Tag: Google v. Oracle

Google v. Oracle Part II: Copyrightability and Contortionism

As noted in Part I, there are a lot of moving parts to this story that cannot be addressed in a single post; but the one thread readers should not lose is the fact that this whole dust up started because Google was the first commercial user since the launch of Java in 1995 to refuse a license agreement.  Undeterred by that legal requirement, Google proceeded use Java code to develop one of the biggest commercial ventures in computing history; and if anyone out there believes they declined to enter into that license agreement in order to foster greater competition and innovation in software, then you have not been paying attention to Google’s globally anti-competitive conduct in the market to date.  But in this post, I want to begin to address some of the legal arguments that have been presented in Google v. Oracle.

In the most basic terms, several of Google’s supporting amici—and therefore the story that seeps into the blogosphere—asserts that the “declaring code” Google copied in the process of developing Android is not properly a subject of copyright (i.e. cannot be protected).  And even if this code is protected, Google claims that its use constituted a fair use.  I shall set the fair use defense aside for a future post and address the challenge to the copyrightability in Oracle’s computer code, which turns on a single argument that what has been called the “declaring code” amounts to a system or function rather than an authored form of expression. 

I personally see two significant and intertwined challenges with regard to following this case.  First, because most of us have little or no foundation for recognizing the amount of “creativity” in computer code, it is a category of works that is highly dependent upon analogy and expert testimony; and second, because Google and most of its supporting amici are known to be anti-copyright ideologues, it is reasonable to ask whether the central argument being made is well-grounded in facts about the code at issue, rather than opinions that (once again) seek to undermine the nature of copyright itself. 

Certainly, we have seen many arguments try and fail to holistically weaken copyright in other cases; and one hint that this game may be afoot in Oracle is the amount of logical contortionism demonstrated by certain amici on behalf of Google.  And I really do mean contortionism because, for example, EFF and PublicKnowledge argued in 2017 that the question of copyrightability in the declaring code was “settled” by a completely different court finding that a system of yoga poses was not copyrightable.  If that sounds like comparing bindis and bytes to the reader who is unfamiliar with copyright law, let me suggest that it may also sound that way to those familiar with copyright doctrine in this particular case.  But now, I have to back up a bit. 

One-hundred years before software was added to the statutory protection of copyright, the Supreme Court articulated a seminal distinction in Baker v. Selden (1879), holding that although Charles Selden’s book describing his new method of bookkeeping was of course copyrightable, the bookkeeping system itself, no matter how novel, was not a subject of copyright.  In addition to its foundational role in defining the idea/expression dichotomy,* Baker also gives us the principle of the merger doctrine, which holds that when there is only one way (or just a few ways) to express something, the expression is not protected because it is said to be “merged” with the idea.  (Google’s defense hinges substantially on merger.  More on that in the next post.)

Jump to 2015, and Yogi Master Choudhury Bikram asserts in litigation with an American yoga studio that his system to promote health by means of twenty-six yoga poses and two breathing exercises, as described in his 1979 book, is protected by copyright.  Once again, the book is clearly a subject of copyright, but Bikram’s selection and arrangement of poses and exercises to bring about a particular result are, like Selden’s system of bookkeeping, not protected by copyright.  Consequently, the 2017 amicus brief filed jointly by EFF and PublicKnowledge contended that Bikram “settles” the question of copyright in the Java code, citing the Ninth Circuit opinion that, “the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.” 

That statement is true and a perfectly sound response to Bikram’s argument that he could have made different selections among poses and exercises to achieve a desired result; but even if Bikram had not asserted that particular claim of “creativity,” the doctrines established in Baker in 1879 would have been sufficient to deny copyrightability to a system of yoga poses.  So, not only does Bikram fail to “settle” the question of copyrightability in Oracle’s declaring code, but asserting that it did reads as something of a detour around the only question that matters—whether there is authorship in the code, distinct from the function it performs when executed.  And unlike yoga poses, computer code is expressly protected as a “literary work” under U.S. copyright law. 

I will dig into more detail about the nature of the code in question in the next post about this case, along with a look at arguments presented in the briefs filed with SCOTUS in support of Google this week.  But the reason I decided to highlight the Bikram detour in this narrative is that the defenses for Google seem to contain a lot of hyper-extended arguments—legal chakrasana, if you will—that begs the question as to how strong the “non-subject of copyright” argument really is.  For instance, the EFF/PK brief sought to identify an apparent doctrinal split between the Ninth Circuit holding in Bikram and the Federal Circuit holding in Oracle that its code is copyrightable …

“A finding of copyrightability [by the Federal Circuit] based on the fact that ‘the author had multiple ways to express the underlying idea,’ cannot be reconciled with the Ninth Circuit’s holding that ‘the possibility of attaining a particular end through multiple different methods does not render the uncopyrightable a proper subject of copyright.’” (citations omitted).

Again, in the context of a system of yoga poses, it is unremarkable to say the existence of other yoga poses does not make the system any more copyrightable.  EFF/PK tries to turn that holding inside out to mean that the creative expression of Oracle’s code isn’t copyrightable.  EFF filed a brief with the Supreme Court on this case this week (separate from PK) that no longer quotes Bikram, but continues to argue Oracle’s code is not copyrightable because it isn’t creative.  You or I might choose different words to express a concept, but that is more or less the soul of copyrightability – the protection of the author’s specific expressive choices. 

For instance, the Ninth Circuit language in Bikram would never suffice as a reason to deny copyright in non-fiction works like news articles.  Ten journalists developing their own versions of roughly the same story will be working with the same set of facts (we hope), but each will employ what we might describe as “multiple different methods”—arrangement of material, vocabulary, tone, amount of detail, editorial—to “attain a particular end.”  So, copyright in journalism very much does attach principally because each author takes her own approach to communicate similar—if not the same—useful information to the reader.  The same is true for programmers developing software to perform the same or similar functions.

All subjects of copyright (whimsical products of subjectivity that they are) have long been described and debated by analogy; and this is one reason why precedent language can be rather vexing when a case involving one category of works is cited in a case involving a different category—let alone comparing a non-subject like yoga poses to a statutorily defined subject like computer code.  But perhaps all this “filler” has something to do with the business story behind this conflict. 

To recap, hundreds of commercial developers licensed Java before Google set out to make Android—not one of them saying, “Hey, this isn’t copyrightable!”  Google was about to license Java in 2005, but declined to do so because the license required a level of interoperability, which (by all appearances) would have been a barrier to Google’s interest in market dominance—a dominance it now enjoys.  So, it does begin to look just a bit like Google went searching after the fact for a legal theory to justify its decision to simply bypass a creator’s copyright.  Sound familiar?  This is why is it worth asking how much this case is really about the copyrightability of Oracle’s declaring code in Android, rather than a challenge to the copyrightability of computer code in general—or to any protected works for that matter.

Google v. Oracle Part I: Or Why You Really Don’t Have to Know WTF an API Is

I freely admit that one reason I procrastinated when it came to digging into Oracle v. Google (now Google v. Oracle) is the fact that this nine-year litigation, now headed to the Supreme Court, deals with software.  Unlike most creative arts in which I have some background and knowledge, software might as well be magic spells that make our devices run (or not); and although this form of authorship is generally invisible or incomprehensible to most of us users, the code-writers say it entails creative expression, and so does the copyright law since 1980.  

This clash-of-titans lawsuit, which currently stands with two rulings (in 2014 and 2017) in Oracle’s favor at the Federal Circuit Court of Appeals, will now ask the Supreme Court to settle two main legal questions:  1) whether the specific code (part of Oracle’s Java API) used by Google without a license in the development of Android is copyrightable in the first place; and 2) if that code is protected by copyright, whether Google’s use is protected by the fair use doctrine.  I will actually address the legal narrative and issues in subsequent posts because on top of the triable matters and doctrinal debates, is a business and PR story that should probably be addressed first. 

From Google’s perspective—and that of its defenders, who include many prominent copyright critics—the future of software innovation itself hinges on Google ultimately prevailing in this case.  These parties allege that developers everywhere depend on using programs like Java API (originally developed by Sun Microsystems) without license; and if they cannot do so, software evolution as we know it will be in jeopardy.  But without even getting into what an API is, and whether it can be copyrighted, let us keep in mind that this is Google we’re talking about—a market-killing, competitor-squashing, policy-manipulating, rights-infringing monopsonist that lacks any street cred to be speaking on behalf of the start-up entrepreneurs out there. 

Copyright history is replete with this recurring theme:  one business or industry would prefer to circumvent or deny copyright protection to a particular class of work and declares that, if their argument does not prevail accordingly, the death of [insert industry here] will ensue, and the public will suffer for the loss.  In this sense, note Google’s very broad statement in its petition asking the Supreme Court to grant certiorari …

“Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications.”

Notice how the narrative thrust here positions Google as just another developer doing good works for society, almost as though the company had no interest whatsoever in becoming one of two—count them, two—smartphone platforms now being used in several major markets.  But Google is, of course, not just another developer.  According to Oracle’s brief in opposition to granting cert …

“Google faced an existential threat.  People with mobile devices were not using Google’s search engine, causing Google to lose significant advertising revenue.  It needed to quickly develop a platform tailored to mobile devices that would promote Google search.”

Perhaps Google would dispute this fact pattern, but it sounds substantially more realistic—and is wholly consistent with the company’s market behavior to date—than the tech giant’s alleged, post hoc concern for “developers everywhere.”  In order to move as quickly as possible into the mobile market, and encourage developers to create apps for what would become Android, Google describes …

“In 2005, Google and Sun began discussing a partnership that would have allowed Google to adapt the entire Java SE platform for smartphones. Google and Sun conducted negotiations but were unable to reach an agreement. In the absence of such an agreement, Google used the freely available Java language (and its declarations) to develop its own libraries of methods that enabled developers to build smartphone applications for use on Android devices.” (Emphasis added)

Note that I highlighted a couple of terms in order to draw your attention to what reads like a contradiction.  If indeed a software is “freely available,” why was a party like Google “negotiating” with Oracle for its use in the first place?  It seems almost as though some piece of that story is missing, which, not surprisingly, Oracle fills in with its brief, stating, “Google rejected the condition Oracle demanded of all commercial licensees: make Android ‘compatible with the Java’ platform and ‘interoperable with other Java programs.’” (Emphasis added)

Again, I will leave the matter of copyrightability of the specific code Google appropriated to a future post; but even without understanding what Java or an API is, the whole existential-threat-to-software-development narrative starts to look a little squishy.  Instead, this story begins to read like a typical scenario in which a commercial user (one of the biggest commercial users in the world) did not like the licensing terms to which several other commercial users had subscribed and, so, opted to go permissionless and sort it out later.  With regard to its licensing regime, Oracle states that app programmers (e.g. those folks who make games and guitar tuners etc.) can obtain a free Java platform license for development.  But …

“Oracle recoups its investment in the Java platform mainly by licensing it to (1) hardware manufacturers who copy the platform onto their devices…and (2) competing platform developers who want to use Oracle’s programs to commercialize their own platforms.  Any platform developer that does not want to take a license is free to develop its own platform with identical functions without copying the Java platform.  Apple and Microsoft did it.”

Assuming these statements are undisputed facts—and we need not understand the technology here—what exactly was Google’s problem with agreeing to the “interoperability” term of the license agreement, which other platform developers like Blackberry, Nokia, et al had signed?  Could it possibly have been that the “interoperability” condition was a barrier to Google’s ambition to have something proprietary and, thereby, own as much of the mobile market as they could acquire?  Sounds pretty Googley to me.

So, for all the chatter surrounding this litigation about the importance of “innovation, competition, and future software development,” it must at least be plausibly entertained that Google sought to leverage Oracle’s IP in order to expedite time-to-market while also insulate itself from any liabilities that might obstruct its eventual market dominance.  That would certainly be consistent with the kind of conduct many rights holders in other media have witnessed (see YouTube), and so would Google’s couching its own interests in broad statements like this one: 

“If allowed to stand, the Federal Circuit’s approach will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.”

Given the different tiers of licensing available for the Java platform, including the free license for app developers, that doomsday prediction does not ring entirely true and, therefore, belies the broad narrative that the future of all software development is under siege by Oracle’s claim.  This is, of course, a familiar pattern among Silicon Valley corporations—especially Google—whereby they emphasize the general value of a system (e.g. a smartphone, a search engine, a social platform) while understating their own interests in the market itself.  And they often achieve this sleight-of-hand by misdirecting public attention to hypothetical “competitors” in the abstract, while in reality, these tech giants have a habit of killing potential rivals before they get out of the lab.  

As stated, I will do my best to dig into some of the specific copyright matters in Google v. Oracle in future posts; but as these stories tend to seep into public dialogue in layman’s terms and PR messaging, this seemed like the right place to start.  The general premise that Google’s needs are inherently society’s needs has worn very thin.  And it’s about time.