Application of problematic CJEU ruling on copyright infringement by hyperlinks is getting out of hand

The European Union, which is already dysfunctional in some even more important regards, threatens to become the world's craziest, most innovation-hostile copyright jurisdiction. Copyright rationality is facing a two-front war in Europe:

• Just last month, the European Commission announced a push for a "neighboring" right demanded by mediocre, traditional media companies who just can't deal with Google's brilliance and well-deserved success.

  If what happens in other industries on an almost daily basis is any indication, those companies will offer former European commissioners and other EU officials some nice jobs in a few years' time. They may not even wait that long: Bertelsmann has officially had an influential "conservative" MEP on its payroll for decades and there may be more cases like that one.

• In parallel, courts are extending the rights of copyright holders against website operators in a way that is nothing short of frightening. The Internet itself is under judicial attack. That's what I'm going to talk about in the remainder of this post.

Let's start with the statute. Directive 2001/29/EC of the European Parliament and of the [European] Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (official PDF ), briefly called the "EU Copyright Directive," says the following in its Article 3(1):

"Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."

The two court decisions establishing liability for Internet hyperlinks to websites that contain copyright-infringing material--one by the CJEU and one by the Landgericht Hamburg (Hamburg Regional Court) based on the CJEU opinion--that I'll discuss below are based exclusively on that statute.

Seriously, how could that statute ever have given rise to the current situation?

There's a two-letter word in the statute that we need to focus on: "of" as in "communication to the public of their works" and "making available to the public of their works." A regular Internet hyperlink does not match either definition, not by any stretch of the imagination:

• An Internet link that points and, if clicked on, redirects users to another website (as opposed to incorporating an image or text from an external URL into one's own site) is not a "communication of" whatever may be on the referred site. It's a communication about the referred site.

• Nor does such a link constitute a "making available [...] of" whatever may be on the other site (unless, which is not what we're talking about here, the other site is password-protected and you need to go through some other site to gain access). You can't make available what already is available. If lawmakers had intended to cover promotional activities, they could and would have phrased it differently. Again, the preposition "of" means that what is made available must be the copyrighted works, not just information about or pointers to such works.

But here's the rule established by the Court of Justice of the European Union (CJEU) in its Second Chamber's September 8, 2016 judgment (case no. C-160/15, GS Media BV v. Sanoma Media Netherlands BV, Playboy Enterprises International Inc., and Britt Geertruida Dekker):

"Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a 'communication to the public' within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed."

That's just unbelievable. I have read this sentence over and over again, and I don't think I've ever seen anything like that in a U.S. ruling, let alone by higher courts. It happens in all jurisdictions that concepts get conflated or confused, but the words "conflation" and "confusion" are by far not strong enough to describe this.

It's highly illogical that unrelated factors such as a profit motive and knowledge of an infringement cold have any bearing on the term "communication to the public." You either communicate (including that you make available) something to the public or you don't, but that is unrelated to whether you do it for profit, for fun, or pro bono, just like it has nothing to do with whether you do it on a Tuesday or a Wednesday. Also, a "communication to the public" (including a "making available") is a communication to the public regardless of whether it's legal or illegal. That is a subsequent question then.

At any rate, the critical question here is not whether an Internet link is a "communication to the public": it's whether it's a "communication to the public of [some copyrighted material]" as opposed to just some communication "about" it, which clearly falls outside the scope of the statute.

Even if we give that decision the benefit of the doubt and just assume they (like the court that posed the question for review) incorporated "of their works" by referring to the statute, the fundamental problem is still the same: whether or not something (here, a link) is a "communication to the public of [something else]" is not a matter of motivation, legality, or knowledge. The statute defines the scope of an author's exclusive right, not infringement, and that's why it doesn't even obliquely mention the circumstances of a potential act of infringement.

If you look at the court's reasoning, it just turns logic on its head and seeks to justify it with an understanding that the EU Copyright Directive was generally meant to afford strong protection to copyright holders.

This illogical attempt to import the circumstances of an infringement into the definition of the scope of an author's exclusive right was even more unnecessary in light of the fact that Attorney General Melchior Wathelet had explained very well in his final pleading (which the CJEU follows most but not all of the time). Here are my favorite sentences from his opinion:

• "If the Court were to rule that the posting on a website of hyperlinks to protected works which are freely available on another website cannot be classified as an 'act of communication', the question of the copyright holder not having authorised the placement of his work on other websites operated by third parties would no longer arise." (paragraph 45)

• "Although it is true that hyperlinks posted on a website make it much easier to find other websites and protected works available on those websites (28) and therefore afford users of the first site quicker, direct access to those works, (29) I consider that hyperlinks which lead, even directly, to protected works do not 'make available' those works to a public where the works are already freely accessible on another website, but merely facilitate the finding of those works. As the Portuguese Republic states in its observations, the act which constitutes the actual 'making available' was the action by the person who effected the initial communication." (paragraph 54) "It follows that, in order to establish an act of communication, the intervention of the 'hyperlinker' must be vital or indispensable (33) in order to benefit from or enjoy works." (paragraph 57)

• "Since one of the cumulative criteria necessary for establishing a ‘communication to the public’ under Article 3(1) of Directive 2001/29 is not met, the question of the copyright holder not authorising the placement of his work on other websites operated by third parties (36) is, in my view, immaterial." (paragraph 61)

• "I consider that extending the concept of 'communication to the public' to cover the posting of hyperlinks to protected works freely accessible on another website would require action to be taken by the European legislature." (paragraph 79)

The court also ignored input from the European Commission and the governments of Germany, Portugal, and Slovakia. And the government of France argued that the copyright image would not have been easily accessible on its original site due to the need for a "key," which would have been a way to find in favor of the right holder based on "making available of" as opposed to a highly illogical interpretation of the term "communication to the public of [a copyright work]." The French position would have been considerably narrower than the disastrous one the CJEU adopted. That would be an example of a "vital or indispensable" intervention by the hyperlinker.

Copyright is the most important protection for me as a software developer. I've taken very pro-copyright positions on this blog, particularly in connection with application programming interfaces (APIs), a context in which large parts of the open source and "open Internet" communities disagree with me. But even I want the scope of copyright to have reasonable boundaries.

If you think it through, this approach to hyperlinks has pretty much no boundary: if a direct hyperlink to a site that contains infringing material makes the original site an infringing site, what about sites linking to that site? Or sites linking to sites linking to that site, which in turn links to the site that contains the copyrighted work?

To the extent that AG Wathelet and some governments argued that a decision holding hyperlinks to constitute potentially-infringing communications to the public was "to the detriment of the proper functioning and the very architecture of the internet, and to the development of the information society," I agree in principle but, philosophically, can also appreciate the CJEU's desire to close a potential loophole: profit-seeking infringers could work with a partner site in a territory where copyright enforcement is hard and then link to the illegal copies of some material, including computer programs.

I don't deny that there is a potential enforcement issue, but I agree with AG Wathelet that any related questions would have to be addressed by lawmakers. (Needless to say the EU has an enforcement directive.) If someone really tried to hide behind hyperlinks in order to benefit commercially from copyright infringement, there should be a means of shutting that activity down. In some jurisdictions, including Germany, copyright infringement can (under certain circumstances) constitute a crime. If there's a criminal infringement, such as an illegal file-sharing site, and someone drives traffic to that site, then he aids and abets a crime. Let's go after those bad guys and, if and wherever necessary, the law should be adjusted to today's technological realities. But a statute that defines a scope, not an infringement, remains a statute that defines a scope, not an infringement.

It didn't take long before the first national court applied the CJEU decision to another hyperlink case. The Landgericht Hamburg (Hamburg Regional Court) found in favor of a right holder who was represented by lawyers who simply wanted to test the boundaries and advance the development of case law. They published the decision (PDF, in German). I don't want to go into detail on that one. The gist is that the Hamburg court interpreted the CJEU guideline to the effect that anyone who generates any income from a website, even if that income is not directly related to a link to a website that infringes someone's copyright, the failure to know about the infringement is not an excuse because the Hamburg judges believe the CJEU ruling implicitly requires some IP clearance by the hyperlinker.

I disagree with this result, of course, and I hope the appeals court will overturn it and restore sanity. But the Hamburg application of the CJEU ruling is not contrary to what the CJEU wrote. The CJEU established liability for cases in which the hyperlinker has some kind of "financial gain" and could reasonably have found out about the infringement on the referred site. That is not the only and, in my opinion, not even the most reasonable interpretation of the CJEU decision. Short of also holding someone responsible for linking to a site that links to a third site, which then contains unlicensed material, the Hamburg approach is the most extreme interpretation, but it's not indefensible (unlike the CJEU's importing of infringement criteria into the definition of a scope).

The CJEU could have prevented the Hamburg court's interpretation by making it clear that the failure to be aware of an infringement only results in liability if there was what is called "willfull blindness" in U.S. law. The CJEU could also have limited the concept of reasonableness to the presumption of someone's knowledge of an infringement. But it didn't, and that's why the Hamburg decision wasn't baseless at all.

The weakness of the Hamburg ruling is that anyone who knows the practicalities and realities of the Internet would disagree with the idea that IP clearance of sites one links to is commercially reasonable. Furthermore, anyone who knows about the subject understands that such a requirement would have chilling effects on linking, making right holders lose a lot more (because of fewer links) than they would gain from occasionally having an additional enforcement opportunity (besides going after someone who published unlicensed content) by shutting down hyperlinks. It's in this area that I believe other courts (the Hamburg decision is not binding for any court, not even for the Hamburg court itself) will usually reach different conclusions. But until then, there will be chaos and confusion.

Just when one terrible appellate ruling was overturned in the U.S. (design patent damages in Apple v. Samsung), it becomes clearer than ever that EU copyright law is a mess. It's not like the Internet has been "destroyed," but it's yet another failure by the EU.

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New Oracle filing might result in damages theory north of $10 billion in Google copyright case

Last month there was quite some talk on the Internet about Oracle seeking $9.3 billion in damages from Google in the famous Android-Java copyright case that will go to trial again in a month, with the bulk of that amount ($8.8 billion) being a claim for disgorgement of infringer's profits. Since the related documents are all heavily redacted, I'm far from sure that the disgorgement and reasonably royalty figures can be added up: those are more likely alternative theories. Either way, we're talking about roundabout $9 billion that Oracle wants. At those altitudes, a few hundred million dollars more or less don't matter.

Google naturally rejects Oracle's claim, but it has a problem: the court-appointed damages expert, Dr. Kearl, has come up with a very wide range that also includes Oracle's number as a plausible scenario. That's why Google brought a motion--without previously seeking permission from the court--to exclude Dr. Kearl's testimony from the trial. Judge Alsup, who usually appears to be very strict on case management matters, merely gave Google a slap on the wrist and allowed Google to break a couple of rules at the same time (limit of number of motions in limine, page limit) with that additional motion. In exchange, he also allowed Oracle to bring an additional motion in limine.

Oracle has just filed its response to Google's motion. It's not an opposition brief in all respects: Oracle had already opposed Dr. Kearl's renewed involvement with the case and would still like to see his testimony excluded. Oracle is being very consistent up to that point.

But what if Judge Alsup, whose decisions I've struggled to understand on more than one occasion (most recently, I was very surprised about how he dealt with Google's unauthorized motion) and the most important one of which (copyrightability) resulted in a disaster for him, still wants Dr. Kearl to testify? In that case, Oracle at least wants to prevent the "cherry-picking" it accuses Google of. Apparently, Dr. Kearl came up with three numbers, and Google would like to limit that testimony to a number that would amount to Oracle getting nothing.

In its opposition to such cherry-picking, Oracle first argues that a disgorgement analysis should not consider non-infringing alternatives ("NIAs"). Oracle may be right on the law, but as a matter of policy, I disagree with Oracle on this one. Anyway, here's the most interesting passage from Oracle's latest filing:

"Prof. Kearl's Oracle Number is consistent with Oracle's $8.8 billion, and is in fact much larger than Oracle's $8.8 billion if the Court excludes his improper use of NIAs. Presumably Rule 706 experts do not often offer a number larger than the Plaintiff intends to offer."

It would be unusual indeed, and it would be the result of the court agreeing with Oracle's legal position that non-infringing alternatives cannot be used to reduce a disgorgement figure.

I don't know what Oracle's lawyers believe to be the number resulting from Dr. Kearl's analysis if adjusted by means of removing NIAs, but I guess they wouldn't say "much larger" (emphasis in original) if we were talking about a 5% or 10% difference. A 5% or 10% difference would be "significantly" larger. Therefore, it is fairly possible that the proposed adjustment to Dr. Kearl's numbers would result in a claim well in excess of $10 billion.

Besides that information I wanted to share something else from Oracle's filing. Oracle refers to a 1985 Ninth Circuit decision, Frank Music Corp. v. MGM, Inc.. In that one, a disgorgement of profits from unauthorized performance of scene from a musical at the (old) MGM Grand was based on multiple revenue streams including increased hotel and casino revenues. While it turned out later that the MGM Grand was still doing well without continued infringement, evidence had been provided that the MGM Grand used shows such as the infringing one to bolster its hotel and gaming revenues. The Ninth Circuit wrote:

"Just because one element could be omitted and the show goes on does not prove that the element was not important in the first instance and did not contribute to establishing the show's initial popularity."

This has some important bearing on Oracle v. Google, where Google argues that it no longer needed the 37 Java API packages or that it could already have removed them in 2010. Oracle argues that "the causal connection here is far stronger, because the revenues Oracle seeks to recover were realized on the infringing work (Android), while the gaming and hotel revenues in Frank were earned separately from the infringing work (the show)."

Here's Oracle's filing:

16-04-08 Oracle Response to Google Motion to Strike Kearl Testimony by Florian Mueller

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Oracle to court: Samsung's offense was also Google's defense in Apple case, expert not neutral anymore

In the Android-Java copyright infringement litigation in the Northern District of California, Oracle filed a reply Wednesday evening in support of its motion to disqualify the court-appointed damages expert Dr. James Kearl. In the meantime I had published and commented on Dr. Kearl's filing, which was a de facto opposition brief. Google formally opposes the motion, but I found nothing of interest in Google's opposition brief other than Google offering the prediction that Oracle's damages claim in next year's retrial would be substantially greater than the billion-dollar claim from 2012.

Here's Oracle's reply brief (this post continues below the document):

15-11-04 Oracle Reply in Support of Disqualification of Court Dr. Kearl by Florian Mueller

In the first section, Oracles notes, as I had after Dr. Kearl's filing, that a number of facts about Dr. Kearl's involvement with Apple v. Samsung on Samsung's and, by extension, Google's behalf are undisputed. One of those facts is that the law firm of Quinn Emanuel represented both Google and Samsung, with Google paying directly for some of QE's work:

"That Quinn Emanuel represented both Google and Samsung shows that the important strategic decisions—like asserting counterclaims—likely served the best interests of both companies. [...] It would have been impossible for Google's attorneys to participate in some parts of the litigation while only Samsung's attorneys handled other parts. Google's attorneys were Samsung's attorneys."

The paragraph quoted above is not wrong, but it is obviously a bit one-sided. First, Google was a beneficiary of the counterclaims Samsung brought (in order to discredit Apple's out-of-this-world damages claims in that case), but I doubt Google was involved in any of the decisions relating to those counterclaims, other than maybe as an informal advisor. Second, QE is a big firm and had (actually, still has) a huge team involved with Apple v. Samsung: not just the size of a soccer team but more attorneys than you see different plays in a World Cup semifinal. Such Texas-size teams are not manageable in any context unless there is some division of labor, and I guess different lawyers will have worked on the details of the various patents-in-suit.

That said, I do believe the fact that Dr. Kearl worked with QE in Apple v. Samsung, a case in which QE also represented and presumably continues to represent Google, warrants his disqualification, and it's by far not the only and not even the strongest reason.

The next passage is even stronger in my mind:

"Second, Dr. Kearl helped the Samsung/Google team by offering his analysis of Samsung's counterclaims at trial. Google had two ways to lower Apple's damages, and thereby its liability: on defense, by undermining Apple's expert's analysis; and on offense, by convincing the jury that smartphone patents are not worth much. To execute the offensive strategy, Samsung counterclaimed for $6 million to argue that Apple's $2 billion demand was overstated. When Dr. Kearl testified about Samsung's counterclaims, he also helped to defend Google. In other words, Samsung's offense was also Google's defense."

The above is absolutely true. Even though Dr. Kearl denies that he had sandbagged his damages figures, there cannot be the slightest doubt that he knew, before starting his analysis, what his client wanted to achieve. They won't have told him to arrive at a lowball damages figure. They will have said something to that effect in a slightly more subtle way. For example, they might have told him something like "look at Apple's lunacy of a damages claim and just so you know, we don't want to reciprocate that but we want to show the jury what a more reasonable damages claim looks like." He must have known that he was expected to come up with something that would contrast with Apple's approach.

The second, shorter part of Oracle's reply brief explains why there should be no other court-appointed damages expert either. Oracle's argument is convincing to me when looking at it through the lens of U.S. litigation. In other jurisdictions, such as the one in which I live, court experts are the norm. In the U.S., they are meant to be a rare exception, and if there were reasons for a rare exception last time, the threshold will hardly be met now that the case no longer involves any damages theories related to patent claims.

I guess Dr. Kearl will be disqualified later this month. Anything else would be outrageous.

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Court expert: I don't want to appear partial and oppose Oracle's motion, but I'm doing it anyway

Dr. James Kearl, the court-appointed damages expert in the Oracle v. Google Android-Java copyright infringement case, yesterday responded to Oracle's motion to disqualify him on the grounds that he is no longer impartial due to his work on Samsung's behalf in the Apple v. Samsung cases that went to trial last year.

Here's his filing (this post continues below the document):

15-10-28 Kearl Answer to Oracle Motion to Disqualify by Florian Mueller

I had a #facepalm moment when I read toward the bottom of the first page that he does "not believe it appropriate for [him] to oppose Oracle's motion" because he--untruthfully--says he does "not have an adversarial position vis-a-vis Oracle" and then read on. His filing is not just a declaration that serves to state some facts for the record. It simply is an opposition to Oracle's motion. Nothing more and nothing less. Anything to the contrary should be reserved for April Fools' Day.

Dr. Kearl's filing spans several pages but does not contain anything new, enlightening, surprising, or whatever else might add value to the motion process.

Oracle's motion makes clear what the concern is: he's closer to one side than to the other. For a judge who had concerns in 2012 about bloggers potentially influencing a court or a jury (if that had happened, he'd have read blogs like Groklaw that got the rules for copyrightability totally wrong), it should be a no-brainer to dismiss a court-appointed expert once there are facts that show more of a proximity to one party than to the other.

Oracle's motion didn't refer to the strawmen Dr. Kearl's filing puts up just to have something to tear down. It's undisputed that he did not provide expert testimony directly on Apple's infringement assertions against Android. He does not deny, however, that Samsung used his testimony to convince the jury (rightfully so) that Apple's damages claims in that case were not just outsized but downright irrational.

He denies that he or his firm received $5 million (Apple's lawyers told the jury that Samsung had spent $5 million on damages counterclaims of §6 million and that this fact showed Samsung's counterclaims were just about devaluing patents), but he does not say what he and his firm received instead. Also, he doesn't explain why Samsung's trial counsel didn't object to the $5 million claim.

He stresses that he "did not meet or speak with any Samsung corporate officer or employee at any time before, during or after the Apple v. Samsung trial, with the single exception that a Samsung in-house attorney was intermittently present during portions of my preparation that occurred over parts of three days leading up to my court testimony that lasted no more than 20 minutes." Samsung is not a party to Oracle v. Google anyway. But what does he say about Google?

"My communication and work was with counsel from the Quinn Emanuel law firm, which was the outside law firm for Samsung. Likewise, whatever the relationship between Google and Samsung, I had no communication before, during or after the trial with any Google corporate officer or employee. Google's role, if any, and its products and services were completely irrelevant to the work that I did. I was not provided with information regarding Google's role in Apple v. Samsung, nor did I inquire about such."

Quinn Emanuel also represented Google in the same case. Oracle's motion stressed the fact. Dr. Kearl doesn't deny it.

I don't know the man, so he may genuinely be, as he writes, "confident that [he] can assist the court as a neutral economic expert in the present action." But the question is not how he feels. The question is whether Oracle can rely on its chance to make its case on a level playing field. With him, Oracle has every reason to be concerned, no matter how honorable he may be as a person. The court should say "thanks, but no thanks" to his offer to remain involved.

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Appeals court deems Google Books 'fair use' but standard helps Oracle in Android-Java case

The United States Court of Appeals for the Second Circuit has just published its appellate opinion in the Google Books case.

Early last year I wrote that I had initially been rather skeptical of Google's "fair use" argument relating to Google Books, but ultimately I found myself in agreement with Google. Today's appellate opinion says: "This copyright dispute tests the boundaries of fair use." So the appeals court also didn't find this one a clear and simple case. But all things considered it sided with Google.

I use Google Books quite frequently, but for the purpoes of this blog, "fair use" is of particular interest in connection with only one case: Oracle v. Google, the Android-Java copyright infringement case (in which Oracle yesterday brought a motion to disqualify the court-appointed damages expert).

The Second Circuit won't hear an appeal in Oracle v. Google, but this high-profile case might be cited in the further proceedings, and I don't think it helps Google against Oracle in the slightest. Much to the contrary, the standard the Second Circuit outlines is one that Google cannot possibly meet in the Android-Java case. For example, here's a key passage from today's Google Books ruling:

"Google's division of the page into tiny snippets is designed to show the searcher just enough context surrounding the searched term to help her evaluate whether the book falls within the scope of her interest (without revealing so much as to threaten the author's copyright interests). Snippet view thus adds importantly to the highly transformative purpose of identifying books of interest to the searcher. With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs' books [...]"

(emphasis added)

In a nutshell, the above passage says:

• If what Google does basically just has a promotional effect, right holders can't complain that Google helps them make more money.

• But forget about "fair use" if there is a substitutive (rather than promotional) effect.

If one applies that standard to Oracle v. Google, it means that the "fair use" defense won't even survive the summary judgment stage: neither the device makers who have adopted Android nor the end users who (like me) have bought Android devices have looked at Android and then decided to use mobile Java. Instead, Android has displaced mobile Java all the way, with Java licensees like BlackBerry and Nokia having gone down the tubes while Android attained market dominance.

There are various differences between Google Books and the Android-Java case, and rather than talk about all of them at once, I just wanted to highlight the key difference in terms of commercial impact. But I also find the discusssion of "transformative use" interesting. The Second Circuit explains that the strongest fair use cases involve "copying from an original for the purpose of criticism or commentary on the original or provision of information about it." Android does none of that with respect to Java. Google Books is not about criticism or commentary, but one can search for books that contain certain terms, which is also information about the copied books:

"We have no difficulty concluding that Google's making of a digital copy of Plaintiffs' books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involves a highly transformative purpose, in the sense intended by Campbell."

Android's use of the Java APIs had no transformative effect: Java already was available on mobile devices.

Google Books is not the clear case of fair use (and, as one of the "fair use" factors, transformative use) as, for example, a rap parody of a Roy Orbison song (that's what Campbell was about). But compared to the Android-Java situation, it's a very solid case. And if a fair use case that is far stronger than any "fair use" argument could ever be in Oracle v. Google "tests the boundaries of fair use," then there is no way a reasonable jury could find in Google's favor in the Android-Java case.

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Oracle moves to disqualify damages expert because Apple v. Samsung is practically Apple v. Google

The Oracle v. Google copyright retrial won't take place next May because of a scheduling conflict for Oracle's senior management with a trial against HP, and a new tentative date has not been set yet. But preparations are continuing.

The latest motion was filed by Oracle on Thursday evening California time: a motion to disqualify the court-appointed damages expert, Dr. Kearl. Oracle furthermore argues that no other court-appointed damages expert will be needed, given that the case no longer involves patents.

Here's the motion along with its public exhibits (this post continues below the document):

15-10-15 Oracle Motion to Disqualify Damages Expert by Florian Mueller

I'm familiar with the issues Oracle has raised here because I also followed the Apple v. Samsung trial last year (via the Internet). Oracle argues that the second Apple v. Samsung case in the Northern District of California "was effectively Apple v. Google" (that's also what Samsung's trial counsel told the jury). I looked at the patent infringement allegations in that case, and the case was indeed all about Android--unlike the first Apple v. Samsung case, which was partly about Android but also about designs Google had nothing to do with (if anything, it appears Google had even discouraged Samsung from using those designs).

It became known that Google paid for Samsung's legal fees--in connection with two of the patents-in-suit, to be precise, but still.

Dr. Kearl, the court-appointed expert in Oracle v. Google, was not involved with Apple's patent assertions against Android per se--he did not do a rebuttal of Apple's damages claims against Samsung. Instead, he made Samsung's case for damages against Apple. But Samsung wasn't interested in collecting anything from Apple: instead, it wanted to show to the jury how unreasonable Apple's damages claim of more than two billion dollars over a few narrow software patents was. Oracle points to what Apple told the jury Dr. Kearl's involvement was really about:

"[O]ne of the issues in that case was whether, as Apple argued, Samsung used Dr. Kearl’s analysis to give the jury a low damages number in an attempt to make all patents appear to have little value. Or, as Apple asked the jury, why else would Samsung pay experts $5 million to pursue a $6 million claim if not to try to devalue patents?"

Back then, Apple accurately portrayed Samsung's litigation strategy. The strategy worked nevertheless: ultimately the jury (although chosen from Apple's backyard) awarded Apple only about 5% of what it had demanded. Apple was so disappointed as to request a retrial (that appeal is still ongoing).

The fact of the matter is still that Dr. Kearl's work in that case was only in formal terms about a Samsung damages claim against Apple. In reality, it was about Apple's claims against Google's mobile operating system.

The strongest point Oracle makes in my opinion is the following reference to Samsung's trial argument:

"Samsung, for its part, told the jury that Apple's 'billion dollar numbers are completely unsupported,' and that it would 'show [the jury] how properly to calculate a royalty,' by demonstrating how 'Dr. Kearl calculated these damages.' [...] In other words, Samsung's lawyers directly offered Dr. Kearl's analysis as a rebuttal approach on the Android claims, not just as an affirmative calculation on Samsung's counterclaims."

So, yes, "Dr. Kearl was on the Android side of Apple v. Samsung."

Oracle's memorandum outlines the difficulties it would face if it had to ask Dr. Kearl questions in front of the jury. For example, by asking him very critical questions, Oracle could give the jury the impression of the court having endorsed Google's position.

I live in a jurisdiction where party experts have rather little weight and courts must appoint experts on technical issues and damages unless the questions only relate to what is common general knowledge. But in the U.S., party experts are the norm and court experts are a very rare exception. I remember that the mere appointment of a court expert in this case became the subject of reports in the specialized legal press, showing just how unusual this was.

In a couple of cases in which I'm a plaintiff, I also moved to disqualify damages experts because they had ties with the other side. In one case, pending before the Munich II Regional Court (case no. 5 OH 4622/14), my motion was granted a few months ago despite the two defendants' persistent efforts to keep the expert involved. In the other (much smaller) case, a judge at the Amtsgericht Fürstenfeldbruck (a local court, which is below a regional court; case no. 7 H 11/15) denied a motion although the expert himself had already asked to be dismissed, and my interlocutory appeal of that decision is now pending, as is my separate challenge for bias (not related to that decision, though outrageous it was) against that local court judge. The reason I mentioned my own issues with non-neutral court experts is because I feel very strongly that court experts must be neutral, and once there is a way that one party to a litigation can influence the court expert, even if only indirectly, a different expert should be appointed (or none, if none is needed, especially in the U.S., where court-appointed experts are few and far between).

As I wrote last month, I would be extremely surprised if a judge who showed concern in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert--who undoubtedly and massively influences the court and the jury--being aligned with one "camp."

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May 9, 2016 may (or may not) be the Oracle v. Google Android-Java copyright retrial date

On Tuesday afternoon local time, Judge William H. Alsup of the United States District Court for the Northern District of California issued a third case management order in the remand proceedings of the Oracle v. Google Android-Java copyright litigation. The most important part relates to the retrial date.

The final pretrial conference is firmly set for April 27, 2016. However, for the retrial itself, "[t]here is no date in 2016 that the Court could set for Oracle v. Google as a 'firm' trial date." The retrial "is [merely] tentatively set for May 9, subject to the possibility that two other cases with priority also set on that day will settle or plead out." The order then explains that "the Court tentatively expects to bring the Oracle v. Google case to trial as soon as the trials previously set for May 9 are completed or vacated due to settlements or pleas."

In practical terms, this means:

• May 9 is the earliest possibility.

• It will only be May 9 if parties to other cases do things they can't be forced to do (settle, withdraw) or if the other cases are resolved ahead of trial (summary judgment).

• If the May 9 trials don't take too long, Oracle v. Google may start as soon as those other trials are over.

• Theoretically, despite the court's "tentative" plans, this could slip into 2017 for no fault of Oracle or Google.

Another potential uncertainty here (not mentioned in the order) is that there could be delays due to issues with expert reports or as a result of interlocutory appeals or mandamus petitions. There were some expert report do-overs in the original proceedings; there was a mandamus petition by Google (which failed, but it took time) regarding one piece of evidence. I do see the potential for some of that on remand as well. I predict a huge fight especially over jury instructions and how to interpret the Federal Circuit's guidance regarding "fair use." I also see the potential for a pretrial involvement of the appeals court in connection with the court-appointed expert (though I still trust that a judge who even express concern in 2012 about the potential influence of bloggers on court decisions sets a rather high standard for court-appointed experts, a standard that Dr. Kearl cannot possibly meet anymore).

All things considered, I'll mark May 9 on my calendar but with lots of question marks (which, come May, may or may not go away).

The only smartphone patent dispute Google still has to worry about is this case, which is, by now, a copyright-only case. Apple's "thermonuclear war" and Microsoft's five-year effort to force Motorola into an Android patent license have ended in second-class settlements (withdrawals without license agreements). The only two resolutions I can imagine for Oracle v. Google are a license-based partnership between the parties or, maybe, a strategic acquisition of Java by Google (I've seen various tweets in recent weeks and months that suggested this, and while Oracle is more of a buyer than seller of companies, Google has almost three times Oracle's market cap).

The fact that a copyright case has eclipsed Google's patent cases is not because copyright is generally stronger than patents. It's because this case here is about literal copying (a conceded fact in this case), not more or less flimsy allegations of copying as in those patent cases.

Finally, a recommendation for those interested in "fair use" cases: an article by IP litigator Mike Keyes on the "Dancing Baby" case and why it has no bearing on Oracle v. Google.

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Judge denies motion to preclude Oracle from arguing Google's Java copyright infringement was willful

Judge William H. Alsup of the United States District Court for the Northern District of California has just denied a Google motion to preclude Oracle from arguing at next year's retrial that the search giant's infringement of Java copyrights (through incorporation of the declarations of 37 Java API packages into Android) was willful. In its opposition to Google's motion, Oracle had pointed to a particularly "expressive" piece of evidence: a Google-internal email according to which one of its key Android developers found Android's original Java libraries "half-ass at best" and identified a need for "another half of an ass."

The federal judge sees two legal reasons for which Google's motion couldn't succeed. Willfulness would have a bearing on the deduction of certain costs from profits that would have to be disgorged. Should Oracle, however, elect to seek statutory damages instead of, for example, a disgorgement of profits, then up to $150,000 per work infringed, as opposed to the standard maximum of $30,000, would be available. No matter how unlikely Google (and presumably many observers) consider a later Oracle choice to seek statutory damages, Judge Alsup interprets the law as preventing his court "from compelling Oracle to elect its measure of damages early on."

But the outcome isn't all bad for Google. The good among the bad from Google's perspective is that Judge Alsup has simultaneously decided that the trial would be bifurcated. The jury would firstly rule on Google's "fair use" defense without being briefed on Oracle's damages theories; then, if Oracle prevails (which I'm sure it will), damages and willfulness evidence will be presented in the second phase of the trial.

After a "fair use" finding, the next factual issue for the jury to decide will be willfulness. Thereafter, depending on the outcome, cetain damages theories may or may not be presented.

This approach means Google avoids its worst-case scenario, which would have been for the jury to hear about evidence such as the second "half of an ass" before making a decision on the "fair use" defense. I don't know how Google and its lawyers feel about this, but I wouldn't be surprised if they were actually rather pleased. They might have known all along that it was (at best) a long shot to try to avoid any willfulness discussion, so this here may be the best outcome they could have realistically expected.

For now, it appears that Google will be able to present some evidence and argument relating to its equitable defenses. Oracle might use some of the evidence that also has a bearing on willfulness to counter Google's claims that it relied on certain public statements by Sun. If not, Oracle would be substantially disadvantaged as a result of Judge Alsup's pretrial decisions.

So I expect to see some fights further in the process over which pieces of evidence that relate to willfulness are admissible as evidence in the first trial phase anyway (because of some other kind of probative value).

It's worth noting that Judge Alsup was much less concerned back in 2012 about a jury hearing more evidence than necessary. At the time he decided to put Google's defenses, especially "fair use," before the jury even though he ultimately held the infringed declaring API code non-copyrightable (which, as everyone knows, the Federal Circuit reversed and the Supreme Court declined to even take a look at). If he had made his finding before the jury trial, and if it had been upheld (in a parallel universe), the first jury would never even have had to think about "fair use." But this remand is different in some respects, including this one.

A key issue to decide will be whether the court-appointed expert from the first trial, Dr. Kearl, can still testify even though he has in the meantime done work for Samsung, a Google Android partner. I would be extremely surprised if a judge who showed concern in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert--who undoubtedly and massively influences the court and the jury--being aligned with one "camp." I can't imagine that we'll see Dr. Kearl appear at next year's trial, but a formal decision has yet to be made.

Here's the order:

15-09-18 Order Denying Google Motion to Preclude by Florian Mueller

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Google found its own Java libraries "half-ass at best", needed "another half of an ass", took Oracle's APIs

This morning I found out I had actually missed the funniest piece of evidence in that whole Oracle v. Google Android-Java copyright infringement case. I've been following the case ever since it started (it had its fifth anniversary last week) but just learned this morning, when reading a new filing by Oracle in the California remand proceedings, that a Google-internal email (by Android developer Chris Desalvo to his boss, Andy Rubin) stated the following (click on the image to enlarge or read the text below the image):

Subject: Java class libraries

With talks with Sun broken off[,] where does that leave us regarding Java class libraries? Ours are half-ass at best. We need another half of an ass.

-chris

Oracle points to this Google-internal memo (which I found on another blog that covered the 2012 trial but was totally biased in Google's favor, hence got the copyrightability part completely wrong and never wanted to draw attention to this rather telling email) as part of its argument that Google's use of the 37 Java APIs at issue in this copyright infringement case was willful and that Oracle should not be precluded (despite a Google motion in that regard) from telling the jury the whole story about Google's fully-intended infringement. This is the introductory section of the filing (the "ass" part comes after the part I quote here):

"Google is a willful infringer. Google copied and distributed without authorization Sun/Oracle's 37 Java API Packages (and RangeCheck and the eight decompiled files, for that matter). Google knew full well that this was copyrighted material, that it needed to take a license, and that its failure to do so subjected it to legal liability. Indeed, Google's employees were instructed to conceal the scope of the infringement for as long as possible as they 'scrubbed the js' from Android. At no point did anyone inside Google ever suggest that its unauthorized copying was 'fair use'--nor does it have an opinion of counsel justifying its actions.

Google simply didn't care that it was willfully infringing Sun's (and later Oracle's) copyrights. Sun was weak and Google needed to get to market with a mobile solution. When Oracle acquired Sun, Google again had the chance to do the right thing—and this time it faced an opponent that was not hemorrhaging revenue and watching its market capitalization drop through the floor. At that point, Google's executives candidly acknowledged that they needed the Java API Packages, because 'the alternatives all suck.' Google believed it would be 'out of business in 10 years' if it did not succeed in mobile. Still, Google did not do the right thing and take a license. Google stands alone among large companies who commercially exploit the Java Platform without complying with the license terms.

Now Google wants to escape any meaningful consequence for its actions. Google argues that the only consequence of a deliberate wrongdoing that earned it many billions of dollars in profit, severely harmed the Java Platform, and allowed Google to maintain a dominant market share in the search engine advertising market, is the difference between $75,000 and $150,000 in statutory damages. Google tries to convince this Court that it simply makes no difference at all that it knowingly and deliberately took the property of another in violation of the law while earning untold billions in the process.

Google is utterly wrong. Willfulness does matter—even when the infringement is on an epic scale. It matters because for hundreds of years, at law and equity, the courts have consistently recognized that conscious wrongdoers must be deprived of any benefit whatsoever from their knowing choice to disobey the law. The trier of fact has always had the discretion, at law and at equity, to take into account conscious wrongdoing when accounting for profits. The Supreme Court has repeatedly affirmed that rule in numerous contexts, the rule has been applied for decades in all types of intellectual property cases, and Congress legislated that rule when it explicitly adopted the rationale of one of those Supreme Court copyright cases, Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940), in Section 504(b) of the 1976 Copyright Act. The jury is entitled to consider it here. Accordingly, Oracle proposes herein both a verdict and a jury instruction that properly address this issue."

The section quoted above makes reference to "fair use," the defense because of which the appeals court ordered a remand. This week Steven Huwig, a professional software developer (who among other things wrote software for a large New York bank), said the following about Google's "fair use" defense on Twitter, which suggests (without him using the same terminology) that he still considers the Android class libraries "half-assed":

"Oracle v. Google in a nutshell: Android is like a parody of Oracle JDK, but there's no fair use exception for this kind of parody."

Parodies in general do fall under the "fair use" exception, but not unintended ones.

If you're interested in more detail on Oracle's lawyers' legal argument as to why they should be allowed to present willful-infringement evidence to the retrial jury, here's the filing:

15-08-20 Oracle Opposition to Google Motion to Preclude Willfulness Evidence by Florian Mueller

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Oracle effectively says Google jumped gun with Supreme Court petition in Android-Java copyright case

James Niccolai of the IDG News Service was first to obtain a copy of Oracle's response to Google's petition for writ of certiorari (request for Supreme Court review) in the Android-Java copyright case. Here's the brief (this post continues below the document):

14-12-08 Oracle Response to Google Petition for Writ of Certiorari by Florian Mueller

This is one of those documents that are most interesting when read backwards. The order in which it lays out Oracle's argument against Google's petition makes sense for those looking at the case for the first time, but after more than four years of coverage on this blog, I guess most of you already know the history of the case and the fact pattern that gave rise to this case in the first place. If the latter is new to you, or if you're looking for a refresher, the "Ann Droid" story Oracle told to the Federal Circuit is a more lively version of it. Then Oracle goes on to explain why the law has always been what it is, and I have viewed it that way for a long time, including a time when I was at loggerheads with Oracle. There's a simple plausibility test for the whole non-copyrightability claim: look at whatever cases Google and its allies show you in which copyrightability was denied (and that's different from finding in favor of fair use); then look at whether the affected material was a similar combination of quantity and originality as in the case of the Java API declaring code, and you'll find in each case that there was no such combination--and you can find numerous examples of cases in which material way less worthy of protection than the Java API declaring code was held copyrightable by U.S. courts. Life's too short to be a broken record, so I'll focus on what's new and what it means in strategic terms. And to that end, it happens to be most fruitful to start at the end.

Interlocutory appeal: why now? why not later?

The very last section argues that Google's interlocutory appeal to the Supreme Court was premature. An interlocutory appeal is an appeal prior to a final judgment. Here, the alternative for Google would have been to let the remand to California happen, to have the judge or another jury decide on "fair use", and to further appeal after losing the case. (Oracle's appeal to the Federal Circuit was not interlocutory because, if it had not been brought, the case would have been over.)

When Google chose not to ask the Federal Circuit for a rehearing, I was already wondering whether Google would focus on "fair use." Maybe Google was also thinking about the pro's and con's then, but at any event it decided it wants to take this case directly to the Supreme Court.

That, all by itself, does not mean Google's petition will fail. As the SCOTUSblog wrote in 2005, "the importance of the interlocutory status of a case is often grossly overstated." In reality, "[t]he Court regularly grants cert in non-final cases that raise important issues even when the proceedings on remand could illuminate the record in relevant respects and could affect the legal issue presented."

In this case, there is an extraordinarily strong connection between the questions of copyrightability and fair use, and that is so because of the way Google elected to argue the case in district court and on appeal. Oracle is right that Google can't seriously claim the software industry needs a quick resolution of an alleged "circuit split" (inconsistencies between different regional appeals courts) that it claims has existed for decades when the U.S. software industry, and especially the software industry in the Ninth Circuit (i.e., the West Coast, meaning mostly Silicon Valley and Microsoft), undoubtedly thrived. Still, the interlocutory status of the case doesn't guarantee the failure of Google's petition (nor does it make things any easier for Google given the huge number of petitions the Supreme Court receives).

The reason I'm interested in this has nothing to do with what the Supreme Court may or may not decide. Other factors are going to have more weight in that regard, so in case the Supreme Court denies the petition, the interlocutory status probably won't have been the reason. The most interesting aspect is that Google, to say it cautiously, does not quite exude confidence in its "fair use" defense with this tactical choice. It's old news that I don't buy the "fair use" defense here. But if Google really believes in it, why doesn't it just let the case go back to district court, try to win the "fair use" debate based on its "compatibility" argument, and if Oracle appealed again, Google could still try to take the copyrightability part, if it became necessary, to the Supreme Court? This is conjectural but the more I think about it, the more I feel that Google is not nearly as convinced of its two defenses-- non-copyrightability and "fair use"--as it claims and as its supporters claim. The Federal Circuit provided some guidance on "fair use" that ups the ante for Google, and what will up the ante to an even greater extent is that its equitable defenses failed, enabling Oracle on remand to ask the district court to preclude Google from making certain arguments that the first jury (with a bright foreman who couldn't dissuade other jurors from an illogical stance) probably thought had a bearing on "fair use" (Schwartz testimony etc.).

I can't see a winning strategy here for Google with respect to copyrightability, and its only chance with fair use is to get another jury involved that doesn't figure it out, though it will be easier to figure out next time. I wouldn't put it past Google that this here is mostly about delaying the resolution of the case. Nonsensical arguments like saying the software industry (which is mostly on Oracle's side anyway) needs this resolved immediately don't look strong.

There's another indication (that is not in the Supreme Court briefs) of Google's lack of faith in its defenses. Yesterday, Google finally released the first official non-beta version of Android Studio, version 1.0. The Android developers on the team I'm leading and I really like Android Studio (in light of Apple's Swift, Google should do even more to increase developer productivity). But somehow Google is cautious about directly integrating Java material into Android Studio, as this Stack Overflow discussion shows (it slightly predates version 1.0, but the situation is still the same). This doesn't solve Google's entire Java copyright problem. Still, what reason other than a desire to at least limit the extent of the problem would Google have to deliver an IDE--which means Integrated Development Environment--without fully integrating Java, if it's supposedly for the taking?

Google's petition addresses only one of the two reasons for which the Federal Circuit agreed with Oracle

The first subsection of the last section of Oracle's brief is short--merely two paragraphs--but raises an important issue:

"Although one would never know it from Google's petition, the court of appeals found that Oracle's work is protected on two separate bases: (1) the original declaring code and (2) the packages' creative structure and organization."

This is correct. Here's a quote from the Federal Circuit's own summary of its reasoning:

"[W]e conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages are entitled to copyright protection."

Oracle notes that Google's petition is all about the declaring code per se and "does not address the structure-and-organization rationale." According to Oracle, the failure to address an adequate alternative basis for affirmance means the petition must be denied.

Google's request for Supreme Court review (unlike certain amicus curiae briefs) is all about the functional nature of code. However, as Oracle writes in its response, "[w]hatever might be said about declaring code, the structure and organization is not used 'to operate the methods, i.e., the pre-written programs.'"

This potential reason for denying Google's petition is closely related to what Oracle says in the next subsection: Google now bases its theory on "system" and "method of operation" in the cert petition "[b]ut in the court of appeals, Google made no such argument."

I've said it before: Google's approach does not exude confidence. In its quest for some reason to get 7,000 lines of highly creative (and creatively-structured) material held uncopyrightable, it isn't consistent.

It would be easy for the Supreme Court to deny Google's petition

The previous paragraphs discussed potential reasons for a denial of Google's petition beyond the simple fact that such a massive body of highly creative (and creatively-structured), original, expressive material has always been and will always have to be copyrightable.

This article discusses how litigants are most likely to succeed in opposing a cert petition and says the following about the top court's selection criteria:

"Instead of seeking merely to correct erroneous decisions, the Court is looking, Chief Justice Rehnquist has written, for cases 'involving unsettled questions of federal constitutional or statutory law of general interest.'"

Google's primary argument for presenting an "unsettled" question is that the Supreme Court was divided a long time ago over 50 words used as menu items. As Oracle's response to the petition clarifies, that is not a question of software copyrightability. The way I view it is (apart from the question of whether we're talking about text or code) that if the Supreme Court didn't unanimously hold those menu items uncopyrightable, Cisco is fine with its 500 multi-word commands, but even those multi-word commands are very simple if you compare them to some of the more complex lines of declaring code in Oracle's Java APIs, such as this example cited by Oracle in its brief:

public abstract void verify (PublicKey key, String sigProvider)
throws CertificateException, NoSuchAlgorithmException, InvalidKeyException, NoSuchProviderException, SignatureException

That's a lot longer than the Math.Max example Google and its supporters like to point to (and which may have helped Google to confuse the district judge).

Oracle's brief also notes that one can't compare (as Google did in its petition) the QWERTY keyboard layout (the order of a couple dozen keys) to declaring code like the line above.

Getting back to Judge Rehnquist's criteria, it has to be a combination of "unsettled" and "of general interest." Unless one lowers the standard, there is no such combination here.

When I read Google's brief and the amicus briefs urging a review, I can't help but feel that they base their hopes on factors that reside at a meta-level rather than the factual, logical level. They try to make this a case that is all about interoperability, and I'll talk about that in the next section of this post. They try (some more overtly, some more subtly) to capitalize on what they believe to be friction between the Supreme Court and the Federal Circuit.

It won't be easy for them to get a Supreme Court review on that basis, but even if they did, I still can't see how they could ultimately prevail at that meta-level.

"Partial interoperability" is a contradiction in terms, says Oracle

While not putting those Sony and Sega fair use cases front and center at this juncture, Google still tries to leverage the (important) concept of "interoperability" (or its synonym, "compatibility") to get the Supreme Court interested. Oracle makes a few references to this in its brief that I wish to highlight.

In connection with "overwhelming [record evidence] that Android is incompatible with the Java platform," Oracle describes the notion of "partial interoperability" as a "contradiction in terms." If products are interoperable, they work together. If they are not, they don't. They can obviously work together to varying degrees, but the problem in this case is that what Google and the district judge meant by "partial interoperability" would more accurately be labeled as "familiarity." Interoperability happens (or doesn't happen) at the technical level, while familiarity is a state of mind. Some will argue that one can make changes to Java code in order to make it run on Android, and vice versa. But apart from this kind of definition having no boundary, it involves some additional work to be performed by human beings.

Google didn't advance the cause of interoperability when it sought to shut down Microsoft products implementing two industry standards (a jury thought this behavior warranted a $14.5 million damages award). It won't do the concept a favor by trying to stretch the definition of the term beyond recognition. So I, too, believe that "partial interoperability"--the way the district court and Google meant it--is a logical fallacy.

Oracle also addresses Google's argument that Oracle's asserted code must be devoid of copyright protection in order to prevent a "lock-in":

"[B]ecause Google deliberately made Android incompatible, when a programmer writes for Android, that programmer and program are locked into Android and locked out of the Java platform.

In the policy context, Oracle firmly rejects Google's (and Google's friends') argument that such material as the Java API declaring code would have to be free for the taking in order to enable innovation:

"Google is wrong that unauthorized copying of others' code is just how the software industry works."

Oracle doesn't say that incremental innovation shouldn't occur. The question is just on which basis. Building on top of what others create and making products work together with existing ones, or making them run on existing platforms is fine, as long as you write your own code. Using what others created is fine if you take a license. But "[t]heft is theft whether the work is a novel or complex software." Except, of course, if the "fair use" defense applies (which could be evaluated very quickly if the Supreme Court denied Google's petition).

Free software advocates speak out against the Federal Circuit and Google's petition

The Free Software Foundation and the Software Freedom Law Center have filed an amicus brief that technically (but not substantively) supports Oracle. The free software advocates engage in a balancing act. They are on Google's side with respect to copyright and with respect to copyleft, but they have a procedural preference for denial of Google's cert petition.

I've read their brief and would just like to explain what I believe their strategy is, and the philosophical and legal issues involved.

Richard Stallman, the founder and president of the FSF, leads the life of an itinerant preacher and one can only admire him for how committed he is to his cause. I've disagreed with Eben Moglen, who used to be the FSF's counsel for some time and still works closely with the FSF through his Software Freedom Law Center, on more than one occasion, but he's always extremely interesting to listen to.

Tim O'Reilly described the problem with the free software philosophy more than seven years ago:

"I continue to feel that the focus of the free software movement on 'software' rather than on 'freedom' is the real lost opportunity. [...] Focusing only on free software is as limiting as focusing on free hardware. It's freedom that matters."

The GPL licensing regime puts the freedom of program code above the freedom of developers. The copyleft principle requires all derivative works including GPL-licensed code to be made available under the GPL. This ensures that one cannot enjoy the freedoms granted to him by the GPL and then publish a derivative work under, for example, a proprietary, closed-source license. By contrast, non-copyleft open source licenses don't guarantee that the related code will always remain available on the same terms, but they give commercial software developers the freedom to incorporate it into their products.

The GPL is not about freedom-freedom. It's about enforceable freedom. And in order for anyone to enforce the GPL, the legal system as it stands (where copyleft is not enshrined in statutory law) only offers copyright for a basis. Copyleft wouldn't work without copyright enforcement. Yes, this is an oxymoron.

The dependence of copyleft on copyright is why Richard Stallman counterintuitively criticized the Pirate Party for proposing to limit copyright terms. RMS (he's frequently referred to by his initials) warned that this would allow "marauding giants" to incorporate free software into non-free software after only a few years. For someone advocating general freedom as opposed to just software freedom, this wouldn't be a big deal: one could simply let both approaches, free software and commercial software, compete. But that's not acceptable to the free software community.

RMS and Eben Moglen are copyright minimalists. They want just the level of copyright protection that is needed to make the GPL work in principle. Anything beyond that is undesirable to them. The Pirate Party proposed a copyright reform that would fall short of what the GPL needs. But other than that, less copyright is more if you ask RMS or Professor Moglen.

And now comes the part where they are demonstrably inconsistent. While they generally don't want commercial software developers to incorporate free software into their products ("marauding giants"), and while Richard Stallman considers commercial software to be immoral, they still know that the popularity of Linux (GNU/Linux as they would call it) depends on the availability of non-GPL software (other open source software as well as commercial software) for Linux.

If they were 100% principled, they'd have to like the Federal Circuit's clarification of longstanding principles of U.S. copyright law because it can prove useful in GPL enforement, or at least they should be neutral about it because free software is not made any less free by it. But their objective now is to describe the Federal Circuit opinion (incorrectly) as an outlier that shouldn't have any weight going forward. That's what their brief is really about. They don't want the Supreme Court to look at it because (without saying so) they're afraid of the outcome, knowing that the law is what it is and has been for a long time. If the Supreme Court granted certiorari, the free software guys might file another brief or just hope that what they submitted yesterday would help Google at that stage. But ideally, they just want the process to end. They want to have their cake and eat it. They try hard (but in my eyes fail) to hide the fact that this initiative of theirs runs counter to free software philosophy and is driven by the less than principled desire to let free software like Linux power non-free software like Android.

One of their claims is that the copyrightability question plays no role in this dispute because Google could always use the relevant material under the GPL. The commercial reality is that Google doesn't want to release Android under the GPL. It's a complete non sequitur to me in the FSF/SFLC brief how Google could use the Java API declaring code under the GPL, incorporate it deeply into its own products, and not have a copyleft "share-alike" obligation. So the free software brief is more of a mystery than it provides clarification. The greatest mystery is how the GPL would moot the question of past damages. But frankly, it's not worth worrying about.

The FSF/SFLC brief does, however, show to the Supreme Court that even some of those who don't like the Federal Circuit opinion would like the case to go back to district court now for a "fair use" analysis.

I don't know if any other amicus briefs will be filed. Presumably the software industry at large is just fine with the Federal Circuit ruling, which means business as usual.

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Google preparing to appeal Oracle's copyright win to Supreme Court, Oct. 6 deadline for petition

Last month Google decided not to seek an en banc (full-court review) of Oracle's appellate victory in the high-profile Android-Java copyright case (initial reaction to ruling, follow-up, and detailed refresher Q&A), resulting in a formal mandate to the district court. At the time I wrote it was "still not certain that proceedings [would] resume in district court in the very short term," given that "Google [could] file[] a petition for writ of certiorari with the Supreme Court of the United States." And that's what's apparently going to happen now (as always, absent a settlement).

On July 9, Google submitted to the Chief Justice of the United States an application to extend the time to file a petition for a writ of certiorari from August 7, 2014 (i.e., three months after the Federal Circuit opinion) to October 6, 2014. The Chief Justice granted the application the following day (July 10).

I have explained before (see the links further above) why I think the Federal Circuit got the copyrightability decision absolutely right. But Google and a number of Google-aligned individuals and organizations apparently can't accept the Federal Circuit decision as the last word. Whether the Supreme Court will ultimately hear the case is another question. A high-profile case it definitely is, and an important issue -- but the Federal Circuit, unlike the district judge, correctly interpreted the law (including the Ninth Circuit opinions in the Sega and Sony fair-use cases), and from a policy point of view, this outcome is in the interest of honest software developers seeking a reasonable degree of intellectual property protection for the most creative parts of their creations. Copyrightability is neither the only level at which interoperability can be ensured nor the best option because denying copyrightability to highly-creative, original, declaring API code would do way too much damage to software copyright. The best decision the Supreme Court will be able to make after Google files its petition is to deny certiorari in order for the case to resume in district court at the earliest opportunity.

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