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C:\Users\Petermenell\Desktop\BCLT Software Conference\Rise of The Draft: 1-18-17 Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software Peter S. Menell* ABSTRACT After a decade of bruising legal battles, the courts and software industry norms largely resolved the costly war over the scope of copyright protection for computer software. By the mid 1990s, freedom to develop interoperable devices, systems, and software triumphed over broad copyright protection for network features of computer software. Copyright peace prevailed throughout the software industry for the next 15 years. But in 2010, Oracle reignited the smoldering embers of that war when it brought suit alleging that Google infringed copyright in the Java application program interface packages (APIs) . This article updates and expands upon an earlier “epitaph” for copyright protection of network features of computer software to address the second API copyright wave. As background, Part I reviews the first wave of API copyright legislation and litigation. Part II examines the Oracle v. Google litigation, tracing the development of Java and Android and the subsequent (and still ongoing) battle over the scope of copyright protection for APIs. Part III critically analyzes the Oracle v. Google decisions. It explains that copyright law’s fundamental exclusion of protection for functional features dictates that the labeling conventions and packaging of functions within interface specifications generally fall outside of the scope of copyright protection even as implementing code garners thin copyright protection. This interpretation of copyright law comports with fundamental principles channeling protection among the modes of intellectual property. It also serves the larger goals of intellectual property law and competition policy. * Koret Professor of Law and Director of the Berkeley Center for Law & Technology, University of California at Berkeley School of Law. I am grateful to Jonathan Band, Dylan Hadfield- Menell, Mark Lemley, David Nimmer, and Tim Simcoe for comments on an earlier draft. -1- Electronic copy available at: https://ssrn.com/abstract=2893192 Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software TABLE OF CONTENTS I. Copyright Protection for Computer Software 1.0 A. A Personal Account B. Setting the Stage 1. The Intellectual Property Backdrop: Legislation and Legislative History 2. Network Economics 3. The Industrial Backdrop C. The API Copyright War 1. Jurisprudence i. The Early Years ii. The Modern Software Copyright Era 2. Legislative Developments D. The End to the API Copyright War and the Logic of the Intellectual Property System II. Copyright Protection for Computer Software 2.0: The Oracle v. Google Wave A. The Technological and Industrial Context 1. The Java Story i. The Corporate Environment: Sun Microsystems in the 1980s and 1990s ii. Development of Java iii. The Setting Sun 2. Google, the Mobile Computing Revolution, and Development of Android 3. Oracle’s Acquisition of Sun Microsystems B. The Oracle v. Google Litigation 1. Oracle’s Complaint and Pretrial Case Management 2. 2012 Trial 3. Federal Circuit Reversal i. Copyrightability a. Declaring Code b. SSO of the API Packages ii. Fair Use 4. Interlocutory Certiorari Petition 5. 2016 Fair Use Trial i. Opening Arguments ii. Google’s Case in Chief iii. Oracle’s Case in Chief iv. Google’s Rebuttal v. Closing Arguments vi. Jury Vedict -2- Electronic copy available at: https://ssrn.com/abstract=2893192 6. The Road Ahead C. The Current Murky State of API Copyright Protection III. The Law and Economics of API Copyright Protection A. Legal Analysis 1. Overarching Principles 2. Critique of the Federal Circuit Copyrightability Decision i. Misinterpreting Section 102(b) ii. Misreading Ninth Circuit Jurisprudence a. Viability of the Lotus Decision in the Ninth Circuit b. Disregarding the Sega/Sony Decisions c. Resurrecting the Third Circuit’s Apple/Whelan Decisions iii. Conflation of Expressive and Technological “Creativity” iv. Overly Rigid Approach to Limiting Doctrines v. Treating API Design as Variable Expression Rather than Unique Function 3. Proper Legal Frameworks for Analyzing Copyright Protection for Computer Software i. API Design ii. Computer Code iii. Other Software Elements B. Policy Analysis 1. Economic Analysis of Legal Protection for Computer Software i. The Public Goods Problem ii. Network Externalities 2. The Evolution of Software Markets 3. The Optimality of Limited Copyright Protection for Computer Software 4. Impediments to Achieving the Proper Copyright Balance Posed by the Oracle v. Google Litigation Conclusions -3- Electronic copy available at: https://ssrn.com/abstract=2893192 Rise of the API Copyright Dead?: An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software As the great Yogi Berra redundantly said, “It’s like déjà vu all over again.”1 For IP scholars and practitioners of my generation, Oracle Corporation’s lawsuit alleging that Google’s Android mobile platform infringes copyright in the Java application program interface (API) elements has been a stroll down memory lane.2 Or perhaps less nostalgically for those in the software industry, a zombie horror film set in Silicon Valley.3 I cut my teeth analyzing the scope of copyright protection for network and other functional features of computer software. My first foray into intellectual property scholarship examined the interplay among the utilitarian nature of computer programming, the distinctive network economics of software markets, and the role of copyright protection within the larger 1 See YOGI BERRA, THE YOGI BOOK: I DIDN’T SAY EVERYTHING I SAID 9 (1998) (explaining that the déjà vu quotation was inspired by Yankees’ sluggers Mickey Mantle and Roger Maris repeated back-to-back home runs in the early 1960s). 2 As Judge Alsup noted in an early ruling in the Oracle litigation, “[t]he term API is slippery.” See ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON COPYRIGHT CLAIM, p.4 Oracle America, Inc. v. Google Inc. 3:10-cv-03561-WHA (filed Sep. 15, 2011). We will examine the varying and evolving meaning of API throughout this journey. 3 Cf. List of Zombie Films, https://en.wikipedia.org/wiki/List_of_zombie_films. Commentary and news reporting of the Oracle case spoke in dire terms. See, e.g., Steven J. Vaughan-Nichols, Oracle v. Google, and the End of Programming as We Know It, COMPUTERWORLD (May 16, 2016), http://www.computerworld.com/article/3070001/application-development/oracle-v-google-and-t he-end-of-programming-as-we-know-it.html; Klint Finley, The Oracle-Google Case Will Decide the Future of Software, WIRED (May 23, 2016) (opining that “nothing less is at stake [in the outcome of the Oracle v. Google litigation] than the future of programming”), http://www.wired.com/2016/05/oracle-google-case-will-decide-future-software/; Joe Mullin, Second Oracle v. Google Trial Could Lead to Huge Headaches for Developers, arstechnica (May 8, 2016) (reporting that if those who develop APIs “can use copyright law to control how programming is done, there will be a sea change in industry practices. For many developers, especially of open source software, this will be a change for the worse”), http://arstechnica.com/tech-policy/2016/05/round-2-of-oracle-v-google-is-an-unpredictable-trial- over-api-fair-use/. -4- intellectual property system.4 Along with other scholars and practitioners,5 I wrote about and filed amicus briefs in battles over interoperability,6 reverse engineering,7 graphical user 4 See Peter S. Menell, Tailoring Legal Protection for Computer Software, 39 STAN. L. REV. 1329 (1987) (based on my third year paper at Harvard Law School); Peter S. Menell, Analysis of the Scope of Copyright Protection for Application Programs, 41 STAN. L. REV. 1045 (1989); Peter S. Menell, The Challenges of Reforming Intellectual Property Protection for Computer Software, 94 COLUM. L. REV. 2644 (1994); Dennis S. Karjala & Peter S. Menell, Applying Fundamental Copyright Principles to Lotus Development Corp. v. Borland Int’l, Inc., 10 HIGH TECH. L.J. 177 (1995). 5 Professors Dennis Karjala, Jerome Reichman, and Pamela Samuelson, copyright treatise authors Paul Goldstein and David Nimmer, practitioners Jonathan Band, Peter Choy, David Hayes, Michael Jacobs, Gary Reback, and Richard Stern, economists Joseph Farrell and Brian Kahin, and computer scientist Randal Davis were among the early fellow travelers. The network economics research of Professors Joseph Farrell, Michael Katz, Garth Saloner, and Carl Shapiro provided valuable insights. As the first wave of copyright API litigation was building, Professors Karjala, Samuelson, and I convened a broad range of intellectual property scholars, practitioners, software experts, and economists to examine the emerging issues and jurisprudential puzzles. That conference produced a consensus report among the legal academics that helped clarify key software copyright issues and foreshadowed important legal developments. See Donald S. Chisum, Rochelle Cooper Dreyfuss, Paul Goldstein, Robert A. Gorman, Dennis S. Karjala, Edmund W. Kitch, Peter S. Menell, Leo J. Raskind, Jerome H. Reichman & Pamela Samuelson, LaST Frontier Conference on Copyright Protection of Computer Software, 30 JURIMETRICS J. 15 (1989) (hereinafter cited as “LaST Frontier Software Report.” In addition, I advised the U.S. Congress’s Office of Technology Assessment, which produced several useful reports. See U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, FINDING A BALANCE: COMPUTER SOFTWARE, INTELLECTUAL PROPERTY, AND THE CHALLENGE OF TECHNOLOGICAL CHANGE, OTA-TCT-527 (Washington, DC: U.S. Government Printing Office, May 1992), http://ota.fas.org/reports/9215.pdf; U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, COMPUTER SOFTWARE AND INTELLECTUAL PROPERTY–BACKGROUND PAPER, OTA-BP-CIT-61 (Washington, DC: U.S. Government Printing Office, March 1990), http://ota.fas.org/reports/9009.pdf. 6 See Computer Associates Int’l v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240 (3d Cir. 1983). 7 See Sega Enterprises Ltd.
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