Appeals Court Says It's Okay To Copyright An Entire Style Of Music

from the this-is-really,-really-bad dept

Oh boy. We had hoped that the 9th Circuit might bring some sanity back to the music copyright world by overturning the awful "Blurred Lines" ruling that has already created a massive chilling effect among musicians... but no such luck. In a ruling released earlier this morning, the 9th Circuit largely affirmed the lower court ruling that said that Pharrell and Robin Thicke infringed on Marvin Gaye's copyright by writing a song, "Blurred Lines," that was clearly inspired by Gaye's "Got To Give It Up."

No one has denied that the songs had similar "feels" but "feeling" is not copyrightable subject matter. The compositions of the two songs were clearly different, and the similarity in feel was, quite obviously, paying homage to the earlier work, rather than "copying" it. For what it's worth, there appears to be at least some hesitation on the part of the majority ruling, recognizing that this ruling could create a huge mess in the music world, so it tries (and mostly fails) to insist that this ruling is on narrow grounds, specific to this case (and much of it on procedural reasons, which is a kind way of suggesting that the lawyers for Pharrell and Thicke fucked up royally). As the court summarizes:

We have decided this case on narrow grounds. Our conclusions turn on the procedural posture of the case, which requires us to review the relevant issues under deferential standards of review.

Throughout the majority ruling, you see things like the following:

We are bound by the “‘limited nature of our appellate function’ in reviewing the district court’s denial of a motion for a new trial.” Lam, 869 F.3d at 1084 (quoting Kode, 596 F.3d at 612). So long as “there was some ‘reasonable basis’ for the jury’s verdict,” we will not reverse the district court’s denial of a motion for a new trial. Id. (quoting Molski, 481 F.3d at 729). “[W]here the basis of a Rule 59 ruling is that the verdict is not against the weight of the evidence, the district court’s denial of a Rule 59 motion is virtually unassailable.” Id. (quoting Kode, 596 F.3d at 612). When that is the case, we reverse “only when there is an absolute absence of evidence to support the jury’s verdict.” Id. (quoting Kode, 596 F.3d at 612). “It is not the courts’ place to substitute our evaluations for those of the jurors.” Union Oil Co. of Cal. v. Terrible Herbst, Inc., 331 F.3d 735, 743 (9th Cir. 2003). Of note, we are “reluctant to reverse jury verdicts in music cases” on appeal, “[g]iven the difficulty of proving access and substantial similarity.” 17 Three Boys Music, 212 F.3d at 481.

The Thicke Parties face significant, if not unsurmountable, hurdles. First, we are generally reluctant to disturb the trier of fact’s findings, and have made clear that “[w]e will not second-guess the jury’s application of the intrinsic test.” Id. at 485. Second, our review is necessarily deferential where, as here, the district court, in denying the Rule 59 motion, concluded that the verdict was not against the clear weight of the evidence. Finell testified that nearly every bar of “Blurred Lines” contains an area of similarity to “Got To Give It Up.” Even setting aside the three elements that trouble the Thicke Parties (“Theme X,” the bass line, and the keyboard parts), Finell and Dr. Monson testified to multiple other areas of extrinsic similarity, including the songs’ signature phrases, hooks, bass melodies, word painting, the placement of the rap and “parlando” sections, and structural similarities on a sectional and phrasing level. Thus, we cannot say that there was an absolute absence of evidence supporting the jury’s verdict.

That's just one example of many where the court more or less says "our hands are tied to review the jury's decision."

The whole thing is a mess, though, and is going to create lots of problems. And, honestly, I don't think I can do a better job than the one dissenting judge, Judge Jacqueline Nguyen, who seems to fully understand the issues at play and what a disaster this ruling is.

The majority allows the Gayes to accomplish what no one has before: copyright a musical style. “Blurred Lines” and “Got to Give It Up” are not objectively similar. They differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.

Judge Nguyen isn't pulling any punches.

The majority, like the district court, presents this case as a battle of the experts in which the jury simply credited one expert’s factual assertions over another’s. To the contrary, there were no material factual disputes at trial. Finell testified about certain similarities between the deposit copy of the “Got to Give It Up” lead sheet and “Blurred Lines.” Pharrell Williams and Robin Thicke don’t contest the existence of these similarities. Rather, they argue that these similarities are insufficient to support a finding of substantial similarity as a matter of law. The majority fails to engage with this argument.

Finell identified a few superficial similarities at the “cell” level by focusing on individual musical elements, such as rhythm or pitch, entirely out of context. Most of these “short . . . pattern[s]” weren’t themselves protectable by copyright, and Finell ignored both the other elements with which they appeared and their overall placement in each of the songs. Her analysis is the equivalent of finding substantial similarity between two pointillist paintings because both have a few flecks of similarly colored paint. A comparison of the deposit copy of “Got to Give it Up” and “Blurred Lines” under the extrinsic test leads to only one conclusion. Williams and Thicke were entitled to judgment as a matter of law.

Also, I'm glad to see a judge recognize this point (even if it's in a dissent) that many in the legacy copyright industries deny (even though it's actually to their benefit):

The purpose of copyright law is to ensure a robust public domain of creative works.... While the Constitution authorizes Congress to grant authors monopoly privileges on the commercial exploitation of their output, see U.S. Const. art. I, § 8, cl. 8, this “special reward” is primarily designed to motivate authors’ creative activity and thereby “allow the public access to the products of their genius.”... Accordingly, copyrights are limited in both time and scope. See U.S. Const. art. I, § 8, cl. 8 (providing copyright protection only “for limited Times”); Sony Corp., 464 U.S. at 432 (“This protection has never accorded the copyright owner complete control over all possible uses of his work.”); see also Berlin v. E.C. Publ’ns, Inc., 329 F.2d 541, 544 (2d Cir. 1964) (“[C]ourts in passing upon particular claims of infringement must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.”).

Judge Nguyen also points out a key point that you would hope that any judge hearing a copyright case would actually understand: copyright only covers the actual author's expression (and only the new and unique parts of it -- and only in limited ways). But that's not what the ruling in this case says:

An important limitation on copyright protection is that it covers only an author’s expression—as opposed to the idea underlying that expression.... Copyright “encourages others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349–50 (1991) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556–57 (1985))....

[....]

Such accommodations are necessary because “in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting Emerson v. Davies, 8 F. Cas. 615, 619 (C.C.D. Mass. 1845) (Story, J.)). Every work of art “borrows, and must necessarily borrow, and use much which was well known and used before.” Id. (quoting Emerson, 8 F. Cas. at 619); see 1 Melville D. Nimmer & David Nimmer, Nimmer on Copyright § 2.05[B] (rev. ed. 2017) (“In the field of popular songs, many, if not most, compositions bear some similarity to prior songs.”). But for the freedom to borrow others’ ideas and express them in new ways, artists would simply cease producing new works—to society’s great detriment.

And while the dissent points out that two songs may share the same "groove," that's not nearly enough for it to be copyright infringement.

“Blurred Lines” clearly shares the same “groove” or musical genre as “Got to Give It Up,” which everyone agrees is an unprotectable idea. See, e.g., 2 William F. Patry, Patry on Copyright § 4:14 (2017) (“[T]here is no protection for a communal style . . . .”). But what the majority overlooks is that two works in the same genre must share at least some protectable expression in order to run afoul of copyright law.

And, incredibly, as Judge Nguyen points out, the majority fails to even attempt to say what copyrightable expression was duplicated in Blurred Lines:

The majority doesn’t explain what elements are protectable in “Got to Give It Up,” which is surprising given that our review of this issue is de novo. See Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir. 2010). But by affirming the jury’s verdict, the majority implicitly draws the line between protectable and unprotectable expression “so broadly that future authors, composers and artists will find a diminished store of ideas on which to build their works.” Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1225 (11th Cir. 2008) (quoting Meade v. United States, 27 Fed. Cl. 367, 372 (Fed. Cl. 1992)).

Worse still, the majority invokes the oft-criticized “inverse ratio” rule to suggest that the Gayes faced a fairly low bar in showing substantial similarity just because Williams and Thicke conceded access to “Got to Give It Up.”... The issue, however, isn’t whether Williams and Thicke copied “Got to Give It Up”—there’s plenty of evidence they were attempting to evoke Marvin Gaye’s style. Rather, the issue is whether they took too much. Copying in and of itself “is not conclusive of infringement. Some copying is permitted.” ... Copying will only have legal consequences if it “has been done to an unfair extent.” ... In determining liability for copyright infringement, the critical and ultimate inquiry is whether “the copying is substantial.” Id.

And of course, what has been "copied" to create the "groove" is not subject to copyright protection. Which you would think would be important in court. But the majority didn't bother.

The Gayes don’t contend that every aspect of “Blurred Lines” infringes “Got to Give It Up.” Rather, they identify only a few features that are present in both works. These features, however, aren’t individually protectable. And when considered in the works as a whole, these similarities aren’t even perceptible, let alone substantial.

Judge Nguyen then goes through, in fairly great detail, to explain (including with sheet music examples) why the copyright-protectable elements of the composition have not been copied here. This is the kind of analysis that should have been done before, and should have happened at the lower court. But it did not.

Judge Nguyen then points out that ruling this way on narrow procedural grounds is also nonsense.

The majority insists that the verdict is supported by the evidence but tellingly refuses to explain what that evidence is. Instead, it defends its decision by arguing that a contrary result is impossible due to Williams and Thicke’s purported procedural missteps.... While the procedural mechanism for granting relief is beside the point given the majority’s holding, there’s no such obstacle here.

I agree that we normally are not at liberty to review the district court’s denial of summary judgment after a full trial on the merits.... This rule makes eminent sense. Once a trial has concluded, any issues relating to the merits of the parties’ dispute “should be determined by the trial record, not the pleadings nor the summary judgment record.” ... However, there is little difference between reviewing a summary judgment ruling and a jury verdict other than the source of the factual record... and here there are no material factual disputes. A completed trial does not prevent us from reviewing the denial of summary judgment “where the district court made an error of law that, if not made, would have required the district court to grant the motion.”

Nguyen really hits back on the majority for suggesting that this is just a dispute between competing experts over what was similar and what was not. As she rightly points out, that's a question that comes up only after you've shown that the elements being copied are actually copyrightable subject matter. And the lower court totally failed to do that, meaning this is an issue of law, not one of disputed facts. The law says these elements aren't protected. And that's important, but the court ignored it entirely.

No one disputes that the two works share certain melodic snippets and other compositional elements that Finell identified. The only dispute regarding these similarities is their legal import—are the elements protectable, and are the similarities substantial enough to support liability for infringement? ...

By characterizing these questions as a factual dispute among experts, the majority lays bare its misconception about the purpose of expert testimony in music infringement cases. As with any expert witness, a musicologist can’t opine on legal conclusions, including the ultimate question here—substantial similarity.... Her role is to identify similarities between the two works, describe their nature, and explain whether they are “quantitatively or qualitatively significant in relation to the composition as a whole,”.... The value of such testimony is to assist jurors who are unfamiliar with musical notation in comparing two pieces of sheet music for extrinsic similarity in the same way that they would compare two textual works.

In other words, the lower court, and the majority, both got so caught up in the Gayes' "expert" talking about the similarities of "the groove" that they forgot to even bother to check if a "groove" is copyrightable.

Finally, Nguyen points out that this disaster is going to haunt lots of people -- likely including the Gaye Estate, given how much of Gaye's own work was built on those who came before him:

The Gayes, no doubt, are pleased by this outcome. They shouldn’t be. They own copyrights in many musical works, each of which (including “Got to Give It Up”) now potentially infringes the copyright of any famous song that preceded it.

Be careful what you wish for. You just might get it. And then get sued on the same grounds. It seems quite likely that we'll now see a flood of similar lawsuits (some have started already, but this will open the floodgates).

Filed Under: 9th circuit, blurred lines, copyright, copyrightable subject matter, grooves, marvin gaye, music, pharrell, robin thicke

Stakes Are High In Oracle v. Google, But The Public Has Already Lost Big

from the there's-more-to-this-than-fair-use dept

Attorneys for the Oracle and Google companies presented opening statements this week in a high-stakes copyright case about the use of application-programming interfaces, or APIs. As Oracle eagerly noted, there are potentially billions of dollars on the line; accordingly, each side has brought "world-class attorneys," as Judge William Alsup noted to the jury. And while each company would prefer to spend their money elsewhere, these are businesses that can afford to spend years and untold resources in the courtroom.

Unfortunately, the same can't be said for the overwhelming majority of developers in the computer industry, whether they're hobbyist free software creators or even large companies. Regardless of the outcome of this fair use case, the fact that it proceeded to this stage at all casts a long legal shadow over the entire world of software development.

At issue is Google's use in its Android mobile operating system of Java API labels -- a category of code Google (and EFF) previously argued was not eligible for copyright. Judge Alsup, who demonstrated some proficiency with programming Java in the first leg of the case, came to the same conclusion. But then the Federal Circuit reversed that position two years ago, and when the Supreme Court declined to hear the issue, there was nowhere left to appeal. With this new decision on copyrightability handed down from above, Google and Oracle now proceed to litigate the question of whether Android's inclusion of the labels is a fair use.

If Google wins at this stage, it's tempting to declare the nightmare of that Federal Circuit opinion behind us. After all, fair use is a right -- and even if API labels are subject to copyright restrictions, those restrictions are not absolute. Google prevailing on fair use grounds would set a good precedent for the next developer of API-compatible software to argue that their use too is fair.

Tempting, but not quite right. After all, there is a real cost to defending fair use. It takes time, money, lawyers, and thanks to the outrageous penalties associated with copyright infringement, comes with a substantial risk. Beyond all those known costs, wedging a layer of copyright permissions culture into API compatibility comes with serious unknowable costs, too: how many developers will abandon ideas for competitive software because the legal risks are too great?

There's a reason people say that if you love fair use, you should give it a day off once in a while. Even the vital doctrine of fair use shouldn't be the only outlet for free speech. In many areas, an absence of copyright, or the use of permissive public licenses, can foster more creativity than fair use alone could. Sadly for now, in the world of software development it's the paradigm we have.

Reposted from the Electronic Frontier Foundation's Deeplinks Blog

Filed Under: api, apis, copyright, copyrightable subject matter, fair use, java, software
Companies: google, oracle

Yes, The Appeals Court Got Basically Everything Wrong In Deciding API's Are Covered By Copyright

from the fundamentally-not-understanding-that-apis-are-not-software dept

Copyright expert and professor Pam Samuelson, one of the most respected scholars of copyright law, has published a short paper explaining what she calls the "three fundamental flaws in CAFC's Oracle v. Google decision." As you may recall, that ruling was a complete disaster, overturning a lower court decision that noted that application programming interfaces (APIs) are not copyrightable, because Section 102 of the Copyright Act pretty clearly says that:

In 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.

But CAFC got super confused, and basically ignored 102 while misunderstanding what an API actually is. After the White House itself got confused, the Supreme Court refused to hear the case. This means that the CAFC ruling stays in place, despite it being at odds with lots of other courts. And this might not be a huge problem, since most copyright cases won't go to CAFC. The only reason the Oracle case went to CAFC was because it started out as a patent case, and CAFC gets all patent appeals, even if the appeal has nothing to do with patents. Except... of course, now there's incentive to toss in a bogus patent complaint along with a questionable "interface copyright" complaint just to get it into CAFC's jurisdiction.

Samuelson's paper is a good read (and we'll get to it), but I'd actually argue it's a bit too tame, and leaves out the really fundamental flaw in the CAFC ruling and in the White House brief: these non-programmers don't realize that an API is not software. Almost all of the mistakes stem from this simple fact. They assume that an API is software. And this is highlighted very clearly in the CAFC ruling where they quote Pam Samuelson out of context and then completely miss what she's actually saying. Here's from that ruling:

Google argues that “[a]fter Sega, developers could no longer hope to protect [software] interfaces by copyright . . . Sega signaled that the only reliable means for protecting the functional requirements for achieving interoperability was by patenting them.” ... (quoting Pamela Samuelson, Are Patents on Interfaces Impeding Interoperability...). And, Google relies heavily on articles written by Professor Pamela Samuelson, who has argued that “it would be best for a commission of computer program experts to draft a new form of intellectual property law for machine-readable programs.” Pamela Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form.... Professor Samuelson has more recently argued that “Altai and Sega contributed to the eventual shift away from claims of copyright in program interfaces and toward reliance on patent protection. Patent protection also became more plausible and attractive as the courts became more receptive to software patents.”...

Although Google, and the authority on which it relies, seem to suggest that software is or should be entitled to protection only under patent law—not copyright law— several commentators have recently argued the exact opposite. See Technology Quarterly, Stalking Trolls, ECONOMIST, Mar. 8, 2014, http://www.economist. com/news/technology-quarterly/21598321-intellectualproperty- after-being-blamed-stymying-innovationamerica- vague (“[M]any innovators have argued that the electronics and software industries would flourish if companies trying to bring new technology (software innovations included) to market did not have to worry about being sued for infringing thousands of absurd patents at every turn. A perfectly adequate means of protecting and rewarding software developers for their ingenuity has existed for over 300 years. It is called copyright.”); Timothy B. Lee, Will the Supreme Court save us from software patents?, WASH. POST, Feb. 26, 2014, 1:13 PM, http://www.washingtonpost.com/blogs/the-switch/wp/ 2014/02/26/will-the-supreme-court-save-us-from-softwarepatents/ (“If you write a book or a song, you can get copyright protection for it. If you invent a new pill or a better mousetrap, you can get a patent on it. But for the last two decades, software has had the distinction of being potentially eligible for both copyright and patent protection. Critics say that’s a mistake. They argue that the complex and expensive patent system is a terrible fit for the fast-moving software industry. And they argue that patent protection is unnecessary because software innovators already have copyright protection available.”).

But this is just wrong. If you actually look at Samuelson's quotes, she's talking about interfaces not software. Notice in every quote she is not actually talking about the software itself, but "interfaces," "functional requirements" and "program interfaces." The absolute worst is the first quote, where Samuelson writes "interfaces" and CAFC inserts a "[software]" to imply that it's the same thing. It's not. The two paragraphs are not actually at odds. It is entirely reasonable to argue that interfaces shouldn't be protected by copyright (thanks to Section 102) and that software should not be patentable.

It only looks like they're disagreeing if you're confused and you think that an API is the same thing as the software itself. But that's like saying a recipe is the same as a meal or that a dictionary is the same as a novel that uses those words. It's not the same thing.

So while Samuelson's new paper is great, I still feel like she holds back on that key issue, which is so just blatantly wrong, and seems to underline why non-technical people (including the judges in this case) got so confused. Of course software is copyrightable. The argument is over whether or not an API necessary for interoperability is copyrightable. And, as Samuelson's paper notes, it had been widely accepted prior to the CAFC ruling that the answer is no because they're "procedures, processes, systems and methods" under Section 102.

A second flaw was the CAFC’s overbroad view of the extent to which the “structure, sequence and organization” (SSO) of computer programs are protectable by copyright law. During the 1980s, some courts regarded program SSO as having a broad scope of protection under copyright law. But in the last two and a half decades, courts and commentators have recognized that the SSO concept is too imprecise and misleading to be useful in software copyright cases. The SSO concept does not help courts make appropriate distinctions between protectable and unprotectable structural elements of programs. Procedures, processes, systems, and methods of operation, almost by definition, contribute to the SSO of programs that embody them. However, this does not make those elements protectable by copyright. The design of many program structures, including APIs, is inherently functional and aimed at achieving technical goals of efficiency. This disqualifies them as protectable expression under U.S. law.

Anyway, the rest of the paper is a good read, and hopefully it means that eventually this issue will get back to the Supreme Court -- and one hopes, at that time, someone can at least get through to them that an API is not software.

Filed Under: api, apis, cafc, copyright, copyrightable subject matter, pam samuelson, software
Companies: google, oracle

Computer Scientists, Legal Experts Explain To Supreme Court Why APIs Are Not Copyrightable

from the let's-try-this-again dept

Back in May, the appeals court for the Federal Circuit (CAFC) enhanced its reputation of consistently getting basic patent law wrong by deciding to get copyright law wrong too, in declaring that APIs were copyrightable subject matter, in the Oracle v. Google lawsuit. As we explained at the time, the court appeared to make some rather serious fundamental errors, not understanding the difference between software and interfaces (and worse, totally misquoting some experts). Last month, Google asked the Supreme Court to review the case. On Friday, a bunch of interesting amicus briefs were filed, asking the Supreme Court to fix the CAFC's big mistakes.

Perhaps the most interesting was put together by the EFF, and was signed by 77 computer scientists, including many of the most well-known and most respected computer scientists around, including Hal Abelson, Brian Behlendorf, Ward Cunningham, Peter Deutsch, David Dill, Dave Farber, Ed Felten, Mitch Kapor, Alan Kay, Brian Kernighan, Guido van Rossum, Avi Rubin, Bruce Schneier and Bjarne Stroustrup among others. There are a lot more, obviously, but those were just a few of the names that stood out.

The key point made in the filing is that this upsets decades of what was considered a settled matter in computer science, while highlighting how much of computer history was built off of the recognition of non-copyrightable APIs, allowing for the creation of interoperable systems, much of which drove the early computer revolution. Here's the summary from the brief:

For decades, computer scientists have relied on the open nature of APIs to enable rapid innovation in computer technology. For decades, circuit courts have supported that reliance, concluding that Section 102(b) of the Copyright Act protects a programmer’s source code as creative expression, but does not cover the processes, systems, and methods of operation that code may employ to interface with other software. The district court correctly followed that precedent and rejected Oracle’s claim that the Java APIs could be copyrightable. Sadly, the Federal Circuit chose to split with the other circuits and reverse the district court. That decision upended decades of industry practice and threatens the basic principles upon which our technology sector was built.

Not surprisingly, the Federal Circuit’s decision has been harshly criticized. As many commentators have noted, if the Federal Circuit’s view had been accepted at the birth of modern computing, many important technologies would never have existed, and/or succeeded. For example, the widespread availability of diverse, cheap, and customizable personal computers owes its existence to the lack of copyright on the specification for IBM’s Basic Input/Output System (BIOS) for the PC. And open APIs were essential to many modern computing developments, including those of operating systems such as UNIX, programming languages such as “C,” the Internet’s network protocols, and cloud computing.

Today, open, uncopyrightable APIs continue to spur the creation and adoption of new technologies. When programmers can freely reimplement or reverse engineer an API without obtaining a costly license or risking a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to develop. Moreover, compatible APIs help enable people to switch platforms and services freely, and to find software that meets their needs regardless of what browser or operating system they use. Without the compatibility enabled by the open nature of APIs, consumers could be forced to leave their data and programs behind when they switch to a new service.

The freedom to reimplement APIs also helps developers rescue “orphan” software or data—systems that are no longer supported by their creators. When a company stops supporting a computer platform or service, the ability to freely reimplement APIs protects the communities that rely on that software. Government entities and non-profi ts are especially susceptible to the orphan programs problem as they often cannot afford to upgrade and are left using legacy technologies for years or decades.

Next up, is a filing from CCIA written in part by Jonathan Band, which is noteworthy in part because Band co-wrote the book on copyright and interfaces (first published nearly 20 years ago), explaining how interfaces aren't copyrightable and why that simple fact was responsible for so much of the computer revolution. This filing similarly notes how much of history was driven by interoperability, but also digs deeper into what a mess it would be if the CAFC's view was determined to be correct:

If a company could exercise proprietary control over the interface specifications implemented by its products, that company could determine which products made by other firms – if any – would be compatible with its software. And should that company have a dominant position in a particular market, it could use its control over compatibility to expand its dominant position into adjacent markets. Moreover, such authority would extend the rights under copyright beyond what is necessary to protect the original expressive elements that have traditionally been offered protection under American copyright law, and it would override limitations on copyright crafted to protect the public good.

Such a broad monopoly would have serious implications for consumer welfare. In the absence of competition during the effective lifespan of the product, the first developer would have little incentive to develop more innovative and less costly products. These negative consequences would be compounded by the fact that the personal computer revolution and the emergence of the Internet have produced an overwhelming need for interconnection between different elements of computer systems. Prohibiting competitors from accessing de facto standard interface specifications would lock users into a particular operating system or network software environment, and would inhibit the transfer of data between users with different computing environments.... The Petition shows a host of real-world problems and economic harms that would result if API copyright could foreclose compatibility, including the cost of rewriting interface code formerly understood to be unprotected, and lock-in costs resulting from consumers’ inability to switch operating systems or cloud computing providers.... Lock-in would deter competition, investment, and innovation in the burgeoning cloud computing industry, which is known to be sensitive to policy changes in copyright.

In short, in the computer industry, overly broad intellectual property protection directly restricts competition and innovation. This was the status quo in the computing environment in the 1970s. Once a buyer purchased a computer system, the buyer was essentially locked-in to that system: the system was incompatible with products manufactured by other companies, and conversion costs were high. Although “locking in” was extremely profitable for dominant vendors such as IBM, competitors and users suffered from high prices, indifferent service, limited choice, and slow innovation.

CCIA also reminds the Supreme Court that Oracle (and Sun) not to long ago were among those who fought strongly for the position that interfaces were not copyrightable and that interoperability should be allowed. The filing notes that Sun and Oracle fought hard against parts of the DMCA when it was introduced that would have blocked interoperability. For example:

In a 1998 press release, Michael Morris, then Vice President and General Counsel of Sun Microsystems, argued that the DMCA as introduced would “impose[ ] a new and unnecessary layer of restraint on lawful access to those unprotected elements of computer programs that are necessary to achieve interoperability, thus placing developers of interoperable products at the mercy of proprietary vendors.”

That resulted in changes to the DMCA to make sure that interoperability was allowed. And yet, now, Oracle (via its Sun acquisition) is trying to argue that the exact opposite is true.

Finally, Public Knowledge also submitted an interesting brief which lays out the ridiculous situation we're in today with an analogy using amusingly named stand-ins and products:

Say that Delphi Corporation manufactures screws. It hits upon a new design for a screw socket—the interface between screw and screwdriver—that is more efficient than the prevailing Phillips and flathead insertions. Capitalizing on this novel idea, Delphi manufactures a line of screws using this socket, which it calls Sumatra. The Sumatra socket is wildly popular. New lines of screwdrivers are made for the Sumatra socket. Engineering textbooks praise the Sumatra design. Wood-workers teach their sons and daughters to use it. And competing screw manufacturer Zillion decides to make its own screws compatible with the Sumatra socket. The screws otherwise differ, but use the Sumatra socket so that woodworkers need not purchase new tools.

Only then does Delphi declare the Sumatra socket a sculptural work, suing Zillion for copyright infringement.

Rather than focusing on more recent rulings concerning software, the Public Knowledge brief goes all the way back to Baker v. Selden from 1879, which found that you couldn't copyright a set of blank ledger forms.

Oracle repeatedly points to the “intricate web of connections" of the Java API, in an effort to suggest that its structure, sequence and organization of the API is copyrightable. Oracle Brief, supra, at 26. But so too can uncopyrightable blank forms constitute an intricate web of connections. Selden’s book included 19 forms and 24 pages of demonstrative explanation designed “to compress almost innumerable accounts under a few specific, intelligible heads.” .... For either blank forms or APIs, intricacy does not confer copyrightability.

Given that an API is factually on par with a blank form, it is unsurprising that the reasoning of Baker directly applies to the copyrightability of APIs. Baker held that blank ledger forms, including the “ruled lines and headings,” could not properly be the subject of copyright.... The Court said that copyright cannot cover “systems” or an “art”; the Java API is certainly a system, one that teaches the “art” of using the Java system....

The Java API is on all fours with the blank forms of Baker, both factually and legally. Since copying of the blank forms in Baker was permissible, copying of the Java API is too.

It's also nice to see the Public Knowledge brief call out the simple factual errors in the CAFC ruling (some of which we pointed out in our post at the time):

... the Federal Circuit misunderstands arguments that interfaces are more properly protected by patent law than copyright law... Google, several amici below, and the district court merely proffered the unremarkable argument that functional elements should be excluded from copyright law by § 102(b) and the idea/expression dichotomy... But the Federal Circuit mistook them to mean that software may only be patentable or copyrightable, but not both. The Federal Circuit further assumed that criticisms of software patents equate to suggestions to expand copyrightable subject matter to cover interfaces.

These propositions are flawed. First, the Federal Circuit t neglects that there is matter outside the realm of both copyright and patent; the court apparently supposed that every element of a software program must fit into one or the other. Second, the Federal Circuit fails to differentiate the discrete elements of a given software product that may be copyrightable and those that may be patentable, instead lumping those elements together into a single entity. Third, the Federal Circuit conflates programming interfaces with computer programs generally.

Hopefully, these and other arguments convince the Supreme Court of just how wrong the CAFC was in its ruling. Recently, the Supreme Court has been pretty bad on copyright cases, while generally good on patent cases, so it's always a little nerve-wracking when copyright cases get there. The one bit of good news is that the Supreme Court has clearly found itself regularly questioning CAFC's interpretation of laws, since most of those patent cases come up via CAFC. The only reason this copyright case went to CAFC was because it started out as a patent case, though the patent issues got tossed out early on.

Filed Under: api, apis, computer scientists, copyright, copyrightable subject matter, functions, interfaces, software
Companies: ccia, eff, google, oracle, public knowledge