve patent claims, so appeals will be heard by the CAFC. (The CAFC has nearly exclusive appellate jurisdiction over cases with patent claims.) One can assume that the plaintiffs added the patent claims to ensure CAFC jurisdiction.
GDC v. Dolby Laboratories
This is the case that settled. Dolby Laboratories provides advanced motion picture theatre sound systems. GDC Technology develops software and hardware that interoperates with the Dolby systems. Dolby facilitated this interoperability by making its interface specifications available to GDC. It appears that Dolby stopped providing this information after it acquired Doremi, a media server manufacturer. Evidently, this acquisition made GDC a more direct competitor. Emboldened by the CAFC’s Oracle America decision, Dolby demanded that GDC stop using Dolby interface specifications to interoperate with Dolby products. Furthermore, Dolby insisted that GDC cease telling customers that GDC had the right to use this interfaces information to interoperate with Dolby products.MORE »
I have completed the third volume of a history of the global legal debate concerning copyright and competition in the software industry. The debate has centered on two related issues. First, does copyright protect the elements of computer programs necessary to achieve interoperability? Second, to the extent that those elements are unprotectable, can copyright law nevertheless prevent the copying incidental to uncovering those unprotectable elements?
The first volume, written with Masanobu Katoh, was published by Westview Press in 1995. You can download a copy of Interfaces on Trial: Intellectual Property and Interoperability on the Global Software Industry for free here.
The second volume, also written with Masanobu Katoh, was published by MIT Press in 2011. It covers the developments in this field between 1995 and 2010. You can download a copy of Interfaces on Trial 2.0 for free from: http://mitpress.mit.edu/band.
The third volume, Interfaces on Trial 3.0: Oracle America v. Google and Beyond, picks off where the Interfaces on Trial 2.0 left off, focusing in particular on the Oracle America v. Google litigation concerning Google’s copying of certain elements of the Java Application Program Interface (API). This litigation, initiated by Oracle in 2010, is still ongoing. However, there now is a break in the action as Oracle appeals the 2016 fair use jury verdict to the U.S. Court of Appeals for the Federal Circuit (CAFC). Because the CAFC may not issue a ruling until 2018, it made sense to me to release this volume now, and update it as the case progresses. You can download a copy here. Much of the volume’s description of the case’s twists and turns is based on blog posts I’ve written for the Disruptive Competition Project (most recently here).
After discussing Oracle America v. Google, Interfaces on Trial 3.0 reviews other U.S. judicial decisions touching on interoperability, mainly relating to section 1201 of the DMCA. The volume then examines the interoperability-related exemptions granted (and rejected) by the Librarian of Congress in the section 1201 rulemaking. Finally, the volume looks at international developments, most notably the Court of Justice of the European Union’s 2012 decision in SAS Institute v. World Programming.
Although I attempt to present these contentious issues in a balanced manner, the reader should be forewarned that I am hardly an objective observer in this debate. Rather, I have devoted significant time and energy over almost 30 years to advocating the views of interoperable developers. I believe that the triumph of interoperability will benefit both the information-technology industry and computer users around the world.
Yesterday, the district court in the Oracle America v. Google copyright litigation over the Android application program interfaces (APIs) denied Oracle’s motion for a new trial and renewed motion for judgment as a matter of law. The jury’s decision that fair use permitted Google’s copying of elements of the Java API in the Android API thus is ripe for review in the U.S. Court of Appeals for the Federal Circuit (CAFC).
The district court denied Oracle’s renewed motion for judgment as a matter of law in one sentence, “for the same reasons as its old one.” The court’s denial of Oracle’s earlier motion for judgment a matter of law is discussed here.
With respect to the motion for a new trial, the district court first responded to Oracle’s contention that it had abused its discretion by limiting the fair use trial to “Android as used in smartphones and tablets, postponing all other uses to later trials.” The court observed that the original trial in 2010 covered Android versions used in smartphones and tablets, and that these versions were within the scope of the appeal and the remand. Once it was back before the district court, Oracle had sought to broaden the case to include later versions of Android used on other devices, including laptops and desktops. Google, however, disputed whether the earlier finding of infringement applied to these later versions of Android. Thus, including them in the second trial would require Oracle proving that these versions, too, infringed its copyright in Java.
Further, the court found that the fair use analysis with respect to the laptop and desktop versions was distinct from that concerning the smartphone and tablet versions. Oracle argued that because the fourth fair use factor considered whether widespread conduct of the sort engaged in by the defendant would have an adverse impact on the market for the original, the potential harm to the laptop and desktop markets was relevant to the fair use determination. The court responded that
the concern with widespread use, however, is not whether uses distinct from the accused uses—each of which must be subject to distinct transformativeness analyses—might harm the market for the copyrighted works. Rather, the concern is whether a use of the same sort, if multiplied via use by others, would cause market harm, even though the actual use by the infringer caused only minimal harm.
As predicted here two weeks ago when the jury found that Google’s use of Java declaring code in the Android operating system was a fair use, the presiding judge has rejected Oracle’s motion for a judgment as a matter of law. Oracle argued that no reasonable jury could find against it, but the judge ruled that based on the law of fair use and the trial record, a jury reasonably could have found for either side on the fair use issue. Because the district court’s 20 page order applying fair use jurisprudence to the facts of this case likely will be the focus of Oracle’s inevitable appeal, it is worth examining in some detail.
Before diving into a discussion of the four statutory fair use factors, the district court explained that the jury reasonably could have found that Google’s copying of the declaring code of 37 of the 166 packages of the Java Application Program Interface (API) was justified by the objective of “inter-system consistency.” The Java API contains a library of thousands of pre-written Java source code programs for common functions. Each program is called a method. Each method contains a line of declaring code that specifies the method’s name and defines acceptable inputs and output. The method then contains implementing code that carries out the function. The methods are organized into a hierarchy of classes and packages, referred to as the API’s structure sequence and organization (SSO). Oracle conceded that copyright did not protect the Java language. However, Oracle claimed, and the Federal Circuit found, that copyright protected the declaring code and the SSO. The question before the jury was whether fair use allowed Google to copy the declaring code and the SSO.
The jury in the ongoing copyright infringement litigation between Oracle and Google returned a verdict today in favor of Google. This welcome verdict renders moot my earlier post about Google’s equitable estoppel defense, which would have come into play had the jury ruled against Google.
Because the decision was rendered by a jury, rather than a judge, there is no opinion—just a one word answer to a one word question on a special verdict form. The question is: “Has Google shown by a preponderance of the evidence that its use in Android of the declaring lines of code and their structure, sequence, and organization from Java 2 Standard Edition Version 1.4 and Java 2 Standard Edition Version 5.0 constitutes a ‘fair use’ under the Copyright Act.” The jury then had to answer unanimously “yes” for Google or “no” for Oracle. The ten jurors answered unanimously “yes” for Google.
When DisCo last covered the Oracle v. Google copyright infringement case, it was in the aftermath of the Federal Circuit’s ill-considered conclusion that software methods received copyright protection. I specifically criticized the Solicitor General’s decision to wave the Supreme Court off the case, advice that the Court followed. Now the case has been sent back to the district court, which is considering Google’s fair use defense. That trial began last week, and will continue this week in a San Francisco courtroom.
Some of the articles covering the ongoing fair use trial in Oracle’s copyright infringement suit against Google wonder how a jury of ordinary citizens will be able to understand the complexities of the software technology at issue, the nuances of custom and practice in the software industry, and the subtleties of copyright’s fair use doctrine. It turns out that even if the jury completely botches the fair use issue (i.e., finds that Google’s use was not fair), the ultimate decision of liability still rests in the hands of the presiding judge, William Alsup.
This morning the Supreme Court issued an order indicating that it was declining to hear an appeal of the copyright case between Oracle and Google. The appeal concerned the copyrightability of “application programming interfaces” (APIs). Oracle launched the suit against Google shortly after acquiring Sun, which held copyrights and patents on the Java computer language, in 2010. It claimed that Android infringed Java copyrights because Android replicated elements of the Java API in the Android API. (Oracle’s suit also advanced patent claims, which came up remarkably short.)
The trial court sided with Google, but the U.S. Court of Appeals for the Federal Circuit disagreed, in a May 2014 ruling discussed previously here, here, and here. Google appealed to the Supreme Court, arguing that the appellate court had incorrectly held that the system and methods of the Java API could be protected under U.S. copyright law. The U.S. Copyright Act withholds protection from any idea, procedure, process, system, or method of operation. Processes, systems, and methods are usually the domain of patent law, not copyright; courts have long noted the lack of copyright protection for interface specifications encourages interoperability across software environments.
Last week, the Solicitor General of the United States filed a very peculiar brief advising the Supreme Court not to hear Google’s appeal from the Federal Circuit’s decision last year that the Android application program interface (API) infringed Oracle’s copyright in the Java API. We previously discussed the Federal Circuit’s May 2014 decision here, here, here, and here; and the significance of the Court’s call for the views of the Solicitor General here.
The SG’s brief is peculiar in several ways. First, it reflects a profound misunderstanding of the Copyright Act subsection that codifies copyright’s “idea-expression dichotomy” by prohibiting protection for ideas, systems, and methods: 17 U.S.C. § 102(b). Second, it completely ignores the obvious “circuit split” between the federal courts of appeal, which has been exacerbated by the Federal Circuit’s decision. Third, it mistakenly concludes that Google’s “substantial and important” concerns about the impact of the Federal Circuit’s decision on “interoperability and lock-in effects” are better addressed through the fair use doctrine than the idea/expression dichotomy.