by Dennis Crouch
Google, LLC v. Oracle America (Supreme Court 2019)
This new petition from Google asks important questions about the role of copyright in protecting software. Questions presented:
- Whether copyright protection extends to a software interface.
- Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
Rather than licensing Java, Google rewrote the programming language for Android App development in a way that mimics Java. No problem there so long as done without copying. However, rather than renaming all the function calls, Google decided to copy the names of all the function calls. I previously explained:
As an example, Google used the Java method header “Math.max(a,b).” . . . In Android’s API, Google copied a set of 37 different Java “packages” (such as Math) that each contain many classes and method calls (such as “max()”). Overall, Google copied the header structure for more than six-thousand methods.
Google’s reason for copying the naming structure was a form of free-riding. There were already many thousand Java programmers and Google was looking for a way to get them to develop Apps for Android. In its shortest form, Google explains the case as follows:
As is relevant here, software interfaces are lines of computer code that allow developers to operate prewritten libraries of code used to perform particular tasks. Since the earliest days of software development, developers have used interfaces to access essential tools for building new computer programs. Contravening that longstanding practice, the Federal Circuit in this case held both that a software interface is copyrightable and that petitioner’s use of a software interface in a new computer program cannot constitute fair use as a matter of law.
Petition at I.
Read the petition: Google_v_Oracle_Petition-for-Certiorari_01-24-2019; Read the Wikipedia Page.
After reading the Federal Circuit decision, I wrote that the case is “likely heading to the Supreme Court.” Although I believe that the case has a very good shot – one difficulty is that it involves a decision by the Federal Circuit applying Ninth Circuit law — it effectively holds no weight and can be simply rejected by the next Ninth Circuit panel addressing the same issues.
No Cert. The decision was a straightforward application of well-established precedent. Read the CAFC decision and see if you can come up with solid error. Logic is against Google in this case.
Are you aware of another Court of Appeals decision, anywhere, anytime, that reversed a jury verdict finding fair use? And especially where the reversal was **not** based upon erroneous jury instructions, but rather just the appeals court disagreeing with the jury’s view of the evidence supporting fair use? If you have such a case, please let me know, it would be interesting. If no previous appeals court has ever reversed a jury verdict of fair use (as I suspect), do you still contend the CAFC decision is based on “well-established precedent”?
I would hazard a fair guess that jury verdicts are routinely overturned purely on an appeals court’s view of the legal issues notwithstanding any basis of the jury decision.
In fact there is a rule for this: Rule 59
That might be true as a general proposition, but my question stands: Has any appeals court ever overturned a jury verdict **finding fair use** and ordering that no fair use exists??
Yes, your question does remain.
No, I am not going to do the research to answer your specific question.
But based on the tools at hand, I can make an informed and educated guess.
Is there a reason that you believe such cases that you ask about would not be found?
My understanding is that this is the first appellate case in US history that has overturned a jury verdict of fair use and held that there is no fair use despite what the jury said. If I’m wrong, prove it. If you can’t cite another case where this happened, I’ll assume I’m correct.
You ask me to prove the singular when I already told you that I was not going to do that, but instead I point you to well known (in fact made into a rule) mechanism for doing exactly as you ask?
Maybe you should do more on your end as to why you think that your understanding is SO singular…?
You are already wrong at the general level. If YOU want to “assume you are correct” DESPITE that general level, then the onus (rightfully) is more on you than I.
As it is, I do not dabble much in the weeds of copyright cases, and I am more than content with having shared with you a Rule that tends against what you want to assume.
OK, let’s run down a few things:
1. I’m not the only person who thinks there has never before been an appeals court that overturned a jury verdict of fair use like this one did. Prof. Michael Risch, a frequent guest contributor to this blog, agrees with me:
link to writtendescription.blogspot.com
I have talked to other copyright practitioners about this case, and no one has ever heard of an appeals court overturning a jury fair use verdict like this. So I’m not “singular.”
2. You say that you don’t “dabble much in the weeds of copyright cases.” Well, I do, and I’ve never heard of an appeals court doing this. I was one of Borland’s counsel in Lotus v. Borland, you can look it up:
link to scholar.google.com
3. This thread started when commentator HierarchyOfPontificationBuckets said there was “well-established precedent” to an appeals court overturning a jury verdict of fair use. I called out that commentator on it. He didn’t respond, but you did: you said this was routine.
4. All you cited was a Rule, which isn’t “well-established precedent.” It’s just a rule. **Cases** are “precedent.” If you are correct about this rule, then there would be dozens or hundreds of cases applying your “rule” and saying what you say and proving me wrong. Go find one! Just one! If no case has ever **applied* your rule, then there is no precedent for what the CAFC did here — which takes us back to how this thread started.
Thanks Michael!
Thanks as well for the cogent reply Michael.
1. Point taken (as far as single digits go). Also, Risch is one of the few academics actually on the ball comcerning patents, so points there too.
2. Point taken as well, and thanks for the case. I will have to check it out to see if your experience there was affirming or losing.
3. and 4. Ah here, you start getting muddled. There is a difference between precedence and rule, and I spoke to the rule.
A rule being followed by the courts will NOT (or should not) be a cause for making a case precedential. A case saying that we are NOT following a rule SHOULD make the case precedential.
You have not distinguished the rule I provided or even attempted to show that the rule is not what I provide it for.
All you did was ask me to prove with details what the rule in general provides. I politely declined that invitation. Twice. I decline it now for a third time (seeing as the rule remains in place and you have not touched the rule).
Perhaps more respect for the Rule of Law — or a more balanced view of the phrase “that action was unprecedented” is in order. Following a rule is not — cannot be — an unprecedented act (in the legal sense).
In a sense of common vernacular, following a rule for a first time, or following a rule for which the rule is invoked only on rare occasions may SEEM like an unprecedented action, but the legal “precedent” meaning is NOT in play for those occasions.
2. was affirming and a refresh read (it’s been awhile) was a welcome outcome. I note (again, and not just for your benefit) that software carries different aspects that warrant different protections, and that the case presented clearly and unmistakably recognizes that the utility aspect of software deserves patent eligibility.
I would add though that that case does not hinge on Fair Use and is largely inopposite to the current discussion.
See Kelly v. Arriba Soft Corp. See Campbell v. Acuff-Rose Music, Inc. (District Court summary judgment allowing fair use overruled by Court of Appeals despite assuming all facts in favor of non-fair-use (later reversed by S.Ct.)), and many others.
Replying to both of your comments of January 30:
1. In both Kelly v. Arriba Soft and Campbell v. Acuff-Rose, the appeals court/Supreme Court found there **was** fair use. That’s not what happened in Oracle v. Google — the jury found there **was** fair use, the CAFC said there was **not** fair use. Do you have any case to cite that’s actually like Oracle v. Google?
2. For just a brief discussion of some of the errors in the CAFC opinion, you can read one of the amicus briefs I filed in the case. For starters, the CAFC refused to follow either the Supreme Court or the Ninth Circuit.
link to eff.org
Major LOSS of points for being associated with EFF.
1. I’m going to ignore your ad hominem attack on EFF. You’re posting anonymously, shielding yourself from such things.
2. On fair use, please go back to Lotus v. Borland and read Judge Boudin’s concurring opinion.
3. On Rule 59, I looked it up:
link to law.cornell.edu
This gives the power of a **trial** court to grant a new trial. Not to enter judgment in favor of the party who lost the trial, just a new trial. How does it have anything to do with an **appeals** court setting aside a jury verdict and ordering the opposite result? Not even ordering a new trial, but ordering the losing party to win?
Would you like to cite a different rule perhaps?
1. LOL – an attack on EFF has no bearing on the anonymity of me. Nice dust kicking there. It is well known that EFF acts counter to any reasonable view of the good of a patent system.
2. OK, I delved into the possible dicta in the concurrence. None of the dicta there changes the larger holding of the case. As to the dicta itself, is there something specific that you wish to hang your hat on? Perhaps to a (mistaken) notion that only one form of IP protection could possibly apply, and that one has to choose between patent protection and copyright protection? Or perhaps the “closest analogue” portion of the concurrence? Are you co-opting a “privileged use” to be part of some new “fair use?” – or are you negating any consideration of “privileged use.” The larger takeaway of the concurrence is NOT in line with your expressed views. Merely referencing the concurrence does not help you stake out a position, let alone a position on the merits of the rule provide (which is a nice segue to your point 3).
3. Rule 59 stems from actions after submission to a jury (other rules carry some of the same actions prior to that point). You raise a valid point that this is not calling out an action for an appellate court to apply in relation to a case below. Nonetheless, the action that you would deny (a jury being overturned) is plainly contemplated with this rule. Timing is the aspect for Rule 59 (as opposed to pre-jury timing contemplated in JMOL, for example.
The long and short is that any “umbrage” that you seem to want to bank on then is simply a mirage.
For actions directly or specifically pertaining to the transition to an appellate level, we could visit the appropriate appellate rules of civil procedure. Alas, I see nothing on point there. Critically, I see nothing that would dissuade the content (or intent) of Rule 59 from being applied BY the appellate court in its “new” review of the matter below.
Returning to the lower court Civ Pro rules, perhaps you feel that Rule 62.1 provides a mechanism in regards to transfer to the appellate court… (but that does not help your larger contention that somehow overriding a jury’s finding is some calamity or unprecedented — in the non-legal sense — action.
In other words, you STILL have not made a case for your position. And someone else not proving a contrapositive does NOT make your case.
All in all though, I do appreciate your much more cogent replies (than is typical on this forum– from others) in our dialogue.
Any jury decision can be overturned if an appellate court finds the evidence sufficiently wanting, per the “clearly erroneous” standard of Rule 52. In civil matters, there are limits on juries and they sometimes result in reversals. Although there probably aren’t any findings or even dicta on point, what constitutes “clear error” by a jury is flexible, for instance well-established areas of law might get more deference. The “fair use” issue may be presented as a matter of fact, but it’s a blend of law and fact with heavy policy implications, so findings on that issue tend to receive less deference and overturns are maybe less unusual.
In any case, the CAFC decision seems well-reasoned to me. Exactly what errors do you see in their decision?
A rare error in a cert petition. There’s a paragraph A.1 and A.3 but not A.2. Cert denied. JK. 😉
Seriously, though, a strong chance this one gets granted. Query does it stay with Williams and Connolly or does it go to Paul Weiss with Kannon?
I think they didn’t want to be accused of copying a heading structure.
I think IPdude has it right.
Nice.
IPdude’s post is nice, MM. Glad you noticed that.
Google steals from startups all the time. The difference is that startups don’t have the money to fight them like Oracle is here. Google does not innovate, they wait until others do and, to their credit, they do it better (partly because of the scale they have). Google is using their muscle to buy academics, Congress and the courts (Fed Circ appointments) to dilute the value of IP rights so that they can steal with impunity. They’ve really done a good job as pirates masquerading as innovators. Oh, but let’s get those patent trolls…nevermind these tech monopolies putting small business out of business.
Google does not innovate
If the typical “app” patent application (or “business model”, if you will) is an “innovation”, the Google does plenty of “innovation.”
Proclaiming otherwise just makes you look like a whiner.
“just makes you look like a whiner”
A great starts for you would be to drop your number one meme of Accuse Others.
I am trying to remember the last post you made that wasn’t of a whining nature…
Your non-patent law posts are whines.
Your “patent law”** posts are whines.
** I am being ultra generous placing your typical mindless ad hominem in a “patent law” related category, even as substantively, your rants are not eligible for inclusion.
So if it is not innovation, why is it being copied?
It’s being for the same reason that the titles of recipes in a recipe book would be copied be someone telling a third party “make a great meal with the five recipes from this book: -, -, -, -, and -“.
“Being copied”, that is.
Your example fails as the indicators would violate more than merely the titles of the recipes (plus, you have not tracked the functional relationship that is very much different between your “recipe” example and computer code “titles.”
the indicators would violate more than merely the titles of the recipes
That makes no sense. English, please.
It makes perfect sense – just because your understanding is of a limited capability does not dictate that the meaning is not there.
Please tell everyone what “more” is “violated” by “the indicators”?
The “indicators” in my analogous situation, of course, “indicate” where to find the instructions for preparing the food. Bear in mind that those instructions, as well as use of the “the indicators”, could be followed by a robot.
So tell everyone: what “more” is “violated.”
I look forward to your very serious answer.
Your answer is snagged in the Count Filter.
Interoperability.
Thanks NS II- short and sweet.
But is “interoperability” anything more than merely presuming that any aspect of expression must necessarily be subsumed into the “functional” aspect?
If I recall correctly, something “being nice to have” does not drive the legal mechanism so far as you may indicate (a “nice to have” interoperability may not be enough).
Or to put it another way: like anybody else with more than half a brain who can write a complete sentence, I can sit here all day and “innovate” endless “new” inputs (e.g., data defined by content) for a programmable computer to “process” and endless “new” outputs for that computer to store/display/transmit in response to those inputs or in response to some processed version of those inputs. Doesn’t matter what the subject matter is. Eating food. Going to the bathroom. Watching TV. Petting the cat. Driving the car. Secksytime. Smoking a bong. Brewing coffee. Stripping the barnacles off my yacht. Figuring out whether that pimple is really a pimple. And everything in between. Logic applied to information. None of it belongs in the patent system. None of it.
Your feelings are as off as they are well known (since you exercise zero control over those feelings and C R P nonstop over every thread regardless of topic or of the points that others have provided for discussion.
Your ego is as out of control as your feelings.
Remind you of anyone?
Maybe you could do more than just your typical drive-by monologue of feelings rant.
Let’s start year 15 differently, eh?
IPdude: I think that is pretty accurate.
Good call IPdude.
Good call.
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