No. 18-956 IN THE GOOGLE LLC, PETITIONER, v. ORACLE AMERICA, INC, RESPONDENT. __________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Federal Circuit __________ BRIEF OF AMICI CURIAE MOZILLA CORP., MAPBOX, A MEDIUM CORP., PATREON, ETSY, INC. AND WIKIMEDIA FOUNDATION IN SUPPORT OF PETITIONER __________ JASON M. SCHULTZ (COUNSEL OF RECORD) NYU TECHNOLOGY LAW AND POLICY CLINIC NYU SCHOOL OF LAW 245 SULLIVAN STREET, 609 NEW YORK, NY 10012 TELEPHONE: (212) 992-7365 [email protected] Counsel for Amici Curiae i TABLE OF CONTENTS INTERESTS OF AMICI CURIAE .............................. 1 SUMMARY OF ARGUMENT ..................................... 3 ARGUMENT ............................................................... 5 I. Introduction ...................................................... 5 II. The Court should grant certiorari to rectify the Federal Circuit’s legal mistakes that threaten to chill innovation and inhibit competition in the software field. ............................................. 9 A. The Federal Circuit’s ruling upends decades of industry practice where software developers have relied on clear legal rules that allow for reimplementation of APIs without fear of copyright liability. ........................... 10 B. The Federal Circuit’s decision increases barriers to entry in the software industry by reducing efficiency and increasing litigation risk. ................................................ 11 III. The Federal Circuit’s decision conflicts with several bedrock copyright precedents that software engineers have relied upon for decades. ........................................................... 15 ii A. The Federal Circuit failed to recognize that transformative uses in the software context can include “new opportunities” to reimplement API SSOs. .............................. 17 B. The Federal Circuit failed to follow this Court’s Campbell case which held that the amount and substantiality of the original work taken need only be “reasonable” in light of the purpose instead of “necessary.” .................................................... 19 CONCLUSION .......................................................... 20 iii TABLE OF AUTHORITIES Cases A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009)......................................... 18 Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) ................................................................ 18 Authors Guild, Inc. v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) ......................................................... 18 Baker v. Selden, 101 U.S. 99 (1879)................ 3, 15, 16 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............................................... 4, 17, 19, 20 Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided court, 516 U.S. 233 (1996) ....................................................... 15 Oracle Am., Inc. v. Google LLC, 750 F.3d 1339 (Fed. Cir. 2014) ................................................ 16, 17 Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018) ................................................ 17, 19 Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) ............................................... 17 Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) ............................... 4, 16, 17, 18 Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000) ....... 4, 16, 17, 18 Statutes 17 U.S.C. § 102(b) ............................................ 3, 15, 16 17 U.S.C. § 107(3) ...................................................... 19 iv Other Authorities Browser Extensions, MDN Web Docs, https://developer.mozilla.org/en-US/Add- ons/WebExtensions ................................................ 10 Byron Deeter, The API-Economy Is Coming and Fast, VentureBeat (Aug. 31, 2013, 2:00 PM) .......... 8 Chris Riley, Mozilla Files FTC Comments Calling for Interoperability to Promote Competition, Mozilla: Open Pol’y & Advoc. (Aug. 21, 2018) ....................................................... 15 Letter from Chris Riley, Dir., Pub. Policy, Mozilla Corp., to Office of the Sec’y, Fed. Trade Comm’n (Aug. 20, 2018) .............................. 15 Matt Murphy & Steve Sloan, The Rise of APIs, TechCrunch (May 21, 2016) .................................... 8 Microsoft Edge Documentation: Extensions, Microsoft Docs, https://docs.microsoft.com/en- us/microsoft-edge/extensions ................................. 10 Microsoft Edge Documentation: Porting an Extension from Chrome to Microsoft Edge, Microsoft Docs, https://docs.microsoft.com/en- us/microsoft-edge/extensions/guides/porting- chrome-extensions ................................................. 10 Venkat Atluri, Miklos Dietz & Nicolaus Henke, Competing in a World of Sectors Without Borders, McKinsey Q. (McKinsey & Co., New York, NY), no. 3, 2017 .............................................. 8 1 INTERESTS OF AMICI CURIAE1 Mozilla Corporation has been a pioneer and advocate for the web for more than a decade. Mozilla creates and promotes open standards that enable innovation and advance the web as a platform for all. Today, hundreds of millions of people worldwide use Mozilla Firefox to discover and experience the web on computers, tablets, and mobile phones. Mapbox is a growing startup founded in Washington, D.C., with more than 500 million users interacting with its technology each month. Despite offering products that compete with Google Maps, Mapbox’s interests in this case concern the bigger picture. Balance and predictability in copyright law are vital to innovation as a whole in the software industry. As a provider of online services, Mapbox is intimately familiar with APIs, providing many such interfaces to its customers. The possibility of copyright protection did not motivate Mapbox to make these interfaces; ease of use for customers did. A Medium Corporation (“Medium”) provides an online publishing platform where people can read, write, and discuss the ideas of the day. Medium's ecosystem connects users with thoughtful, long-form writing by leaders, thinkers, entrepreneurs, artists, 1 Parties’ counsel were given timely notice of amici’s intent to file this brief pursuant to the requirements of Rule 37.2(a). A copy of Petitioner’s letter indicating consent has been filed with the Clerk of this Court. Respondent consented via email to Counsel of Record for Amici. No counsel for either party has had any role in authoring this brief, and no persons other than amici and their counsel have made any monetary contribution to the preparation or submission of this brief. See Rule 37.6. 2 and journalists. About 90 million people read on Medium each month. Patreon is a membership platform making it easy for creators to get paid by their fans. Patreon has sent over $500M to creators since its founding, which is made possible because of the many API- based integrations with its partners to allow creators to offer membership across the internet. Etsy, Inc., and the two million creative entrepreneurs who sell on Etsy, rely on open standards to help make Etsy's marketplace flourish. Etsy’s marketplace connects millions of buyers to sellers from nearly every country in the world for unique, handcrafted and vintage products. Wikimedia Foundation is a non-profit organization based in San Francisco, California, which operates twelve free-knowledge projects on the Internet, including Wikipedia. Wikimedia’s mission is to develop and maintain factual and educational content created and moderated by volunteer contributors, and to provide this content to people around the world free of charge. Additionally, the Foundation writes free and open source software to enable people worldwide to implement wiki-style information exchanges for their own usage. The MediaWiki software that the Foundation develops has been reimplemented by corporations, educational institutions, and government agencies to record and share information. 3 SUMMARY OF ARGUMENT Competition and innovation are two principles at the heart of a healthy internet and the field of software development that fuels it. For decades, software engineers have relied heavily on reuse and reimplementation of functional protocols, such as the Application Programming Interfaces (APIs) in this case, to create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement. In accord with this Court’s ruling in Baker v. Selden, 101 U.S. 99 (1879), and the plain language of 17 U.S.C. § 102(b) (2012), the software industry has flourished utilizing this approach to make internet and software ecosystems more accessible, affordable, diverse, and robust. By reversing this rule in the context of APIs, the Federal Circuit upended decades of industry practice and the well-established expectations of developers, investors, and consumers. API reimplementation is a common theme among developers of all sizes—from those wishing to create entirely new platforms to those wishing to develop on them. The court below heedlessly unraveled this reasonably predictive rule and set of reliable norms that are critical to software coders for understanding what is appropriate to carry over from one project to another and what is not. This is especially true for individual coders, small startups, or nonprofit software projects, who often lack legal counsel or large financial reserves to