Amicus Brief of Intellectual Property Law Professors in Support of Google and Affirmance ~pj

Bit by bit, the amicus briefs on behalf of Google in the Oracle v. Google appeal about the uncopyrightability of Java APIs are becoming available. They are all interesting in different ways, but they all agree -- Oracle is wrong on the law and if it prevails, it will be a sad day for innovation. Copyright protection doesn't extend to procedures, processes, systems, or methods of operation, and it shouldn't.

This brief, on behalf of 39 intellectual property professors, and written and signed by Pamela Samuelson, outlines three legal errors they all believe Oracle is making:

• that Oracle takes an unduly narrow view of 17 U.S.C. § 102(b)

• it takes an overbroad view of the copyrightability of the structure, sequense and organization, or SSO, of computer programs -- so did SCO, I can't help but add, also represented by David Boies, and SCO's larks were partly funded by Microsoft, who is supporting Oracle, and

• it misunderstands the merger doctrine as it applies to interoperability.

Here's where you can find the "Brief of Amici Curiae Intellectual Property Professors in Support of Defendant-Cross Appellant and Affirmance." That's the title of the brief, and it is available on SSRN.

Oracle has struck an ominous chord with its claims, and the alarm they and other amici are expressing is sincere and deep. And what they are saying in chorus is: Oracle is wrong about the law on APIs. In fact, one case Oracle hangs its hat on, Apple Computer, Inc. v. Franklin Computer Corp., isn't binding precedent for Oracle, the brief highlights. It's a Third Circuit case (it was also merely dicta and the facts were distinguishable), and Oracle's case is in the Ninth. The court of appeals is supposed to give deference to the Ninth Circuit precedent. And dicta isn't precedential anyway. The cases that are more binding are cases Oracle ignores, like Computer Associates Int'l, Inc. v. Altai, Inc. and Sega Enterprises, Ltd. v. Accolade, Inc., and under their teaching, "the Java APIs should be deemed unprotectable by copyright law" because the district court found that these Java APIs were necessary to achieve interoperability.

Further, the brief cites Sony Computer Entertainment, Inc. v. Connectix, Inc. , where Connectix emulated the Sony functionality of the Playstation, but the court ruled that the Sony interface procedures were unprotected elements, even though the Connectix software "aimed to be a substitute for the plaintiff's product" and was not fully compatible with the Playstation games. That should put a sock in Oracle's mouth about compatibility, methinks. It keeps saying that Java and Android are not fullly compatible. The answer to that from these IP law professors is, the Ninth Circuit already handled a case like that, and it didn't alter the unprotectability of the interfaces.

They ask the appeals court to affirm Judge William Alsup's decision:

Oracle has invited this Court to ignore or radically reinterpret more than two decades of copyright jurisprudence concerning the application of copyright law to elements of computer programs that are essential to achieving interoperability among programs. This Court should decline this invitation.