Oracle’s brief: More competing questions

By Jason Rantanen

Yesterday, Dennis wrote about competing questions in a Supreme Court cert petition.  In its merits brief in Google LLC v. Oracle America, Inc., filed on Wednesday, Respondent Oracle also frames the issues a bit differently than Google did.

Google Questions presented

Oracle Questions presented

1. Whether copyright protection extends to a software interface. 1. Under §102(a), computer programs, like all “works of authorship,” have “[c]opyright protection,” as long as they are “original.” The merger doctrine does not make any expression unprotectable except in the rare circumstance where there were very few ways to express the idea. Does the Copyright Act protect the code and organization that Google concedes were original and creative and that Oracle could have written in countless ways to perform the same function?
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. 2. Was the Court of Appeals correct in holding that Google’s copying was not fair, where Google conceded it copied for commercial purposes and that the code it copied serves the same purpose and has the same meaning, and Google did not dispute the evidence that Android competes directly with Oracle’s work, harming its actual and potential markets?

Read Google’s brief here: Brief of Petitioner (Google)

Read Oracle’s brief here: Respondent Brief (Oracle)

We’re reading the Google and Oracle briefs in my Introduction to Intellectual Property class this semester as part of the concluding exercise for the unit on copyright.  On Monday we’ll discuss and debate the two positions in small groups then see which is most persuasive to a group of smart law students with a few weeks of copyright law.

50 thoughts on “Oracle’s brief: More competing questions

  1. 7

    “Whether copyright protection extends to a software interface.”

    I’m going to bet the answer is going to be no. Given the justices dislike of protection for any information processing and their previous case law on the menu structure of a spreadsheet, I can’t image that this is going to come out in favor of Oracle.

    My take on this is that this is definitely copying. There were many other ways to build the API and the fact that exact names were used illustrates that it was built to copy. But then that was nearly the same fact patter for the menus and macros as I remember. I would need to reread that case.

    The court found that Arce did not commit an act of infringement in using menu structures that were similar to MiTek’s, because MiTek’s menu structures were not subject to protection under the Copyright Act. Contrary to the decision of the Court of Appeals for the First Circuit in Lotus Development Corporation v. Borland International, Inc., affirmed by a divided United States Supreme Court in early 1996, the Eleventh Circuit did not hold that menu structures were unable to be copyrighted as a matter of law. Rather, the Eleventh Circuit affirmed the district court’s finding that the menu structures in this case were equivalent to a process which should be protected, if at all, by a patent. The key to the decision was the fact that the menu structures mimicked the steps a draftsman would follow in designing a wood truss by hand.

    1. 7.1

      Notice too that these copyright cases are saying there is structure in information processing.

      The reality is that consistency no longer matter. Reality no longer matters. The tyrants are going to fabricate some new reality to suit their judicial activists’ goals and there is nothing we can do about it but p iss & mo an.

    2. 7.2

      So my guess is that these are going to be held functional and protectable only with a patent. (But all patents to these will be held abstract by lower courts.)

      Be a while since I read Catch 22, but I seem to remember the crux of it was that in order to be discharged from the Army for being insane you had to request to be discharged, but you were deemed not insane if you requested to be discharged from the Army.

  2. 6

    Oracle’s QP is so slanted that it permits only one reasonable conclusion. That is not how a QP should be drafted, and it is not what the judges what.

    1. 6.1

      Brother Anon, I will agree and disagree with you — noting that the question presented MAY indeed provide only one reasonable choice – but such may well be the result of an object view of the case at that point.

      The larger issue is when the parties simply are skewing things from being anything remotely resembling an objective view.

      There is a term for that (and it is not ‘zealous advocacy’).

      The term is

      1. 6.1.1

        Anon @ 6.1 —

        No, each set of lawyers is doing exactly what they’re supposed to do: directing attention to their good facts, and doing the best they can to minimize the bad facts.

        Google is pointing to the broad genus of software interfaces — they’ve got some authority from Courts of Appeals (Lotus v Borland, etc.) to the effect that, as a broad genus, some software interfaces are not copyrightable.

        Oracle is focusing on the specific facts of this specific case, and arguing that the broad genus doesn’t control, on this specific set of facts, this specific computer interface is copyrightable.

        The difference between the two Questions Presented has no bad motive. They’re simply emphasizing different facts. Google had to go for the generic case and divert attention off the specific facts in order to get a cert grant — the best outcome they can hope for is delay of the inevitable in a loser case. Oracle is emphasizing the specific facts in order to win the case.

        This is all something you should understand deep into your bones. Someone I know is really really good at ignoring specific facts and attributing bad motive to inferences that arise only out of that person’s own careless reading.



          Not buying it.

          The action you speak of: good and bad facts and treatment thereof – is outside of the objective setting of the issue to be decided.

          If one wants to advance a different issue, then one is ethically bound to draw attention to the fact that a different issue is desired to be answered. Obscuring the issue in the question presented is outside of what passes as duty to the court. There is simply no way that it is proper to have questions presented that cannot exist together. Sins of omission do not change a li ar into a non-li ar. If, as a matter of law, a jury’s view has been thrown out, it is simply not proper to insert to the court the misleading notion that the jury’s view still controls.

          It is altogether different — in the brief — to acknowledge that the jury’s view was thrown out and for various reasons this action should be reconsidered. It is simply different to pose as the objective issue a state that just is not so.

          Such is NOT what is going on when the sides are each taking so much liberty, that the objective issue being put to the court cannot coexist in the two versions presented.

          There IS bad motive when objectivity is lost for THAT portion.

          Please note that I provide full opportunity FOR zealous advocacy in regards to how one turns and treats the objective issue — one still has ethical responsibility to acknowledge controlling law even while advancing arguments as to why that control goes law should be changed, or why there is some distinguishing point that should be considered.

          The item I speak to is NOT that type of action.


            Dear Anon @ —

            In our system, different parties play different roles.

            The lawyers are advocates. A lawyer’s job is to frame the legal issues, and emphasize the facts, that lead to the client’s preferred outcome. Advocates are not objective, and are not supposed to be.

            Judges are supposed to take the two alternatives and do the best they can to be objective in weighing them.

            If one wants to advance a different issue, then one is ethically bound to draw attention to the fact that a different issue is desired to be answered. Obscuring the issue in the question presented is outside of what passes as duty to the court.

            Where did that come from? It’s nonsense.

            One advocate wants one issue to be answered. The other advocate wants the other issue answered. It is certainly not the case that the petitioner’s framing of the Question Presented is better or fairer than the respondent’s.

            I had always suspected it, now I know. You’ve never been to law school.


              You confuse “role” and omit duty of candor (as well as simply not pay enough attention to the fact that I fully provide for the role that you want to emphasize).

              You can’t see beyond how you have been trained with the mangling of the question provided and ASSume that anyone not seeing things as you see them could not possibly have gone to law school.

              Sometimes Davey, your ego is too big.
              This is one of those times.


                Dear Anon @ —

                You mention some “duty of candor.” In my post I asked “Where did that come from?” I’ll ask it again — where does this duty come from? It’s nonsense.

                Various laws create duties of candor to ex parte tribunals. When there’s no opposing party, and the tribunal itself has no investigative capacity, in those cases, there are written laws that create a duty of candor.

                For adversarial tribunals, there was a duty of candor in Rule 11 for about a decade. But it was repealed years ago. There is no such duty now.

                If you can demonstrate that you have the foggiest idea what you’re talking about, based on something more substantial than your lack of knowledge, please identify the source of this “duty of candor” that would apply in pleadings to the Supreme Court.

                1. When your ego gets in the way, it gets in the way in a massive manner.

                  Blogging is just not your thing Davey. Give you time (and structure) to compose a legal position and you are one of the best. Have you respond in an instant and your ‘mere mortality’ shines through.

                  In this instant, stop and think about YOUR declaration that attorneys owe NO duty of candor in a writing to the Supreme Court.

                  Is that really the position that you want to own in your hurry to disagree with me?

                2. Anon —

                  Please don’t misquote me, especially not to evade.

                  Please identify a written document that states a “duty of candor” to an adversarial tribunal that is implicated by framing a favorable Question Presented, where that duty goes above Rule 11.

                3. Where have I misquoted you?

                  Sorry Davey – but taking what you say to mean what your words actually say is NOT misquoting you.

                  It is only pointing out your weakness in the position that you have staked out (in your hurry to disagree with me).

                  So, once again, is that really the position that you want to own?

                  Note here, that IF it is NOT the position that you want to own, then YOU are in effect agreeing with me — whether or not I hew to your LESS blogging style.

                  Dave – you really ought to learn to recognize your strengths AND your weaknesses.

                4. Anon —

                  Please identify a written document that states a “duty of candor” to an adversarial tribunal that is implicated by framing a favorable Question Presented, where that duty goes above Rule 11.

                5. Davey – do you yet realize WHY I do not have to ‘produce’ the document that you demand for my immediate point here to be the better point than you attempt?

                  You just jumped TOO quickly to disagree with me, and you end up having to defend an indefensible position.

                  As I stated: blogging is NOT where you excel at.

                  Know your limitations.

                6. Anon —

                  Please identify a written document that states a “duty of candor” to an adversarial tribunal that is implicated by framing a favorable Question Presented , where that duty goes above Rule 11.

                7. When one asks the same question three times and one gets no answer, that is itself a species of answer.

                8. From the inte11ectual coward who has openly admitted that he can see no answer, the notion that he would state:

                  and one gets no answer

                  is more than just a little ludicrous.

                  Poor Davey HAS been given an answer — it just happens to be one that he does not like.

                  He really should NOT jump so fact in disagreement, when doing so creates for him a situation that HE cannot defend.

                  That he sits there and pouts and still wants some answer, when HIS position is not defensible only all the more proves my point that blogging is NOT one of his strong points.

                  The ‘ball’ is simply NOT in my court. Davy has the ball fully in his court. He can continue to whine and pout and pretend otherwise, or he can realize just why his premature jumping has put him into the flames.

                  His choice.

                9. Dear Anon —

                  I framed the question. You want to keep the discussion on a different question. Does your different choice of question make you a

                  I will answer your question, and then you can answer mine.

                  I reaffirm, there is no duty of candor that applies here. There are Rule 11 duties of truthfulness, but no duty of candor. “Candor” (in a legal setting) is going beyond mere truthfulness to ratting out the weaknesses in one’s own case. In an adversarial setting, before an inter partes tribunal, I know of no duty of candor that applies today.

                  My sentence was:

                  there was a duty of candor in Rule 11 for about a decade. But it was repealed years ago. There is no such duty now.

                  Rule 11 still has duties of truthfulness. But the Rule 11 duties of candor (to notify a court of contrary facts and law, duties that were there in the 1980s) were repealed years and years ago.

                  Your turn.

                  Please identify a written document that states a “duty of candor” to an adversarial tribunal that is implicated by framing a favorable Question Presented , where that duty goes above Rule 11.

                10. Davey,

                  Your attempted framing simply does not work for what you want it to work for.

                  Are you ready to defend the indefensible?

                  Let’s be perfectly clear on that point (you know, so you won’t accuse me of doing something that I have not done, like ‘misquote’ you).

                11. FIVE posts from Davey not liking the answer that I had given him, and then when I give him the explicit thing he asks for, he disappears.

                  That’s a fine “how to do”

    2. 6.2

      Anon —

      I disagree. For a merits stage brief, Oracle’s Question is much better than Google’s. Oracle’s Question asks the Court to decide one case. Oracle sets forth the principles that lead to a specific result. Oracle’s Question states the relevant facts, and ties it to the relevant law.

      Google’s Question is probably better at cert stage, precisely because it’s so encompassing. But it’s a lousy merits stage question — too easy to poke holes.

      A good brief “permits only one reasonable conclusion.” What else is a lawyer supposed to do? Where did you get the notion that specificity is “not what the judges want?” On what court did you clerk?


      1. 6.2.1

        Dennis —

        They’re also good briefs to help students understand the anatomy of a good brief. Depending on your academic/pedagogical goals, you may want to spend as much time dissecting them as briefs as dissecting them as instruments of copyright law.

        The USIJ amicus brief ought to be pretty good too.


      2. 6.2.2

        The problem is that as far as I know Oracle’s question includes factual conclusions that Google does not concede in that it states “endless.”


          The two sets cannot exist together — one of them is:

          (prevarication, half truths, and ‘spin’ to this level that destroys any sense of objectivity falls into my classification).

          Law professors SHOULD be teaching against this type of behavior.


          Night Writer —

          The concession is by silence. Oracle has raised the point many times, that Sun had an “endless” (in the sense of a countable infinity) set of equivalent alternative expressions. Google hasn’t contested that. At all. Oracles’ point would be that at some point, silence fairly is characterized as a concession.


    1. 5.1

      There certainly is some ‘big bucks’ involved here — for both sides.

      Why might you be surprised then that the number of attorneys is rather large?

  3. 4

    OT, but link to

    Each of the judges on the CAFC should be forced to listen to this video and then tested. If they can’t understand what an abstraction is from this video or some of the other issues like structure and information processing, then they should resign and go do work more fitting to their education and interests like traffic court.

    1. 4.1

      I see the following in science papers. Note that law journal articles have no such statements and as was exposed many law journal articles by anti-IP large corporate advocates pretending to be professors could not make either of the following statements. And yet they are regularly promoted on this site.

      “Competing financial interests
      We declare no competing financial interests.”

      “Ethics compliance statement
      We declare that we complied with all relevant ethical regulations.”

      1. 4.1.1

        Too true. There is no good reason why legal academics should not make the same conflict of interest disclosures as academics in the sciences.


          Given that actual attorneys ALSO operate under a fairly strict code of ethics, one would not be off in wondering why the teachers of those practitioners would not also have a code of ethics. In fact, as I have noted previously (and given that these same teachers are also active in attempting to SHAPE the laws that they teach), the code of ethics for law professors should be even MORE strict.

    2. 4.2

      I like the link, but one really has to be in a “tech mode” to engage in active listening there (truth be told, I will have to come back for that mode).

      Notwithstanding THAT, I do want to add a parallel layer here — and one that is critical for those that actually are involved in writing and prosecuting applications that protect innovators: that of the (should be common) analog of the Ladders of Abstraction in not only capturing what an innovation is, but in capturing the FULL legal realm of the innovation.

      While Night Writer does like to occasionally provide these deeper thinking links as to the technical underpinnings of innovation in the computing arts — and I will be the first to say that these types of things are very important, I will add that the larger discussions on this blog are those that wish to push legal views that for which the type of intense technical thinking need not be grasped at the level one should expect anyone willing to pontificate in the computing arts should grasp.

      In other words, if you are one that wants to pontificate on patent law matters in the computing arts, you SHOULD be able to follow along the discussion that the link that Night Writer provides.

      If you want to pontificate on patent law matters in NON-computing arts, applying the level of active listening and critical thinking may not be fully necessary — AS LONG AS YOU REALIZE — that there ARE more “general”
      patent law equivalents that you SHOULD be able to apply active listening and critical thinking: and in particular, is the notion that patent claims are written after attorney who have a foot in both the technical world and in the legal world USE the technique of Ladders of Abstraction in order to properly capture the full legal effect of an innovation — BOTH for that innovation’s technical merits, as well as that innovation’s legal merits.

      It is by NO means to be limited to the judges of the CAFC to listen and to be tested to the video presented (especially on technical merits of innovation in any such affected arts that may appear before them). The Justices of the Supreme Court (which are guilty of attempting to train the CAFC judges) should every bit have to listen and be tested.

      And again – THIS type of technical listening and testing is important for any case that is involved in the computing arts.

      But aside from any such case in the computing arts, ALL judges and Justices should listen to and be tested as to the analog of this type of video on the LEGAL Ladders of Abstraction and the critical relation of that technique to protecting the legal aspects of innovation (and ALL types of innovation, not just innovation in the computing arts).

      1. 4.2.1

        ” capturing what an innovation is, but in capturing the FULL legal realm of the innovation.”

        And once again you presuppose that in the magical legal realm that one is permitted to “capture” the FULL “legal realm” “of the innovation”. Not necessarily the case brosefulous.


          Not only is such “THE CASE,” such is the entire effort under the law of 35 USC et seq.

          Not sure then what you could possibly mean by “presuppose.”


            Not true at all brosefulous, even setting 101 to the side, people are routinely denied smaller portions of the overall “the innovation” just under 102/103 (and to a lesser extent 112) and the limits of people’s ability to draft. Happens every day, a thousand times a day. Literally routine.


              Not at all what I am talking about, 6.

              What you bring up here are merely actual legal limitations to what may be properly captured.

              I am already fully in line with any such proper limitations and my comment simply has nothing at all to do with such proper limitations.


                “What you bring up here are merely actual legal limitations to what may be properly captured.”

                And that’s all that 101 is. An actual legal limitation to what may propaly be captured. Gubna.

                1. And that’s all that 101 is.

                  Perhaps at the initial point of time of original writing by Congress.

                  But the scoreboard IS broken 6, and it has NOT been the writing of Congress that broke the scoreboard.

                  This, your post proves MY point.

      2. 4.2.2

        anon I understand patent law at least as well as you do.

        The reason I bring science and technology into the discussion is to illustrate that the legal positions taken by the Scotus and CAFC judges is counter to science and technology. The law has to fairly model reality or it is arbitrary and unjust.

        In the case of information processing jurisprudent the judges and justices have adopted characterizations that do not reflect the underlying reality.

        We see that in their treatment of abstracts ignoring the ladder of abstractions in science and engineering. We see that in their talk of information processing happening in the ether ignoring that information processing is a physical process. We see that in their talk of information processing methods and apparatuses having no structure ignoring science that there not only must be structure but we can easily point to the structure even if it is microscopic. Etc.


          And another one is that just because there are many solutions to a problem that one skilled in the art knows that something is not enabled, which ignores modern science and engineering.


          Completely agree Night Writer, and my ‘add’ is not to detract from your science angle at all.

          I just remember that the likes of Greg ‘I Use My Real Name’ DeLassus has tossed away your science angle with the comment of ‘but we are talking about law.’

          My add FOR the law parallel is direct those like Greg to realize that the factual notions in your science comments have a direct connection to the patent law side of the discussion.

  4. 1

    For the record, Oracle originally filed this lawsuit against Google on August 13, 2010.

    The parties have been arguing this same case over these same issues for ten years.

    1. 1.1

      “The parties have been arguing this same case over these same issues for ten years.”

      Justice delayed is . . .

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