Guest post by Professor Pamela Samuelson, Berkeley Law School
In the past week 28 amicus curiae briefs were filed in the Google v. Oracle case, including one written by me and Catherine Crump (of which more below). All but two support reversal of one or both of the Federal Circuit’s copyrightability and fair use rulings.[1]
Especially significant are IBM’s brief with Red Hat arguing against the copyrightability of computer interfaces and Microsoft’s brief criticizing the Federal Circuit’s unduly rigid fair use analysis and indifference to the need for flexible rules that promote interoperability in today’s highly connected world. The briefs are substantively excellent, and significant because these firms are such prominent developers of software.
For those interested in the case who are not computing professionals, I recommend the amicus briefs submitted by 83 computer scientists and by the Developers Alliance which explain the Java API technology and why reuse of Java declarations and interfaces generally is so important to enabling compatibility. Several other briefs, including one for the Center for Democracy and Technology et al., and another for R Street and Public Knowledge, offer numerous examples of compatible software systems that benefit consumers as well as software developers
By my count, more than half of the 28 amicus briefs focus only on the copyrightability issue and another 9 address both the copyrightability and fair use issues. Only 4—the Microsoft, Tushnet, Snow, and Rauschenberg Foundation briefs–address only fair use. This was a something of a surprise given that the fair use decision seems quite vulnerable to challenge. After all, a jury rendered a verdict in favor of Google’s fair use defense, and appellate courts are supposed to defer to jury verdicts. Several amicus briefs take the Federal Circuit to task for substituting its judgment on the merits for the jury’s as to issues about which there was conflicting evidence in the record. Also much criticized are the Federal Circuit’s analysis of the four fair use factors and the manner in which it weighed the factors together.
One very pragmatic reason why some amici would prefer that the Court rule on the copyrightability issue over the fair use issue is that fair use is a fact-intensive, complex, and much debated limitation on copyright. Google may be able to litigate software interface copyright cases for a decade or more, as it has done in this case, but startups and other small and medium-size companies as well as open source developers would prefer the certainty of a no-copyright-in-interfaces rule, as several amicus briefs pointed out. If the Court rules that interfaces are not protectable by copyright law, litigation over reuses of interfaces is much less likely. And if some developer does bring suit, chances are good that the case can be won on a motion to dismiss or for summary judgment
Software developer and industry association amici point to a longstanding consensus on the distinction between interfaces and implementations: interfaces should be free for reuse as long as developers reimplement the interfaces in independently created code. The Federal Circuit’s Oracle decisions have upset settled expectations in the industry, and if the Court upholds them, it would have, as Microsoft asserts, “potentially disastrous consequences for innovation.”
The American Antitrust Institute was among the amici that emphasized the potential for copyright in program interfaces to have anti-competitive effects by entrenching dominant firms and creating barriers for new entrants in the software business. This is particularly of concern in view of network effects which, even without interface copyright monopolies, make it difficult for users and developers to switch to new systems.
The Computer & Communications Industry Association and the Internet Association amicus brief provides a historical review of the evolution of software copyright caselaw. Although a few early decisions construed copyright as providing broad protection to program structures such as interfaces, landmark decisions by the Second and Ninth Circuits recognized that interfaces which constitute the functional requirements for achieving compatibility among programs should not be protectable by copyright law. Other courts followed these rulings. The Oracle decision deviates from this body of caselaw. Some amici regard interfaces as patent, not copyright, subject matter.
The amicus brief Catherine Crump and I co-authored and submitted on behalf of 72 intellectual property scholars positioned the pro-compatibility decisions within the framework of the Supreme Court’s 19th-century rulings in Perris v. Hexamer and Baker v. Selden, which originated the exclusion of methods and systems and their constituent elements from the scope of copyright; dozens of decisions applying these exclusions; their codification in 17 U.S.C. § 102(b); and caselaw applying these exclusions to software interfaces that enable compatibility. Our brief also explains why the District Court’s alternative ruling in favor of Google’s merger defense was consistent with Baker and its progeny and that merger provides a sound basis for finding that program interfaces that enable compatibility, such as the Java SE declarations, are unprotectable by copyright law.
Oracle will obviously have a different take on these issues when it files its brief due February 12. Amici in support of its position must submit their briefs within the following week.
Google will have an opportunity to file a reply brief in mid-March. Oral argument before the Court may be scheduled in late March.
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[1] Although the American Intellectual Property Law Association is one of the briefs in support of neither party, the substance of its arguments on both the copyrightability and fair use arguments are quite close to the positions of Google and pro-interoperability amici. The other “neutral” amici were the Robert Rauschenberg and Andy Warhol Foundations which expressed concern about a possible interpretation of fair use that would undermine artistic freedom to engage in creative reuses by artists.
>Software developer and industry association amici point to a longstanding consensus on the distinction between interfaces and implementations:
Factually, I’m not sure that’s correct….for example, the open source world is filled with GPL/LGPL licensed header files e.g., link to svn.r-project.org
That is, if there is ‘consensus’ that headers are non-copyrightable, then what exactly are they licensing?
It is also telling of large corporate advocate Samuelson (you can see it in her eyes that she is not clean) that she advocated for moving all “software” (note doesn’t even get that equivalence of software/hardware/firmware) from patents to copyrights. And now she is moving to eliminate copyright protection from “software”. See a pattern?
link to redstate.com
The above story points out the irony of the Google position to lock down android while demanding a free ride on java.
Hilarious.
And of course, something that Malcolm would respond to as something “frothy from Big Gene” or the like, while NOT noticing all of the items that are actually on point in the article.
Big Tech is more than just a little Orwellian.
This is a pretty unfair oversimplification. Samuelson is not advocating to “eliminate copyright protection from software,” but rather, keep software copyright protection roughly at the level of source code or object code. That was pretty much the state of the law since at least the 1990s, when several circuit courts independently refused to allow copyright lawsuits based on use of APIs, where the underlying code was different. The circuit courts found different ways to get there; some used fair use, some used the idea-expression dichotomy or scenes a faire, others used the “abstraction-filtration” test, to get to that result. So many decisions, so many law review articles, and the undercurrent behind all of it was concern over interoperability.
By limiting copyright protection to roughly the level of source code or object code, it basically allows copyright law to protect software piracy and theft, but leaves high-level concepts (such as APIs) to the purview of other forms of IP protection. And this is entirely consistent with how copyright protection is dealt with in other types of media such as movies, songs, books, etc.–protect the actual expression of an idea but not the idea itself.
Except reality Lode_Runner. Large Corporate Advocate Samuelson wrote a paper about 20 years arguing that patents for “software” should be eliminated in favor of copyright and the argument was that the functional relationship among the modules should be copyrightable.
“Except reality?” I assume you mean “accept” reality.
People are obviously entitled to change their views from what they may have thought 20 years ago, but I am not sure the Sanuelson paper you identify actually exists. Can you provide a citation or just a title to the paper you’re talking about? (If not, then perhaps “except reality” was an accurate description of your criticism of Samuelson.)
I am familiar with Samuelson’s work (as I’ve followed this area for more than 25 years), and her work has been pretty consistent in its skepticism of the copyright protection of software, including protection for the functional or behavioral aspects of software.
So you ignore that she doesn’t understand the equivalence of software, hardware, and firmware, and that she has steadily tried to remove IP protection for information processing.
And you ignore the automated tools on the market for copying software.
So except reality is a good characterization of your post.
Thanks for the non-response, Night Writer. Still waiting for your identification of the article from Samuelson where, according to you, she allegedly argued that “the functional relationship among the modules should be copyrightable.” Did you just make that up?
I am not going to play the game of going and doing work for you when you ignore large substantive portions of my post.
Not to take LR’s side (especially as he plots a ‘non-response’ jibe which could be well placed at his own feet), he DOES provide at least a decent counter point.
I have long been (very) wary of Samuelson’s anti-innovation-protection vires, so (perhaps for a very different reason) I am interested in any such article from Samuelson in regards to the patent OR copyright as fitting protection (for anything).
If she ever did show some preference for protecting innovation, I would be shocked. It’s a fair point then to ask about such a reference that you might be aware of (and might be able to at least indicate so that I could learn more).
… “plots” => “ploys”
Nabbed by autocorrect
anon, I don’t play the “I’ll ignore everything you said, but find something for you to go do game.” This is a standard game of trolls.
No prob, NW.
If you do find it though, I would be interested.
Plus, your arguments don’t take into account reality again.
There are many tools out there that will take source code and rearrange it so that the functionality will not be affected but that it is no longer a direct copy.
Why do people like you blab out nonsense?
Remember the judicial debates many years ago about software “look and feel” copyright infringement? It did not last long.
What is your point, Paul?
Can I create a completely made up language, for example, Klingon, and copyright my new words as expressions and copyrightable work? Isn’t that answer yes?
You cannot copyright human language, period. But you can copyright specific expression or use of that language, or a specific explanation of that language, and so forth.
For example, J.R.R. Tolkien invented a number of dialects of Elvish for the “Lord of the Rings” series and other related books. His made-up languages themselves cannot be copyrighted, but the specific dialog and songs he wrote for his books, using those dialects, can be protected. Conversely, this means that someone else would be free to come along later and use Tolken’s made-up dialects to write new and different material.
Where’s MM when it came out that Bernie is a saxist to Warren?
He’s checking his privilege first and then will comment. #resist
Nice, stay strong sister comrade. #resist
Expression is consumed by human beings and has abstract, but not functional human meaning, because human beings can operate without the consumption.
Program interfaces are consumed by machines and are non-abstract machine parts, without which the machine cannot function. Patents cover function, Copyright covers expression.
Software is sometimes purely functional, and sometimes explicitly a means of expression.
See a pattern here?
When is software “explicitly” a means of expression?
And do you realize an item may have different aspects, of which different aspects deserve protection under the different innovation protection realms of BOTH patent and copyright?
See my “Big Picture” post below.
So Martin, a light that indicates I should brake in my car is an “expression [] consumed by a human beings and has abstract, but not functional human meaning?”
I think it has very clear functional human meaning. The game actually that the like of R. Stern play is to use examples of claims that patterns may help a person calm down, for example, and why these functional patterns should not be eligible for patentability.
Night, if the braking light were a new, useful, non-obvious machine, composition, or manufacture, no issues here. If the act of a person braking when seeing a red light on the dash (or hanging from a pole for that matter) was claimed as a process; big problem.
What is the big problem? A method of activating a red light to induce a driver to break when it is detected that a pedestrian is going to walk in front of the car.
And this could use information processing methods to determine whether the person is actually going to walk in front of the car which may be superior to a person’s ability to figure that out.
The problem is that a person hitting the brakes because a light illuminates, or being instructed (induced) to do so cannot be an infringing act in a free country.
Making and/or selling a machine or manufacture that causes a light to illuminate when an obstacle is detected should be infringing acts if the patent on the invention(s) involved are otherwise new, useful, and non-obvious. But as a method? No effing way.
Marty, do you think that ANY method claims (outside of any device/manufacture/machine that may be involved in the method) can/should be able to be enforced as an infringing act in a free country?
Please Pardon Potential rePeat (caught in count filter…?)
Marty, do you think that ANY method claim (outside of a consideration of any device/manufacture/machine that may be involved) is in itself enforceable as an infringing act in this free country?
And to add:
You seem to be saying that a human act based on some other steps of a method makes an entire method unenforceable.
Is this just a “final step” thing or does a human choosing to do something at any point of a method claim have this same effect?
What about a person adding a metal to other metals? Can that be an infringing act?
“_____” is “consumed” by human beings.
An interesting assertion by the same person who continues to ignore the fact that utility in the patent sense MUST be evaluated directly in relation to ‘consumption’ BY human beings.
There is NO utility in the patent sense outside of a bottom line of how does the innovation affect/interact/judged by (all offshoots of consumption) humans. ‘Promotions’ is of the people, by the people, for the people.
And yes, that parallel is purposeful.
The artificial distinction being pressed by Marty is just that: artificial.
Yes, because patent law is a part of the natural world, and not completely made up by human beings….i.e. artifical
You are making less sense than usual lately, and that says something.
MM may be on a long vacay, or he may finally have been flicked…
Lol – that you do not think I make sense is most definitely a “YOU” problem. Blaming others for your lack of understanding is a surefire way of NOT learning.
The use of the term ‘artificial’ is to be taken in context of patent law — something that you absolutely refuse to do. For you, the terrain of patent law is not even considered as you wish to wage war.
See Sun Tzu.
The link to the Public Knowledge brief gives me the wrong brief.
Here you go.
link to eff.org
Prof Samuelson again betrays her lack of understanding of how software works, let alone the law.
Remember what this case is about. Sun created Java to be “write once, run anywhere.” The point is not just “compatibility,” the goal is much higher, “interoperability.” The key license term is “No pollution, no subsetting. If you implement part of the API, you have to implement all of it, and only the defined API.” (I used to be a compiler writer — various companies’ extensions of FORTRAN IV made interoperability unattainable.)
The point of the Java standard and copyright is interoperability, the highest form of compatibility. The kind of “compatibility” Prof Samuelson argues for is extremely weak, like the metric system — sure, all car parts are measured to metric units, but that doesn’t mean you can interoprate a Ford alternator with a VW engine or vice-versa.
Prof Samuelson, this is just dumb.
Yup. It is a policy goal. Where just like other academics funded by large corporations she is advocating for everything to be free to everyone to take for policy reasons.
Notice there is no argument about incentives to create the innovation.
As I say below, Pam has a long history of misrepresenting technology and clearly does not understand information processing.
Good point.
“Professor Pamela Samuelson”—seriously? How about “large corporate advocate Samuelson”?
Pam has long history of misrepresenting technology and science. She has no idea what she is talking and has advocated for “software” not being patentable and make these ridiculous arguments about structure and copyright that have no basis in science, technology, or fact.
Pam should not have a seat at the table. She is obviously there because she aligns with large corporate interests.
Pam’s analysis of “substantively excellent,” but she has no credentials–no training at all, for her to make an assessment of technology.
I’ve read her blog posts (or law journal articles as some call them) for 20 years and she doesn’t understand technology. She doesn’t even understand the equivalence of software, hardware, and firmware. She doesn’t understand the ladders of abstraction. She doesn’t understand what enablement means in terms of information processing.
Another figurehead paid for by big corporations. I’d like to see her finances. Probably a lot like Lemley’s. And I’d like to see if Berkeley took money to appoint her as a professor.
Plus, I hope everyone realizes that her main argument is policy based.
So rather than calling on Congress for new laws, she is calling on the Scotus to enact legislation based on policy considerations.
It’s amazing how often those who seek to diminish (or deny) innovation protection take the route of advocating for legislating from the bench.
Well, not really.
There is zero evidence that Samuelson’s views on copyright were based on “funding” by “large corporations.” Her skepticism of software copyright stretches back to papers she wrote in the early 1980s, and as you probably know, those views were absolutely at odds with what the “large corporations” at that time wanted. The nascent software industry of the early 1980s wanted strong protection across the board, and characterized views like Samuelson’s as those of unwashed hippies. It was not until much later that concerns over interoperability, competition, etc., which only emerged when the computer industry matured, led much of the industry to change its views on software copyright protection and adopt positions similar to Samuelson’s. So to allege that she’s an industry hired gun who doesn’t genuinely believe in what she preaches, is demonstrably false.
Except like Lemley she could have started out with ideals that there should be no IP protection because of some ideal state she believed could be created and then morphed and started focusing more on funding.
We don’t really know unless she gives us full disclosures. It is rather telling that Berkeley picked her up. Sounds a lot like the track of Lemley.
Of the writers for the 26 briefs, I have to wonder how many would, in their hurry to say “no copyright,” would turn around and admit “this is a functional thing and should fall into the realm of being protectable by patent?”
Any?
Then I wonder how many recognize the fact that an item may warrant protection for the different aspects of expression and functionality for different aspects of the single thing (that copyright protection of an item and patent protection of an item are NOT necessarily mutually exclusive)?
Of the writers for the 26 briefs, I have to wonder how many would, in their hurry to say “no copyright,” would turn around and admit “this is a functional thing and should fall into the realm of being protectable by patent?”
But, of course, the scope being talked about wouldn’t be the subject of a currently-operating patent. It’s not like a copy operation would be patentable, nor would the name of the copy operation being “Copy.”
This is a common loose mindset that I often see young prosecutors engage in – The fact that there may be *a* patentable invention hiding somewhere in the haystack does not mean that *this whole haystack* is patentable. I think it’s safe to assume that there is some aspect of innovation somewhere in the scheme, but that doesn’t mean that it was recognized at the time of the disclosure or that it would be infringed today if it was.
I see that my rebuff has been judged to have been too harsh.
Laughable editing.
Let’s try this: Random, you are wrong in supposing that my post HAS TO discuss a minutia of detail when my post is AIMED at a much larger understanding (that is, the BIG picture).
You err in presuming what my post is to be about, and in truth show your own fallacy by presuming that any comparative point (for those advocating the current positions in regards to copyright as a form of protection (for expression) versus patent as a form of protection (for utility). Your example of “Copy” betrays your tendency to miss the forest for the trees.
Further, you show an audacity and hubris that you have in NO way earned, by attempting to portray my larger import post as some type of “loose mindset” often seen from “young prosecutors.”
You are the one here showing a lack of experience and understanding.
I’m with you on this. Software shouldn’t be protected by copyright, which is both the wrong type of protection (patent makes more sense), and which provides protection for waaaaaaaaaaaay too long a period of time for this technology.
Dear “anon”: Please read EFF’s amicus brief, especially Section I.
link to eff.org
EFF…?
Otherwise known as the Efficient Infringer Front…?
THAT organization is no friend to innovation, so I doubt that I may find much use of their brief (but I may look at this weekend).
Oops…
Efficient InFringer Front
The EFF dopes are probably arguing 1st amendment freedom of speech – again.
Nope – not a whiff of a 1st Amendment position.
Michael,
At a first read, I will credit you for some nice composition and a fairly well-spread set of arguments.
However….
I am not impressed at the depth of several of your assertions — especially those that touch on functionality. You seem to (perhaps inadvertently) presume that the presence of functionality alone removes any sense of a different aspect of expression.
Also, your brief gives no clue — even as it touches on functionality — as to your stand on patent protection for those very same elements OF functionality.
Would you be willing to affirmatively state that aspects of functionality fully fall into the realm of patent protection for A design choice of “ware” in the computing realm?
I will affirmatively state this: Oracle originally sued Google on seven patent claims and one copyright claim. Oracle lost on all seven patents. Having lost its attempt to get a 20-year patent monopoly, Oracle wants a 95-year copyright monopoly as a consolation prize. That’s not how the Constitution works, or how the copyright laws work, or how the patent laws work. (For unknown reasons, Oracle didn’t even sue Google on U.S. Patent No. 6,598,093, “Method and apparatus for a core application programming interface.”)
Anyway, Oracle (at least) felt that the functional aspects of its case did indeed “fall into the realm of patent protection,” as you put it. But if Oracle’s/Sun’s alleged inventions aren’t good enough to protect that functionality using the patent laws, they have no business being the subject of a copyright claim.
You ‘affirmatively’ deflect to what Oracle did and do not answer my question of you….
I also understand the conclusion you want to reach, but you only double down on the apparent Means to that End that you feel that the patent/copyright realms are mutually exclusive, when in fact they are not (to an item that may have multiple aspects).
How you have chosen to not answer my questions speaks as loudly as any direct answer that you wanted to avoid giving.
You fit right in with the Efficient InFringer Front.
That’s not a good thing.
Thanks Dennis!
It seem safe to assume that the Supreme Court will not going to treat the Fed. Cir. as a copyright-expertise appellate court like the 2d or 9th. [They get relatively little credit for that even in patent cases.]
I see that your brief does internally argue Lotus Dev. Corp. v. Borland Int’l, Inc., (1st Cir. 1995), aff’d by a 4-4 Sup.Ct. split, 516 U.S. 233 (1996). Is that case more strongly relied upon in other amicus briefs? It seems close to me.
Dennis didn’t write this post. It’s a guest post by Pamela Samuelson, who co-authored one of the amicus briefs.
Is Pamela Samuelson any relation to the famous economics professor, Paul Samuelson?
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