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<ul><li><p>dwt.com </p><p>(Almost) Live from the Federal Circuit, it's </p><p> Java vs. Android A Blow-by-Blow Account of a Major Battle in the </p><p>Smartphone Wars Do APIs Have Copyright Protection? </p><p>Presented by Lance Koonce, Davis Wright Tremaine LLP </p><p>Twitter: @LHKoonce Email: lancekoonce@dwt.com </p></li><li><p>dwt.com </p><p>The Backstory Sun Creates Java </p><p> Java platform developed by James Gosling at Sun Microsystems in early 1990s </p><p> Released in 1996, now one of most popular programming languages in use (as of 2012, 9 million developers using Java) </p><p> Javas write once, run anywhere premise: once coded in Java, a program need not be recompiled for different platforms </p></li><li><p>dwt.com </p><p>The Backstory Javas Components </p><p> Java is a programming language, but platform also includes packages of regularly-used programs, organized in libraries </p><p> These packages are APIs -- Application Programming Interfaces </p><p> APIs consist of (1) declaring code; and (2) implementing code </p><p> APIs are like short cuts: programmer does not have to use them to write code in Java, but makes coding more efficient </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory Google Acquires Android </p><p> Android Inc. founded in 2003 by Andy Rubin, Rich Miner et al. </p><p> Google purchased Android in 2005 </p><p> Beginning in late 2005, Google discussed partnership with Sun that would allow Google to use Java in developing Android </p><p> Parties tell differing stories about what occurred, but they reached an impasse and Google went its own direction </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory -- Google Develops Android Using Aspects of Java </p><p> Google used Java in its development of Android, and some of the Android libraries incorporate Java APIs </p><p> Google launched Android in 2007, now has 80% of smartphone market </p><p> Believed it was free to use the Java APIs because they were noncopyrightable subject matter </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory Copyright Basics </p><p> Copyright extends to original works of authorship </p><p> Congress has specifically mandated that software is protected under the Copyright Act </p><p> Software is protected as a literary work </p><p> Numerous cases hold that copyright protects source and object code </p><p> Protection covers not just the literal text of a literary work, but also the structural and organizational elements of the work </p><p> For a novel, this might include a detailed plot outline </p><p> But even can cover the organizational elements of a phone book, if sufficiently expressive </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory Copyright Basics </p><p> Copyright does not protect ideas or concepts, only the expression of such ideas/concepts: </p><p> Example: Cannot protect the idea of someone waking up in a hospital to find theres been a zombie apocalypse while they were in a coma </p><p> But, you can protect a particular expression of that idea: </p><p> This idea/expression dichotomy is one of the fundamental pillars of copyright law </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory Copyright Basics </p><p> Section 102(b) of Copyright Act also says copyright will not extend to functions, processes or methods of operation </p><p> Codifies Baker v. Selden case (1879) that copyright in a book on accounting did not extend to method described in book Cant copy exact words, but anyone can use the same method </p><p> Method would be protected, if at all, by patent law </p><p> Does not mean if there is an idea, concept, method or functionality embodied in work, entire work not protectable by copyright All works contain ideas/functionality at some level of abstraction </p><p> Question is whether the idea and expression (or function and expression) are so intermingled (merged) that they cant be separated </p><p> Courts ask whether there are multiple ways to express idea/function </p><p> 12/5/2013 </p></li><li><p>dwt.com </p><p>The Backstory Copyright Basics </p><p> Copyright also does not cover elements of a work that are dictated by external constraints For example, if a software developer is required to include a particular </p><p>line(s) of code in order for the software to interact with other software already in the market, this might be deemed nonprotectable </p><p> One work has been determined to be protected by copyright, question turns to whether it has been copied (infringed) </p><p> Even if use is otherwise infringing, may be a fair use: Is the new use one that the law treats as in the public interest, such as </p><p>news reporting, scholarship </p><p> Four factor test to determine fair use </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Battle is Joined </p><p> Oracle purchased Sun in 2010, sued Google in US District Court in California for patent and copyright infringement of Java </p><p> Sued over 37 API packages that Oracle argues make up the most important packages in Java </p><p> Argued that Google copied the structure, sequence and organization (SSO) of the API packages </p><p> Also argues that Google copied 7000 lines of code that make up the package declarations (Google now argues this was waived) </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The First Skirmish Federal District Court </p><p> Case was tried to a jury on patent infringement </p><p> Jury found no patent infringement by Google </p><p> On copyright claims, jury was told to assume the APIs were copyrightable, and to decide infringement and fair use </p><p> Jury found that Google did infringe, but hung on fair use issue </p><p> Judge Alsup then decided the issue of whether the APIs were copyrightable in the first instance </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The First Skirmish Googles Arguments </p><p> Parties agreed that Google had not literally copied the implementing code for the entire 37 packages </p><p> Google argued that the API declaring code (which was copied) was functional and non-copyrightable </p><p> Google also argued that the SSO was unprotectable because it was functional and a mere method of operation </p><p> Cited Lotus v. Borland case where Borland copied command hierarchy of Lotus 1-2-3 to allow users to use Lotus macros in Quattro Pro </p><p> Court in Lotus said command structure was not protectable </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The First Skirmish Googles Arguments </p><p> Google relied heavily on two Ninth Circuit cases for principle that aspects of a computer program that address interoperability are not protectable </p><p> Sega v. Accolade: Reverse engineering case in which Accolade made intermediate copies of Segas software in order to understand how Segas game console interfaced with Segas own game cartridges. In fair use analysis, Court said interface procedures for compatibility were functional aspects not copyrightable under Section 102(b) </p><p> Sony Entertainment v. Connectix: Another reverse-engineering case in game console context; also discusses protectability of functional aspects in fair use context </p><p> 12/5/2013 </p></li><li><p>dwt.com </p><p>District Court Ruling on Copyrightability of APIs </p><p> Judge Alsup held that APIs were not copyrightable </p><p> This mooted the jurys decision on infringement, and its failure to reach a decision on fair use </p><p> Controlling principles cited by Judge Alsup: </p><p> Merger </p><p> Names and short phrases not protectable </p><p> Functional elements essential for interoperability not protectable </p><p> No protection for sweat of the brow -- should not use copyrightability merely to reward an investment made in a body of intellectual property. </p><p> 12/5/2013 </p></li><li><p>dwt.com </p><p>District Court Ruling on Copyrightability of APIs </p><p> Key Quotes from Judge Alsup: </p><p> The rules of Java dictate the precise form of certain necessary lines of code called declarations, whose precise and necessary form explains why Android and Java must be identical when it comes to these particular lines of code. That is, since there is only one way to declare a given method functionality, everyone using that function must write that specific line of code in the same way. (Discussing merger) </p><p> In order to declare a particular functionality, the [Java] language demands that the method declaration take a particular form. (Discussing words and short phrases) </p><p> Sega case expressly held that interface procedures for compatibility were functional aspects not copyrightable under [Section 102(b)] </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>District Court Ruling on Copyrightability of APIs </p><p> Decision evidences patent-centric view of software protection </p><p> Also tends to favor developers of apps and software that interoperate with established platforms over the creators of the original platforms </p><p> At the very least, decision decidedly in favor of open-source </p><p> Although nominally limited to the specific Java APIs, it is hard to imagine any APIs protected by copyright under his analysis </p><p> Indeed, decision can be read as creating significant doubt regarding the copyrightability of software generally, and certainly regarding copyrightability of the SSO of software </p><p> 12/5/2013 </p></li><li><p>dwt.com </p><p>The Second Skirmish The Federal Circuit </p><p> Federal Circuit typically oversees appeals of patent cases </p><p> Here, has jurisdiction over appeal even though the patent claims are no longer in the case </p><p> Appeal may give Federal Circuit an opportunity to distinguish between copyrightable software and software patents </p><p> Limits of patentable subject matter have been front-and-center in recent years, and CLS Bank v. Alice Corp. in Federal Circuit in May 2013 has generated even more confusion over when software can be patented </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Oracles Arguments on Appeal </p><p> Big picture arguments: </p><p> There should be no software exceptionalism for APIs </p><p> APIs should be treated the same as any software </p><p> Decision undermines the basic copyright bargain: </p><p> Developers rely on copyright to protect value of their extensive efforts to bring new works to the public </p><p> Price for those who follow and dont have to develop from scratch is license </p><p> Google did not like license terms so just copied the software and piggybacked for free on Suns work </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Oracles Arguments on Appeal </p><p> General principles for copyright protection of software: Copyright Act sets low bar for protection </p><p> Software protected same as any literary work </p><p> Oracles brief compares its software to a novel: Google copied chapter titles verbatim, then topic sentences of each paragraph; then paraphrased rest </p><p> Under these precedents, both declaring code and SSO are protectable </p><p> Copyright protection for Java source code: District Court misapplied doctrines of merger and short phrases when examining </p><p>protectability of declaring code </p><p> Copyright protection for SSO Court erred in finding all organizational and structural elements of APIs were merely </p><p>methods of operation </p><p> Court incorrectly interpreted case law on interoperability and misapplied it to facts </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Googles Arguments on Appeal </p><p> Essence of argument: Judge Alsup got everything right </p><p> Made detailed factual findings after 10-day bench trial with 24 witnesses </p><p> Big Picture Arguments: </p><p> APIs are different from literary works such as novels </p><p> However creative and useful the Java API may be, it is fundamentally a functional, utilitarian work, and only receives weak protection </p><p> Like Oracle, Google invokes the fundamental purpose of the Copyright Act to encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on. </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Googles Arguments on Appeal </p><p> Binding Ninth Circuit precedents compel affirmance of the judgment dismissing Oracles claim that SSO infringed </p><p> Section 102(a) imposes a minimal originality requirement for copyrightability and section 102(b) then filters out and denies protection to functional elements </p><p> Only the writing (source code) is protected; the methods (here, API packages) are not </p><p> Section 102(b) ensures that functional elements within a copyrightable work are protected, if at all, only by patent law </p><p> Sega and Sony held that section 102(b) filters out and denies copyright protection to interfacesfunctional program elements necessary for compatibility </p><p> 12/5/2013 </p></li><li><p>dwt.com </p><p>Amicus (friend of the court) Briefs </p><p> Supporting Oracle/Favoring Reversal: Microsoft, EMC, and NetApp </p><p> Ralph Oman, Former Register of Copyrights </p><p> The Software Alliance </p><p> The Picture Archive Council of America and Graphic Artists Guild </p><p> Computer Science Professors (3) </p><p> Former executives of Sun Microsystems </p><p> Supporting Google/Favoring Affirmance: </p><p> Rackspace US, Application Developers Alliance, TMSoft and Stack Exchange </p><p> Software Innovators, Start-Ups and Investors </p><p> Computer Scientists </p><p> Intellectual Property Law Professors </p><p> Computer &amp; Communications Industry Association </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Main Event: Oral Argument on Dec. 4, 2013 </p><p> Federal Circuit Panel Consisted of: </p><p> Circuit Judge S. Jay Plager </p><p> (Assumed Office in 1989) </p><p> Circuit Judge Kathleen M. OMalley </p><p> (Assumed Office in 2010) </p><p> Circuit Judge Richard G. Taranto </p><p> (Assumed Office in 2013) </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Main Event: Oral Argument on Dec. 4, 2013 </p><p> Overview: </p><p> Crowded courtroom </p><p> Hot bench: neither attorney made much of a presentation before the grilling began by the judges </p><p> Joshua Rosencrantz of Orrick argued for Oracle </p><p> Robert Van Nest of Keker &amp; Van Nest argued for Google </p><p> Toughest questions were asked of Google </p><p> Judge OMalley in particular very skeptical of several of Googles primary arguments </p><p> Judge Taranto may have had more sympathy for Google than Judges OMalley and Plager </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>The Main Event: Oral Argument on Dec. 4, 2013 </p><p> Further Overview: </p><p> Surprisingly few questions about interoperability, BUT judges seem to believe that it was incorrect to define the copyrightability of software based on whether a market for interoperable products later developed </p><p> Harshest criticism was for Googles reliance on Sony and Sega cases given that they were decided in fair use context </p><p> Judge OMalley: Those cases just dont say what you say they say </p><p> Judges troubled by how to separate out functional aspects from expressive aspects, and whether case has to be remanded to Judge Alsup to do so </p><p> Judges also troubled by scope of Alsups ruling how any software could be found copyrightable </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Oral Argument: The Details </p><p> Oracles Argument </p><p> Oracle argued that 7000 lines of declaring code copied, and that waiver argument was a sideshow (waiver argument never gained traction) </p><p> OMalley pressed Oracle to explain what a method of operation in 102(b) is, as opposed to what it is not; Rosencrantz argued that it is a series of steps stated in an abstract way (versus concrete expression) </p><p> Judge Plager suggested the lower court had difficulty separating expression from function, and asked Oracle whether it was true that most computer code performs a function; Oracle said ALL code does </p><p> Plager: So how do we separate from expression? </p><p> Oracle: Points to security functions and argues that Google could recreate the security functionality, but not the actual structure of the Java code </p><p>12/5/2013 </p></li><li><p>dwt.com </p><p>Oral Argument: The Details </p><p> Taranto asked whether Oracle was saying it could copyright the organization of the method itself </p><p> Oracle said that methods arranged in a particular way can be protected, but in any event the way Google infringed was to copy the code in...</p></li></ul>

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