Thirty-two amicus briefs were filed with the Supreme Court in support of Oracle in Google v. Oracle. Among these was one written by Steven Tepp, whose credentials include former Senior Counsel at the Copyright Office, and whose brief was signed by several other copyright experts from both the public and private sectors.
On February 21, Jonathan Band, on behalf of the Computer Communication Industry Association (CCIA), wrote a blog response under the thesis that many of Oracle’s amici have no “connection to the technology industry or any understanding of the interoperability issues at play in this case.” Notwithstanding the fact that of the list of amici includes SAS Institute, Synopsis, Dolby Labs, MathWorks, former Sun CEO Scott McNealy, and former EMC CEO Joe Tucci, among others, Band seems to imply that the other amici—all experts in copyright law—are wrong on the copyright matters because they are independent from the software industry. Given that Band devoted extra attention to Tepp’s brief, and Tepp does not have a blogging platform (like Band’s well-funded Project DISCO), I am happy to publish his response here as a guest post.
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I had the honor and privilege of authoring an amicus brief to the Supreme Court in support of Oracle in the pending copyright infringement suit against Google. It is a strong brief that makes a firm case on the law, as well as on policy grounds, that Google’s copying of over 11,000 lines of computer code for use in competition with the copyright owner violates the U.S. Copyright Act. I am proud that prominent attorneys who have worked in academia, senior positions in federal administrative agencies and Congress, and private practice, supported my brief as co-signers.
One of the sections of my brief pointed out to the Court how the arguments of the pro-Google brief filed by CCIA and the Internet Association had incorrectly relied on the Ninth Circuit decision in Sega v. Accolade as precedent for why Google’s copying was “fair use” under the Copyright Act. The author of the CCIA brief, Jonathan Band, has since written a blog in which he summarizes and critiques the thirty-two pro-Oracle briefs, including mine. In it, he doubles down on his reliance on Sega, so I wanted to set the record straight.
The main thrust of Band’s arguments is that the Sega decision stands for the proposition that copying code for the purposes of achieving “interoperability” is fair use under the Copyright Act. And he then also cites to instances where the Sega policy was followed by Congress, the Copyright Office, and in some foreign laws. There are two fatal flaws with this argument.
First, as a matter of law the Sega decision did not endorse a broad, vague, or general notion of “interoperability.” That court was very clear that Accolade’s copying of Sega’s operating code was only to study it to learn how to make applications that would work on Sega’s platform. Accolade’s software did not include any of Sega’s code in its final product, did not compete with Sega’s platform, and did not avoid any customary licensing fees. In the case now before the Supreme Court, Google admits it copied Oracle’s code into its competing product and refused to pay the usual licensing fees.
Second, as a matter of the undisputed facts in this case, the Android platform is NOT interoperable with other Java-based platforms. As the brief of the United States Government points out, Google “designed its Android platform in a manner that made it incompatible with [Oracle’s] Java platform.” (emphasis in original).
Both on the facts and the law, Google is not entitled to rely on Sega or similarly circumscribed rules as precedent or justification for its appropriation of Oracle’s code.
Nonetheless, Band tries to garner support from a Copyright Office report passage that “in many cases, copying of appropriately limited amounts of code from one software-enabled product into a competitive one for purposes of compatibility and interoperability should also be fair use.” It is curious that Band looks to the Copyright Office for support in this particular case. The names of three of the top lawyers at the Copyright Office appear on the U.S. Government brief in support of Oracle, including one of the people who worked on the report from which Band quotes.
The U.S. Government brief responds to the exact line Band quotes, “Contrary to petitioner’s [Google’s] contention, the Copyright Office has never endorsed the kind of copying in which petitioner engaged…enabling developers for Android to draw on their preexisting knowledge of commands used on the Java platform does not constitute ‘interoperability’ as that term is defined in the Copyright Act or discussed in any judicial decision or Copyright Office publication.”
I argued to the Supreme Court that a ruling of fair use in this case would violate sixteen international agreements to which the United States is a party. Specifically, such a ruling would be inconsistent with the globally accepted “three-step test” for allowable exceptions to copyright, which appears in all those agreements and treaties. Band’s blog goes beyond his brief to attack this analysis, claiming that only legislative enactments are subject to scrutiny under the three-step test. He is wrong.
Nothing in the text of the three-step test, or anywhere else, indicates it does not apply to exceptions that arise or are implemented through administrative or judicial action. To be fair, a lower court ruling that may not be precedential even within its relatively small geographical jurisdiction would be a weaker case to apply the three-step test.
But this case is before the Supreme Court, the highest court in the land. Its rulings bind all lower courts and may be overturned only by itself or by Congress. So, if the Court rules that verbatim copying for use in direct competition with the copyright owner is fair use, that is the law of the land for the foreseeable future—and this country is accountable for it.
Moreover, current and past practice shows that the governments of the world consider court decisions subject to analysis for treaty compliance. Over the years, the United States Government has been peppered with questions from foreign governments about previous fair use rulings. The United States has done the same, holding other countries accountable for their courts’ decisions.
Band’s second line of attack on my three-step test analysis asserts, “the interpretation of the three-step test advanced by the ‘Thought Leaders’ is so narrow that it would completely undermine the ability of the highly commercial U.S. copyright industries to rely upon fair use.” To be clear, the interpretation I “advance” in the brief is not my own, but the interpretation of a neutral panel of international experts who decided the case brought against the United States by Ireland under the auspices of the World Trade Organization. In that dispute, the panel found an expanded exception in U.S. law concerning the public performance of musical compositions violated the three-step test. My brief merely applies that panel’s standards to the facts of Google’s copying. Band’s assertion that the panel decision (which was written twenty years ago) now suddenly undermines fair use is contradicted by the reality of the past two decades.
My final point on international matters is that if the United States fails to live up to its international commitments, it will undercut our credibility when we insist on adequate copyright protection in other countries, most notably China. Band wraps up his blog’s attention to my brief by asserting that a ruling for Google would “increase the credibility of the U.S. copyright system by showing that it can balance the needs of different stakeholders to advance the public interest.”
It says much about his approach to copyright issues that he considers outright copying of over 11,000 lines of code, for use in direct competition with the rightful copyright owner, to be a “need.” It is also telling that he conflates Google’s business decision to free ride on Oracle’s code with the “public interest.”
In any event, it is only common sense that any country presently criticized by the United States for failure to provide proper protection for copyright would be all too happy to point the finger back at us if the Court were to rule in favor of Google’s appropriation. No doubt China and other economic competitors would welcome the United States lowering its intellectual property protections, particularly for our successful technological innovations. But I don’t think it’s in our interests to be more like China is that regard.
Our trade and copyright negotiators have been hampered for twenty years by our loss in the relatively minor matter in the case brought by Ireland. A ruling in this much more economically significant case would magnify those hurdles by several orders of magnitude.
© 2020, Steven Tepp. All rights reserved.