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CCIA Files Amicus Brief in Support of Google in Oracle v. Google ~pj
Monday, June 03 2013 @ 04:52 PM EDT

The Computer & Communications Industry Association (CCIA) has now filed an amicus brief [PDF; also on CCIA's website here] in support of Google in the appeal of Oracle v. Google, and I have it for you as text. Once again, the court has not yet officially accepted it, and there could be corrections, which I'll let you know about if that happens, which it frequently does.

It's a more sophisticated level of argument than some of the others. Oracle, the brief says, is asking to overturn longstanding principles concerning the scope of copyright protection for computer programs, posing serious anticompetitive concerns for the tech industry. Oracle could, if successful, control who can interoperate with its products, leading to a broad monopoly. "The United States and over 40 other countries have recognized that permitting copyright law to impede interoperability would harm legitimate competition in the computer industry and impair the growth of the Internet economy." Amen to that.

"Free trade agreements mandate protections for interoperability," CCIA uniquely points out. "In addition to the reverse engineering exceptions adopted pursuant to the FTAs, legislation favoring interoperability has been adopted in over 40 countries, including many major U.S. trading partners," including the EU, the Pacific Rim, Canada, India, Israel, Kenya, and many others. Trading partners rely on a type of interoperability too, only in the law, not in computer code. If the US makes a sudden 180 turn in its view of copyright protections on interoperability, what happens to that trading partnership? To those free trade agreements? "CCIA, its members, and several litigants and amici here played a major role in creating this global legal environment that fosters interoperability and innovation. This case should not provide a basis for relitigating or legislating against more than two decades of established international law and jurisprudence," the brief concludes.

And the CCIA brief responds to some of the amici supporting Oracle, including Eugene Spafford [PDF] and the the BSA [PDF]. I'd like to do the same, and I'll show you a connection I see between Oracle and SCO Group's theories of copyright, and why I think they are pretty much the same and equally toxic.

read more (13292 words) 183 comments  View Printable Version
Most Recent Post: 06/17 12:51AM by Anonymous

Amicus Brief of Intellectual Property Law Professors in Support of Google and Affirmance ~pj
Monday, June 03 2013 @ 03:25 AM EDT

Bit by bit, the amicus briefs on behalf of Google in the Oracle v. Google appeal about the uncopyrightability of Java APIs are becoming available. They are all interesting in different ways, but they all agree -- Oracle is wrong on the law and if it prevails, it will be a sad day for innovation. Copyright protection doesn't extend to procedures, processes, systems, or methods of operation, and it shouldn't.

This brief, on behalf of 39 intellectual property professors, and written and signed by Pamela Samuelson, outlines three legal errors they all believe Oracle is making:

  • that Oracle takes an unduly narrow view of 17 U.S.C. § 102(b)

  • it takes an overbroad view of the copyrightability of the structure, sequense and organization, or SSO, of computer programs -- so did SCO, I can't help but add, also represented by David Boies, and SCO's larks were partly funded by Microsoft, who is supporting Oracle, and

  • it misunderstands the merger doctrine as it applies to interoperability.

Here's where you can find the "Brief of Amici Curiae Intellectual Property Professors in Support of Defendant-Cross Appellant and Affirmance." That's the title of the brief, and it is available on SSRN.

Oracle has struck an ominous chord with its claims, and the alarm they and other amici are expressing is sincere and deep. And what they are saying in chorus is: Oracle is wrong about the law on APIs. In fact, one case Oracle hangs its hat on, Apple Computer, Inc. v. Franklin Computer Corp., isn't binding precedent for Oracle, the brief highlights. It's a Third Circuit case (it was also merely dicta and the facts were distinguishable), and Oracle's case is in the Ninth. The court of appeals is supposed to give deference to the Ninth Circuit precedent. And dicta isn't precedential anyway. The cases that are more binding are cases Oracle ignores, like Computer Associates Int’l, Inc. v. Altai, Inc. and Sega Enterprises, Ltd. v. Accolade, Inc., and under their teaching, "the Java APIs should be deemed unprotectable by copyright law" because the district court found that these Java APIs were necessary to achieve interoperability.

Further, the brief cites Sony Computer Entertainment, Inc. v. Connectix, Inc. , where Connectix emulated the Sony functionality of the Playstation, but the court ruled that the Sony interface procedures were unprotected elements, even though the Connectix software "aimed to be a substitute for the plaintiff's product" and was not fully compatible with the Playstation games. That should put a sock in Oracle's mouth about compatibility, methinks. It keeps saying that Java and Android are not fullly compatible. The answer to that from these IP law professors is, the Ninth Circuit already handled a case like that, and it didn't alter the unprotectability of the interfaces.

They ask the appeals court to affirm Judge William Alsup's decision:

Oracle has invited this Court to ignore or radically reinterpret more than two decades of copyright jurisprudence concerning the application of copyright law to elements of computer programs that are essential to achieving interoperability among programs. This Court should decline this invitation.

read more (3033 words) 80 comments  View Printable Version
Most Recent Post: 06/04 05:32PM by Wol

Microsoft Assigns Six Patents to Patent Troll Vringo -- Is This an Antitrust Issue? ~pj Updated
Saturday, June 01 2013 @ 02:36 PM EDT

Is Microsoft's motto 'Always Be Evil'? Look at this report from Joe Mullin at ars technica on Microsoft's latest patent scheming:
Some days $30 million seems like a lot of money, and other days it's just a bit of a letdown. Vringo is a once-upon-a-time ringtone company that's now basically a holding company for search patents dating back to the Lycos days, and it used those patents to sue Google. In November, a federal jury found that the patents were infringed, but Google should pay just $30 million, far less than the nearly $700 million it was seeking.

Investors had big dreams for Vringo, but that too-small payday, combined with an assurance of a lengthy appeal by Google, has left the stock price disappointingly stagnant.

In January Vringo unveiled its wholly predictable backup plan—sue the one other viable search engine, Microsoft's Bing. Now that case has settled for $1 million, plus five percent of whatever Google ultimately pays, according to a Vringo regulatory filing yesterday...

The five percent addendum is an interesting twist to this early settlement. One has to wonder if Microsoft really fought very hard. The company has effectively paid $1 million for an "option" to see its chief competitor hurt 20 times as bad as it is.

The settlement also provides for Microsoft to transfer six patents to I/P engine, the patent-holding subsidiary of Vringo. "The assigned patents relate to telecommunications, data management, and other technology areas," stated Vringo in its filing.

Of course Google is appealing the verdict. Now this ploy by Microsoft. Now, why would it assign patents to Vringo? Maybe because Vringo's dreams of destroying Google with its Lycos patents didn't come true? Is it time for some prior art searching? How about some antitrust investigation of companies outsourcing to trolls to ding a competitor?

read more (1000 words) 195 comments  View Printable Version
Most Recent Post: 06/04 01:51PM by Anonymous

Innovators, Entrepreneurs and Funds File Amicus in Support of Google in Oracle v. Google Appeal ~pj Updated
Friday, May 31 2013 @ 03:44 PM EDT

The remarkable outpouring of support for Google in the Oracle v. Google appeal continues, with a group of well-known innovators, start-ups, and those who fund them -- innovators like Ray Ozzie, Tim O'Reilly, Mitch Kapor, Dan Bricklin, and Esther Dyson -- standing with yesterday's group of leading computer scientists in telling the court that Oracle's attempt to copyright its Java APIs would be damaging to innovation.

Why? Because it would represent a change in the way copyright has worked since at least 1879, when Baker v. Selden was decided. "The scope of copyright protection for computer programs has always been carefully and purposefully limited," the brief notes. Remember Lotus v. Borland where the court found that a menu command hierarchy was an uncopyrightable method of operation "because it was essential to making use of the program’s functional capabilities"? "The Java API elements at issue here are comparable to the menu hierarchy in Lotus: uncopyrightable because they constitute the method of operation through which a user’s program accesses, controls, and makes use of the functional capabilities of the Java API," they tell the court. So why is Oracle trying to upset this careful balance?

Jennifer Urban, with the Samuelson Law, Technology and Public Policy Clinic at the U.C. Berkeley School of Law is representing this group, and here's their amicus brief [PDF] in support of Google. They tell the court why they care about this case and how they hope to be helpful to the court:

Amici are software innovators, start-ups, and investors. The signatories on this brief include innovators, and founders of software and Internet companies that actively innovate in and compete across a wide array of markets. Signatories also include investors who invest in, and are expert in assessing the risks of investing in, companies that rely on APIs and other interoperability tools. Amici have broad first-hand experience in the role of interoperability—and the balanced and stable copyright rules on which it depends—in driving innovation in the technology sector. A full list of amici with individual descriptions can be found at

Amici’s shared interest in this case is in preserving the deliberate balance Congress and the courts have established for software copyright, including longstanding limits on copyrightability that enable innovation by fostering interoperability and competition. Amici join to explain the importance to innovation and investment in innovation of upholding the District Court’s careful application of these limitations to the Java API elements at issue in this case.

I'm so glad people who fully understand the technology are stepping up to explain it to the court, in the hope that it will help the court to reach a better decision. It must be very difficult to rule on a case if you don't understand the technology or fully grasp the implications of a case. And as the brief points out, if Oracle's position were to be adopted, even in part, it would "drastically expand copyrightability".

read more (10538 words) 63 comments  View Printable Version
Most Recent Post: 06/04 08:04AM by mvs_tomm

EFF Files Amicus Brief in Oracle v. Google Appeal - Finally, Computer Scientists Speak ~pj Updated
Thursday, May 30 2013 @ 08:57 PM EDT

An amazing collection of the leading computer scientists in the world have joined together to stand with Google and against Oracle in the Oracle v. Google appeal about APIs, and they ask the court to affirm Judge William Alsup's decision that the Java APIs are not copyrightable. It's in an amicus brief [PDF] that EFF has just filed. Here's EFF's press release.

And what do they say to the court? Exactly what you'd say, if you filed an amicus brief. Exactly what every computer scientist I know would say if filing an amicus brief about APIs:

Amici are numerous individual computer scientists who believe the District Court correctly decided this case and who urge this Court to uphold that ruling. The signatories to this brief include some of the leading, pioneering scientists in the computer industry. They have invented or contributed to the authorship of numerous computer programs. They have joined this brief because they believe the District Court correctly rejected Oracle’s attempt to overextend copyright coverage in a manner irreconcilable with the purpose of copyright law and the nature of computer science.

As computer scientists, amici have relied on the open nature of APIs and the programs built on them to create and operate new software. Amici depend on APIs remaining open to sustain widespread compatibility standards used by startups and incumbents alike. Reversing the District Court would dangerously undermine the settled expectations of computer scientists who rely upon the open nature of APIs.

I believe this means that Oracle has now managed to dismay pretty much all the leaders in its chosen field. What kind of business sense does that make? Seriously, Oracle. Think this through, please. Bad karma lingers. This is your family. It's a family intervention.

read more (11055 words) 249 comments  View Printable Version
Most Recent Post: 06/03 06:49PM by Wol

Software Freedom Law Center Says Google's Draft VP8 Cross License is Compatible With FOSS Licensing ~pj Updated
Wednesday, May 29 2013 @ 04:43 PM EDT

This is important news, because there have been several articles claiming the opposite, and it's good to be precise and careful. It's why I waited until the Software Freedom Law Center could tell us whether Google's VP8 patent cross-license is or is not compatible with FOSS licensing.

The short answer is, it is:

SFLC, like its client the Free Software Foundation, believes that software standing alone should not be patentable subject matter. We join skeptics of the VP8 license and the broader FOSS community in rejecting software patents in all forms, and we will continue to oppose them. But until software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting. It's not perfect, but no other modern web video format provides nearly the same degree of protection for FOSS implementations.
Surprised? Me too. But as I've often told you, the law is complex, and if we are not lawyers, we are not lawyers, and as a result sometimes elements of the complexity can fly over our heads. That's the bottom line for all of us non-lawyers. When in doubt, I ask one to be sure, because guessing can lead to problems. It was right to consider the question, by the way, but now we know the answer.

We can put this episode in the same, ever-growing pile of materials where folks have leaped to a negative conclusion about Google, without basis, as it turns out. Google went to a lot of effort and expense to protect the FOSS community, and look at its reward -- undeserved criticism. FOSSPatents got this totally wrong, of course. If someone had forced me to write about this before today, I would have gotten it wrong too, to be honest (just not *that* wrong), so I'm not pointing fingers, but I am correcting the record. It's official. Google's draft cross license is compatible with FOSS licensing.

read more (1151 words) 215 comments  View Printable Version
Most Recent Post: 06/01 10:28AM by Anonymous

Google Files Appeal Brief and Cross Appeal in Oracle v. Google ~pj Updated 3Xs
Tuesday, May 28 2013 @ 11:09 PM EDT

Google has now responded to Oracle's appeal in the Oracle v. Google API copyright case. Plus it adds its own cross appeal. It's fascinating.

We're working on a text version for you, but in the meantime, I'll show you the introduction. I'd sum it up like this: The Java API isn't a work of imaginative fiction. It's a functional, utilitarian work. The issue isn't how "creative" it may be; the legal question is how functional is it? So Oracle is asking for something for its functional work that Copyright Law doesn't provide, from Google's perspective (and mine):

However creative and useful the Java API may be, it is fundamentally a functional, utilitarian work. It exists for the practical convenience of programmers. A work of imaginative fiction like Harry Potter serves no such utilitarian function. Its chapter headings and topic sentences exist entirely for communicative and aesthetic purposes—not to “bring about a certain result” when used in a computer.

No court accepts Oracle’s premise that functional works like the Java API obtain the same level of copyright protection as works of imaginative fiction. The "fundamental purpose of the Copyright Act" is to "encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on." Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). Therefore, if a work is “largely functional,” like software, “it receives only weak protection. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.” Id. (citation and quotation marks omitted).

Copyright protection of functional works is said to be 'thin' because section 102(b) of the Copyright Act filters out and denies protection to the functional elements within those works. The more functional the work is, the more there is to filter out. Section 102(b) provides that "[i]n 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." Congress explained that one reason for enacting section 102(b) was to "make clear" that "the ‘writing" expressing [a programmer’s] ideas”—his code—is “the copyrightable element in a computer program," while "the actual processes or methods embodied in the program are not within the scope of the copyright law."

If Oracle wanted patent-like protection, it should have gotten patents. It's too late for Oracle to ask the court to ask for a ruling of copyrightability of the code anyway, Google asserts, because it waived it, but if the court nevertheless reverses the copyrightability judgment of the district court, it should direct it on remand to retry Google's fair use defense as well as the related issue of infringement:
Sensing that its SSO claim may be doomed, Oracle argues that -- SSO aside -- there is an “independent” ground for reversal based on the purported copyrightability of 7,000 lines of non-implementing code that make up the class and method names and declarations of the 37 packages. But any asserted error regarding those 7,000 lines is both harmless and waived, because the district court gave the jurors instructions and a verdict form that barred them from considering whether Google infringed those lines, independent of their SSO. Oracle failed to challenge the instructions or the verdict form at trial, or in its opening brief. Thus, the copyrightability of the 7,000 lines (apart from the SSO) is not an issue in this case, and a reversal based on that theory could not alter the ultimate judgment.

Accordingly, this Court should affirm the copyrightability judgment while granting Google’s cross-appeal on two minor issues of literal infringement. However, if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google’s fair-use defense (as well as the inseparable issue of infringement).

Here are the issues on Google's Cross Appeal:
Was Google’s use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?

read more (20846 words) 111 comments  View Printable Version
Most Recent Post: 06/06 07:01PM by PJ

IBM Responds to SCO's Motion Asking for Reconsideration ~pj
Saturday, May 25 2013 @ 03:30 AM EDT

IBM has filed its response [PDF] to SCO's motion asking for reconsideration of the Court's order denying SCO's motion to reopen the SCO v. IBM case. I have it as text for you.

IBM tells Judge David Nuffer that it doesn't oppose reopening the case at all -- in fact it says it should happen. IBM has a proposed outline on how to proceed thereafter. Its plan differs from SCO's.

Rather than deciding all the still pending summary judgment motions filed five years ago immediately, IBM suggests a process that goes like this: First, toss out all the claims that the SCO v. Novell final judgment made moot, the ones SCO concedes are foreclosed. That would be almost all of them. I believe all that's left, if it is still viable, which I doubt, is SCO's unfair competition claim regarding Project Monterey and its tortious interference claim alleging that IBM interfered with SCO’s market and business relationships. At least that's what SCO listed the first time it tried to reopen this case.

After that, IBM suggests it file a motion for summary judgment regarding its position on the impact of the Novell judgment, and if the court agrees, "it will be unnecessary for the Court to decide a number of the pending summary judgment motions to resolve these claims." If not, the parties will need to come up with a scheduling order, because there will likely be a need for further briefing, in that the pending summary judgment motions were filed years ago, and "the body of relevant case law has grown."

The Novell judgment, IBM further points out -- and this is the part that reveals why IBM doesn't mind a bit if the case is reopened -- did not resolve all of IBM's counterclaims:

For example, while the Novell Judgment strengthens IBM’s counterclaims concerning SCO’s campaign to create fear, uncertainty and doubt about IBM’s products and services, it does not completely resolve all of those claims. Thus, the Court will need to address certain of the pending motions, which may also require supplemental briefing and argument.
IBM doesn't mention it here, but I recall that there is a counterclaim of copyright infringement related to the GPL. So a scheduling order is going to have to happen in any case. And finally, if SCO elects to pursue other matters it has mentioned before, the Court may need to decide those issues. IBM attaches as Exhibit A its 2011 filing, "IBM’s Memorandum Responding to SCO’s Request to Reopen", filed in response to an earlier attempt by SCO to reopen the case, and it suggests that the court proceed as described in that filing. That's also where SCO's other matters it may or may not elect to pursue are found, in paragraph 12, essentially some pending motions for reconsiderations of earlier judges' decisions that went against SCO.

read more (1870 words) 401 comments  View Printable Version
Most Recent Post: 06/03 12:21PM by hardmath

Apple's Stupid Patents It Wants to Use Against Samsung's Galaxy S4 ~pj Updated 4Xs Prior Art?
Thursday, May 23 2013 @ 11:31 PM EDT

The judge in Apple v. Samsung II asked the parties to narrow their claims, so they did but now Apple would like to add more claims [PDF], specifically to include the Galaxy S4. Samsung just sold 10 million S4s in less than a month, and Apple's hair must be on fire.

Would you like to know what it thinks of all you 10 million users of the new Samsung Galaxy S4 phone? It thinks you are infringing their stupid patents too, meaning, I would imagine, that if it is successful in this case, it will ask for an injunction against the phones you want and bought.

I'll show you what this stupid case is all about and what Apple thinks about you for buying the phone you want to buy and use, which Apple would like to make illegal to buy and use in the US by means of some infuriating software method patents. If you don't see why software shouldn't be patentable subject matter after watching Apple go for Samsung's throat with these patents, I give up.

Not really. My plan is to keep writing until you give up.

read more (5863 words) 381 comments  View Printable Version
Most Recent Post: 06/03 10:04AM by Anonymous

Microsoft v. Motorola, Part 2, Will Be a Jury Trial, Aug. 26 ~pj
Tuesday, May 21 2013 @ 03:32 AM EDT

The next phase of the Microsoft v. Motorola litigation in Seattle will begin on August 26th. It will be a jury trial, as Motorola requested. I hope some of you are nearby and can attend. This will be the part about Microsoft's claims of breach of contract based on its assertion that Motorola violated a RAND contract by its opening bid being allegedly too high.

To describe it is to express the ridiculousness of what has been happening in Seattle. Why do I say that? I'll show you.

read more (9173 words) 244 comments  View Printable Version
Most Recent Post: 05/25 12:01PM by PJ

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