AAI Again Urges Federal Circuit to Prevent Copyright Overreach in Software Markets (Oracle v. Google)

Jun 13 2018
Amicus Program

The American Antitrust Institute (AAI) has filed an amicus brief in the Federal Circuit Court of Appeals asking the en banc court to grant rehearing to correct copyright rulings that threaten to undermine competition and innovation in markets that depend on computer software.

Oracle and Google have been engaged in a long-running dispute over whether certain aspects of Google’s Android operating system infringe Oracle’s copyrights.  In developing Android, Google copied some of the “declarations” used in “application programming interfaces,” or API packages, from Java SE, a platform built on the Java open source programming language developed for desktop computers by Sun Microsystems, which was acquired by Oracle in 2010.

API packages are shortcuts that allow computer programmers to build basic functions into their programs without having to write new code from scratch.  The declarations specify the name of the function (or “method”), the inputs used, and the type of output that will be returned.  Google copied the declarations from 37 out of Java SE’s 166 API packages but developed its own “implementing code” for each of the API packages.  

Initially, a jury found that Google had infringed on Oracle’s copyrights, but the district court set aside the verdict upon determining that the API declarations were not copyrightable as a matter of law because they constituted an unprotectable “method of operation” under section 102(b) of the Copyright Act.  On appeal, the Federal Circuit reversed and remanded for a determination of Google’s fair-use defense.  After a jury found Google’s copying was fair use, Oracle appealed again.  The Federal Circuit reversed again, ruling that Google had failed to establish fair use as a matter of law.

The AAI brief contends that the “method of operation” exception and fair-use defense should be applied liberally to copyrights on software interfaces like the API declarations at issue. Otherwise, a copyright owner can hold up locked-in software developers much like the owner of standard essential patents can hold up implementers, thwarting or taxing innovative developments that build upon software elements and misappropriating for itself the investments made by programmers in learning those elements. 

The brief explains that the Federal Circuit panel ignored these concerns by holding that achieving interoperability is irrelevant to copyrightability and by rejecting Google’s interoperability and compatibility arguments in support of its fair-use defense.

The brief also argues that the panel’s fair-use ruling guts the ability of the doctrine to promote innovation and competition in software markets by holding that no matter how innovative new software may be, it does not qualify as “transformative” if there are no changes to the expressive content or message of the elements that are copied.  The brief contends that failing to recognize that a work can be transformative if it expands the utility of copyrighted works is inconsistent with applicable law and would be perverse in the context of computer software whose benefit is primarily functional and utilitarian.

The brief was written by AAI General Counsel Richard Brunell with assistance from AAI’s Associate General Counsel Randy Stutz and AAI summer intern Daniel Hanley.  AAI previously filed an amicus brief on the merits of Oracle’s fair-use appeal.

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PDF icon AAI Rehearing Amicus Brief177.9 KB