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 CommiDee for Interoperable Systems ECIS: European CommiDee for Interoperable Systems CAIS: Canadian Associaon 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 soKware 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 operaon.” • “Google replicated what was necessary to achieve a degree of interoperability—but no more, taking care… to provide its own implementaons.” 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 wriDen 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 compability 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 determinaon 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 soKware solely to discover the func;onal requirements for compability 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 permiDed, "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 secon 102(b). Jonathan Band policybandwidth • 9th Circuit follows Sega in Sony v. Connecx • Interoperability excep;on of DMCA (sec;on 1201(f))—adopted in 1998—premised on Sega and the unprotectability of interface informaon Jonathan Band policybandwidth Secon 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 CommiDee Report cites Sega and says 1201(f) is "intended to allow legi;mate soKware 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 innovaon in the computer and soKware 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 beDer proof that something is a system, or method of operaon 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 beDer 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 beDer, good reasons exist for freeing it to aract old Lotus customers: to enable the old customers to take advantage of a new advance...." Jonathan Band policybandwidth Thank you! Jonathan Band policybandwidth [email protected] Jonathan Band policybandwidth .