Internet Companies File Latest Brief in Support of Google in Fight with Oracle at Supreme Court

By Eileen McDermott
February 27, 2019

Mozilla’s brief warns that allowing the Federal Circuit ruling to stand could especially harm small and individual coders, startups and nonprofits.

https://depositphotos.com/236462792/stock-photo-cropped-view-psychic-laptop-google.htmlMozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia have filed an amicus brief in support of Google in its case against Oracle at the U.S Supreme Court.

The platforms disagree with the Federal Circuit’s March 27, 2018, ruling that Google’s use of Oracle’s Java application programming interface (API packages) was not fair as a matter of law, reversing the district court’s decision on the matter. The brief is the latest of 14 that have been filed in the last week in support of SCOTUS granting the petition.

Mozilla et. al. argue that software development depends on the ability to reuse and reimplement functional protocols like APIs in order to “create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement.” The brief cites an 1879 Supreme Court case, Baker v. Selden (101 U.S. 99), and the language of 17 U.S.C. § 102(b) (2012) to support its argument.

Section 102(b) says:

102. Subject matter of copyright: In general

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

In Baker v. Selden, the Supreme Court first articulated what has come to be known as the “merger doctrine” when it held that a novel bookkeeping system comprised of columns and headings from forms in an author’s book were not copyrightable and thus not infringed by a similar bookkeeping system.

Mozilla’s brief further warns that allowing the Federal Circuit ruling to stand could especially harm small and individual coders, startups and nonprofits, “who often lack legal counsel or large financial reserves to defend themselves against unwarranted litigation.”

The brief focuses chiefly on two points. First, that expanding copyright protection to include APIs will “stifle innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before.” Second, “the Federal Circuit’s rejection of the fair use doctrine stands to undermine not only reimplementation and reuse of APIs, but also other valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements.”

Another brief filed on February 25 by 65 Intellectual Property Scholars also points to Baker v. Selden and other decisions by the First, Second, Fifth, Sixth, Tenth and Eleventh Circuits in conflict with various elements of the Federal Circuit’s latest ruling as evidence of deep circuit disagreement on the matter warranting review.

In a blog post announcing the brief, Mozilla analogized the Java platform and its APIs to toasters and toaster slot dimensions:

Let’s say a manufacturer produces a toaster and publishes the dimensions of the slots so bakers know exactly what size loaf will fit. Bakers can sell bread knowing it will fit in everyone’s toasters; manufacturers can make new toasters knowing they will fit people’s bread; and everyone can make toast regardless of which bakery they frequent.

Should other toaster manufacturers be prohibited from using those square dimensions for their own toasters? Of course not.

Google filed its petition with the Supreme Court on January 24. The questions presented are:

  1. Whether copyright protection extends to a software interface.
  2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

In response, Oracle dismissed Google’s latest petition in the nine-year battle as “a rehash of arguments that have already been thoughtfully and thoroughly discredited” and said that Google’s “fabricated concern about innovation hides Google’s true concern: that it be allowed the unfettered ability to copy the original and valuable work of others as a matter of its own convenience and for substantial financial gain.”

Image Source: Deposit Photos
Photography ID: 236462792
Copyright: AndrewLozovyi 

The Author

Eileen McDermott

Eileen McDermott is the Editor-in-Chief of IPWatchdog.com. Eileen is a veteran IP and legal journalist, and no stranger to the intellectual property world, having held editorial and managerial positions at several publications and industry organizations. She has acted as editorial consultant for the International Trademark Association (INTA), chiefly overseeing the editorial process for the Association’s twice-monthly newsletter, the INTA Bulletin. Eileen has also served as a freelance editor for the World Intellectual Property Organization (WIPO); as senior consulting editor for the Intellectual Property Owners Association (IPO) from 2015 to 2017; as Managing Editor and Editor-in-Chief at INTA from 2013 to 2016; and was Americas Editor for Managing Intellectual Property magazine from 2007 to 2013.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 7 Comments comments.

  1. Pro Say February 27, 2019 9:33 pm

    ” … will “stifle innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before.””

    Sounds just like the on-going widespread misuse and misapplication of s101; which Google and their hypocritical, infringing, billion-of-dollars/yr kin are only too happy to tightly embrace and support.

    So now Google and their brethren care about the small guys and gals?

    Sure they do.

    Sure. They. Do.

  2. The Time Is Now To Act February 27, 2019 10:17 pm

    Bottom line – there should be a much higher bar for who gets to submit Amicus briefs in these cases. It has become a swamp unto itself. Yeck

  3. Night Writer February 28, 2019 9:47 am

    Mozilla’s analogy with a toaster is ridiculous. I think the closest analogy is with trade dress. Trade dress “infringement” is allowed because it enables the buyer to quickly find alternatives and so for public policy it increases competition.

    Mozilla is so FOS that they hurt the entire case. But they are right in that allowing an API to be copied does enable alternatives to be used and competing products to be developed easily. I’d note that it is not that hard to have code switch between the use of two different API’s that are functionally the same but use different names and orders of parameters.

    I think the real danger here is that what is happening is the courts are trying to increase copyright and trade secret law at the same time they weaken patent law.

  4. Jacek February 28, 2019 1:00 pm

    It fits overall Google strategy to weaken patent system.
    Google’s “fabricated concern about innovation hides Google’s true concern: that it be allowed the unfettered ability to copy the original and valuable work of others as a matter of its own convenience and for substantial financial gain.”

  5. Pro Say February 28, 2019 1:28 pm

    NW: “I think the real danger here is that what is happening is the courts are trying to increase copyright and trade secret law at the same time they weaken patent law.”

    Bingo!

  6. Eric Berend February 28, 2019 6:03 pm

    So: here, SiliCON Valley rallies to “defend” the non-existent “right’ of so-called “fair use”, citing to a 19th Century USPTO decision.

    Are these very same entities not, the very same that argued vociferously against all of U.S. jurisprudence of the 19th Century – when it comes to patent law?

    Article 8, Section 1, Clause 8 specifically describes the “authors” and the “inventors” in peerage. Now, some 230 years later, the copyright has been exaggerated (extended) to 75 years after an author’s death; while U.S. patents are worse than ‘dead’ for SME’s and individual inventors.

    Worse than dead, because U.S. patents swindle the inventor into the commitment of precious inventing resources, only to fraudulently betray the inventor’s interest with the manifest complicity of the entire U.S. government and most of the patent industrial establishment.

    The stench of obdurate hypocrisy clings to these SiliCON Valley “Gleefully Be Evil!” denizens. 1000 years from now, there will be humans who remember how evil this exploit was (and is, contemporaneously speaking).

    Does the reader of these words react with disbelief? Examine the degree of unconsciousness in the increasing pace of technological adoption and its effects on multiple levels of the human experience – both individually and societally. We as a species, are at an inflection point, without a doubt, in our humanity and our humanity’s relationship with technology.

    Would anyone whose eyes meet these words, seriously presume that petroleum has not been elevated to a point where every aspect of the modern economies of the world is involved and often dependent upon its supply? When the advance of communications technologies suffuses the overall society in the rapid influence of so-called “social media”, with the same unconsciousness with which we all flick on a light switch: then, can it not be observed, that this proposition of such an endeavor to establish a millennia-long technoristocratic hegemony, is undoubtedly true?

    They’ve colluded with the NSA and other ‘black government’ spy agencies to snoop on the American people and individuals, in a blatant flouting violation of the Constitution and the laws made on said basis, purporting to uphold the ‘public interest’ in the name of “national security”. This is the very same industry that acts as if “it’s nothing, no big deal” when 170,000,000 Americans have their sensitive financial information ripped off to criminals for the very lack of security fraudulently misrepresented to their investors and the American people, time and time again.

    Then, we’re all supposed to trust these Keystone Cops now infamous for the “Don’t Be Evil” blatant Big Lie: a tactic used to great effect by dictators through history such as Mussolini, Hitler, Stalin and Maduro. This – THIS – is supposed to be our “Best and Brightest”?! Nay: rather, a smorgsabord of treacherous free-for-all, raised on the exploited backs of the inventors and non-entrepreneurial software programmers (“coders”). A cabal of treacherous snoops ploying a surveillance-capitalist model, creeping around people’s lives to exploit them for unjust enrichment, in any and all possible ways.

    The ‘coders’ end of “talent” to be exploited by these technoristocrats, by the way, has been addressed in articles here at IPWatchdog.com, with the chilling effects of non-competition agreements necessitated by a trade-secrets regime destroying the competitive value of skilled labor

    BigTech apparently strives to force its own 1000 year aristocracy upon everyone else in the world today. In Europe, it took that long to move beyond the old feudal system of property ownership and operation. There can be little doubt, given the same or similar basis of being based originally upon forms of title to land ownership, that this analysis is quite valid.

  7. Eric Berend February 28, 2019 6:40 pm

    ^ ^ ^ Please note errata: ^ ^ ^
    where the above comment states “USPTO” at line 2, the correct term instead, is “SCOTUS”.