Oracle v. Google and Interoperability
Jonathan Band policybandwidth “A page of history is worth a volume of logic.” —Chief Jus ce Roberts, eBay v. MercExchange
“All history is personal.” —James Krohe, Jr.
Jonathan Band policybandwidth Jonathan Band policybandwidth Jonathan Band policybandwidth Jonathan Band policybandwidth Jonathan Band policybandwidth Jonathan Band policybandwidth Jonathan Band policybandwidth ACIS: American Commi ee for Interoperable Systems ECIS: European Commi ee for Interoperable Systems CAIS: Canadian Associa on for Interoperable Systems SISA: Supporters of Interoperable Systems in Australia
Jonathan Band policybandwidth Is this case about interoperability?
Oracle and CAFC say no— • Google inten onally did not want Android to be interoperable with Java, and thus did not copy the complete Java command structure. • Google sought to appeal to Java developers, not achieve interoperability with Java apps, i.e., achieve human interoperability, not so ware operability.
Jonathan Band policybandwidth Is this case about interoperability?
District Court says— • “Interoperability sheds further light on the character of the command structure as a system or method of opera on.” • “Google replicated what was necessary to achieve a degree of interoperability—but no more, taking care… to provide its own implementa ons.”
Jonathan Band policybandwidth Is this case about interoperability?
• District Court noted that Oracle in essence was arguing that Google’s interoperability argument would have been stronger if Google copied more— the structure of all 166 Java API packages—rather than just 37.
Jonathan Band policybandwidth Is this case about interoperability?
• CAFC does not rule that District Court decision about “a degree of interoperability” was clearly erroneous; just states that no app wri en in Java could run on Android, so case not about interoperability.
Jonathan Band policybandwidth Is this case about interoperability?
• Nonetheless, CAFC cited the statement in the Third Circuit decision in Apple v. Franklin that compa bility is: “a commercial and compe ve objec ve which does not enter into the somewhat metaphysical issue of whether par cular ideas and expressions have merged.”
Jonathan Band policybandwidth • On the basis of this statement, the CAFC held that the fact that program elements were necessary for interoperability had no impact in the determina on of their protectability. • Instead, interoperability was relevant to assessing the applicability of the fair use defense.
Jonathan Band policybandwidth • If case is not about interoperability, then these statements about interoperability and protectability are mere dicta. • Nonetheless, dicta can be harmful, so deserves a response.
Jonathan Band policybandwidth Jonathan Band policybandwidth Sega v. Accolade
• The Ninth Circuit found that Accolade reverse engineered “Sega’s so ware solely to discover the func onal requirements for compa bility with the Genesis console—aspects of Sega’s programs that are not protected by copyright. 17 U.S.C. § 102(b).”
Jonathan Band policybandwidth Sega v. Accolade
• The Ninth Circuit explained that if reverse engineering were not permi ed, "the owner of the copyright gains a de facto monopoly over the func onal aspects of his work— aspects that were expressly denied copyright protec on by Congress. 17 U.S.C. §102(b)."
Jonathan Band policybandwidth Sega v. Accolade
• CAFC required to apply 9th Circuit law. • CAFC says interoperability is relevant to fair use because Sega was a fair use case. • But CAFC overlooked the fact that Sega’s fair use decision was predicated on the holding that program elements necessary for interoperability were not protected per sec on 102(b).
Jonathan Band policybandwidth • 9th Circuit follows Sega in Sony v. Connec x • Interoperability excep on of DMCA (sec on 1201(f))—adopted in 1998—premised on Sega and the unprotectability of interface informa on
Jonathan Band policybandwidth Sec on 1201(f) • A person "may circumvent a technological measure ... for the sole purpose of iden fying and analyzing those elements of the program that are necessary to achieve interoperability." • Senate Judiciary Commi ee Report cites Sega and says 1201(f) is "intended to allow legi mate so ware developers to con nue engaging in certain ac vi es for the purpose of achieving interoperability...." • "The purpose of this sec on is to foster compe on and innova on in the computer and so ware industry."
Jonathan Band policybandwidth Human Interoperability • CAFC says Google wanted to “capitalize” on community of developers “trained and experienced in” and “accustomed to using the Java packages.” • What could be be er proof that something is a system, or method of opera on than if a person can become “trained,” “experienced,” or “accustomed” to using it in the course of developing new works?
Jonathan Band policybandwidth Human Interoperability
Judge Boudin in Lotus v. Borland: "if a be er spreadsheet comes along, it is hard to see why customers who have learned the Lotus menu and devised macros for it should remain cap ves of Lotus because of an investment in learning made by the users and not by Lotus. Lotus has already reaped a substan al reward for being first; assuming that the Borland program is now be er, good reasons exist for freeing it to a ract old Lotus customers: to enable the old customers to take advantage of a new advance...."
Jonathan Band policybandwidth Thank you!
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