| Richard Brunell, Randy Stutz, Taryn Smith
Intellectual Property, Innovation & Entrepreneurship, Competition Policy, Digital Technology
The American Antitrust Institute (AAI) has filed an amicus brief encouraging the U.S. Supreme Court to overturn two Federal Circuit decisions 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.
AAI’s brief argues that certiorari is warranted because the Federal Circuit’s rulings involve issues of exceptional importance. If not overturned, they may slow innovation and competition in software-dependent markets, which are pervasive in the U.S. economy. Copyright on largely functional elements of software that become an industry standard gives a copyright holder anticompetitive power to thwart or tax innovative developments that build upon the elements, and to misappropriate for itself investments by users and developers in learning those elements. In addition, copyright protection of software interfaces tends to prevent new entrants from challenging dominant incumbent platforms protected by network effects.
The brief also argues that certiorari is warranted because the Federal Circuit’s rulings are inconsistent with Supreme Court and other circuit court precedent. First, the Federal Circuit erred by failing to account for interoperability and compatibility considerations in both its copyrightability and fair-use analysis. Second, the court gutted the fair-use doctrine as applied to software by narrowly construing the transformativeness element of fair-use to exclude utilitarian transformations that do not change the expressive content or message of the original work. This construction of transformativeness in the context of computer software is perverse. While the expressive components of software may be protectable under copyright law, software’s primary benefit is functional and utilitarian in nature.
The brief was written by AAI General Counsel Rick Brunell and AAI Associate General Counsel Randy Stutz, with assistance from AAI Research Fellow Taryn Smith. AAI Advisory Board Member Shubha Ghosh, who is the Crandall Melvin Professor of Law and Director of the Technology Commercialization Law Program at Syracuse University College of Law, assisted with AAI’s original Federal Circuit briefs in this case, which are available here and here. AAI’s brief in support of en banc rehearing is also available here.
