Tag: Steven Tepp

Google v. Oracle: Copyright Thought Leaders Dismantle Pro-Google Arguments (Guest Post)

Editor’s Note:

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.

– DN –

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.

“Interoperability”

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.”

International Considerations

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.

Ad Hominem

First of all, I hate Twitter.  Not so much as a forum for sharing links to stories or the occasional witticism.  But as a platform for “arguing” a point of view, let’s be honest, it’s total crap.  140 characters to express a thought is nothing but a means to see which idea is the most popular, not which is the most valuable or well-reasoned.  Being a cynic, I’ll go out on a limb and say that it’s rare those two columns are aligned, and even less so since the dawn of social media.

The shorthand of Twitter leads even thoughtful, intelligent people to say really stupid things.  It’s where someone will complain about being the target of an ad hominem attack while committing an ad hominem attack without any hint of self-awareness or even a clear indication that the tweeter knows what an ad hominem attack is in the first place.  So, let’s clear that up.

An ad hominem attack is one that seeks to disqualify the position of a speaker or author based solely on a criticism of his or her character.  This can be as nasty as saying something like “What does she know, she’s gay?” while debating, say, education policy.  But it can also be as benign as criticizing the speaker based on his or her affiliations with work or political party, etc.  This is a major dysfunction in our politics today—the assumption that valid positions never come from sources we’ve decided are bad or that everything the “good guys” say should be accepted without question.

It is not ad hominem to criticize aspects of the way in which a speaker or author presents his or her position while also rebutting the substance of that position.  For instance, if an author writes something with which you disagree and writes it in an arrogant, offensive, or sarcastic tone, it is fair game to criticize both the style and the substance because the style is part of what’s being communicated. I give you Mr. Trump, who is usually saying something false and almost always in a manner specifically designed to offend.  Technically, criticizing Trump’s hair in context to his candidacy is an ad hominem attack, but that may be about it.

Recently, Steven Tepp, CEO of Sentinel Worldwide posted an article on Medium accusing the organization Public Knowledge of exceeding the bounds of discourse by leveling ad hominem and factually selective attacks on the US Copyright Office.  In reference to various topics, Tepp states that PK has characterized the Copyright Office as either unqualified to comment or that it has overstepped its purview.  His observation of PK would be consistent with recent posts I’ve written noting, for instance, how the EFF seeks to dismiss or misrepresent the role of the Copyright Office with regard to the FCC “set-top box” proposals or its mission to have Section 1201 struck down as unconstitutional.  Just as a matter of basic logic, if any party is stating that the Copyright Office has no business weighing in on copyright issues, this ought to trigger at least a mildly skeptical response.  If an organization funded by the pharmaceutical industry stated that the FDA was out of bounds, would you take it on face value?

But how did Public Knowledge and Mike Masnick, and no doubt many of the usual suspects, respond to Tepp’s criticism on Twitter?  By calling him a former Copyright Office employee turned MPAA lobbyist.  In other words, an ad hominem attack.  No rebuttal to the substance of what Tepp said—which is limited to statements of fact about process and the law—just a dismissal out of hand because he’s on “the wrong side.”  It doesn’t really matter what the subject is, by the way, this is how we’re steadily destroying political discourse 140 characters at a time.

In this particular case, with just a couple of tweets, non-experts declare the experts dismissible (see climate change deniers) and also reinforce the bias that Hollywood is running Washington despite the mountain of evidence that the most influential corporation throughout the entire administration is Google.  Compare the number of Google lobbyist visits (128) to the White House to the number of MPAA visits (0) and then decide if Steven Tepp’s criticism of Public Knowledge is invalid because MPAA.  Unfortunately, on social media, this form of debate is sufficient for many people.

Over the last four years, my delving into specific issues related to copyright and the digital age has made me pay closer attention to how generalized many of my own biases have been as a liberal and a Democrat.  Nearly all of the legal experts I have met—and Tepp is one of them—have been extremely thoughtful and balanced in their views, and at least half of them are political conservatives. In fact, this recent post by a new young blogger Rebecca Cusey caught my attention because she’s making what she calls a “conservative” case for copyright, but what’s interesting is that part of her argument invokes labor rights, which is a traditional Democratic party plank.

Not surprisingly, whether the issue is copyright or trade or the economy or the environment or police reform, there are still people in the center, trying to work from a qualified understanding of facts and seeking the best ideas no matter whence they come. Social media rejects this by its very nature.  It feeds on and reinforces careless, associative logic that insists everyone remain in his camp and carry the standard of whatever label has been assigned.  It’s mostly ad hominem.  That’s why I hate Twitter.