`================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ---------------------------------
`
`GOOGLE INC.,
`
`v.
`
`ORACLE AMERICA, INC.,
`
`Petitioner,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The United States Court Of Appeals
`For The Federal Circuit
`
`--------------------------------- ---------------------------------
`
`BRIEF OF AMICI CURIAE THE OPEN SOURCE
`INITIATIVE, MOZILLA CORP., AND ENGINE
`IN SUPPORT OF PETITIONER
`
`--------------------------------- ---------------------------------
`
`JASON M. SCHULTZ
`(Counsel of Record)
`NYU TECHNOLOGY LAW AND POLICY CLINIC
`NYU SCHOOL OF LAW
`245 Sullivan Street, 609
`New York, NY 10012
`Telephone: (212) 992-7365
`Jason.schultz@exchange.law.nyu.edu
`
`Counsel for Amici Curiae
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`i
`
`TABLE OF CONTENTS
`
`6
`
`7
`
`3
`6
`
`Page
`TABLE OF AUTHORITIES ...................................
`iii
`INTERESTS OF AMICI CURIAE .........................
`1
`INTRODUCTION AND SUMMARY OF ARGU-
`MENT ..................................................................
`ARGUMENT ...........................................................
`
`I. The Federal Circuit’s incorrect reading of
`§ 102(b) threatens to undermine the open
`source software industry, an important
`driver of creativity and innovation .............
`A. APIs have the functional purpose of
`creating interoperability and compat-
`ibility between computer programs ......
`B. Open source use and reimplementation
`of APIs lowers the cost of software de-
`velopment and enables more diverse
`participation, greater competition, and
`expanded consumer choice in the soft-
`ware industry ........................................ 12
`C. Facilitating the existence of successful
`open source alternatives fulfills copy-
`right’s constitutional purpose of pro-
`moting creativity and innovation, and
`the Federal Circuit’s ruling threatens a
`thriving open source industry’s ability
`to realize those objectives ...................... 14
` II. The Federal Circuit’s ruling breaks with
`well-established and well-reasoned prece-
`dent that open source programmers have
`relied upon for decades ................................ 19
`
`
`
`ii
`
`TABLE OF CONTENTS – Continued
`
`Page
` III. The technological world today would look
`vastly different if the Federal Circuit’s
`ruling had been in effect following Lotus,
`and the consequences would affect many
`products that millions use daily .................. 23
`CONCLUSION ....................................................... 27
`
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347
`(2014) ......................................................................... 2
`Baker v. Selden, 101 U.S. 99 (1879) ................... passim
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
`U.S. 340 (1991) ........................................................ 26
`Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki
`Co., 535 U.S. 722 (2002) .......................................... 22
`Jacobsen v. Katzer, 609 F. Supp. 2d 925 (N.D.
`Cal. 2009) .................................................................. 2
`Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807
`(1st Cir. 1995) ..................................... 19, 21, 22, 23, 27
`SCO Group, Inc. v. Int’l Bus. Machines Corp.,
`No. 2:03 CV 294 (DAK), 2005 WL 318784 (D.
`Utah 2005) ................................................................. 2
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. art. I, § 8, cl. 8 ............................. 14, 15, 26
`
`STATUTES
`17 U.S.C. § 102(b) ............................................... passim
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`OTHER AUTHORITIES
`Amanda McPherson et al., Estimating the Total
`Development Cost of a Linux Distribution,
`The Linux Foundation (Oct. 2008) ......................... 15
`Amazon Web Services (AWS) and Eucalyptus
`Partner to Bring Additional Compatibility
`Between AWS and On-Premises IT Environ-
`ments, Eucalyptus (Mar. 22, 2012) ......................... 25
`Black Duck Software Estimates Development
`Cost of Open Source Software at $387 Billion,
`Black Duck Software (Apr. 14, 2009) ..................... 15
`Branford L. Smith & Susan O. Mann, Innova-
`tion and Intellectual Property Protection in
`the Software Industry: An Emerging Role for
`Patents, 71 U. Chi. L. Rev. 241 (2004) .................... 14
`Brian Proffitt, What APIs Are and Why They’re
`Important, Readwrite (Sept. 19, 2013) ..................... 7
`Cade Metz, Facebook, Google, and the Rise of
`Open Source Security Software, Wired (Oct.
`29, 2014) .................................................................. 17
`Clipboard, Windows Dev Center – Desktop
`(last visited Oct. 25, 2014) ........................................ 8
`Dave Rosenberg, Study Finds “Free Open Source
`Software Is Costing Vendors $60 Billion,”
`CNET (Apr. 16, 2008, 11:50 AM) ............................ 18
`Dirk A.D. Smith, Exclusive: Inside the NSA’s
`Private Cloud, CIO (Sept. 29, 2014, 6:00 AM) ....... 17
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Download Stats, Apache Open Office (last vis-
`ited Oct. 25, 2014) ................................................... 24
`Efthimios Parasidis, A Sum Greater Than Its
`Parts?: Copyright Protection For Application
`Program Interfaces, 14 Tex. Intell. Prop. L.J.
`59 (2005) .................................................................... 7
`Fahmida Y. Rashid, Open-Source Software
`Gives Competitive Advantage, eWeek (Feb. 8,
`2011) ........................................................................ 17
`Heather J. Meeker, The Open Source Alterna-
`tive (2008) ................................................................ 16
`Iain Dey, Barclays Snubs Tech Titans to Save
`Billions, Sunday Times (Jan. 6, 2013) ................... 17
`Investor Relations: Financial Statements, Red
`Hat (last visited Oct. 25, 2014) ............................... 15
`Jillian D’Onfro, Here’s A Reminder Just How
`Massive Amazon’s Web Services Business Is,
`Bus. Insider (June 16, 2014, 9:33 AM) ............. 24, 25
`Joe Wilcox, Will OS X’s Unix Roots Help Apple
`Grow?, CNET (May 21, 2001, 12:05 PM) ............... 16
`Jonathan Band & Masanobu Katoh, Interfaces
`on Trial 2.0 (2011) ................................................... 22
`Memorandum from David M. Wennergren,
`Assistant Secretary of Defense, Department
`of Defense, Chief Information Officer to the
`Secretaries of the Military Departments
`(Oct. 16, 2009) ......................................................... 17
`
`
`
`vi
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Michael F. Morgan, The Cathedral and the Bi-
`zarre: An Examination of the “Viral” Aspects
`of the GPL, 27 J. Marshall J. Computer &
`Info. L. 349, 422 (2010) ........................................... 20
`Open Source Initiative, The Open Source Ini-
`tiative (last visited Nov. 3, 2014) .............................. 6
`Opening Expert Report of Dr. Owen Astrachan,
`Oracle Am., Inc. v. Google Inc., 872 F. Supp. 2d
`974 (N.D. Cal. 2012) (No. C 10-03561 WHA) ......... 16
`Pekka Abrahamsson et al., Agile Software De-
`velopment Methods: Review and Analysis
`(2002) ....................................................................... 13
`Projected Revenue of Open Source Software
`from 2008 to 2020, Statista (last visited Oct.
`25, 2014) .................................................................. 18
`Quentin Hardy, Active in Cloud, Amazon Re-
`shapes Computing, N.Y. Times, Aug. 27, 2012 ...... 25
`Red Hat’s Decade of Collaboration with Govern-
`ment and the Open Source Community, Red
`Hat (May 11, 2012) .................................................. 18
`StatCounter Global Stats: Top 5 Desktop, Tab-
`let, & Console Browsers from Sept. 2013 to
`Sept. 2014, Statcounter (last visited Oct. 25,
`2014) ........................................................................ 15
`Tim O’Reilly, Thoughts on the Whitehouse.gov
`Switch to Drupal, O’Reilly (Oct. 25, 2009) ............. 17
`
`
`
`1
`
`INTERESTS OF AMICI CURIAE1
`The Open Source Initiative (OSI) is a nonprofit
`
`organization founded in 1998 in order to promote the
`benefits of open source software through both educa-
`tion and advocacy. OSI also acts as a standards body
`by maintaining the Open Source Definition, an indus-
`try standard that encourages trust among developers,
`users, corporations, and governments, and that facil-
`itates open source cooperation. The maintenance of
`this standard allows for the flourishing of alterna-
`tives to proprietary software that expand choice in
`the marketplace, spurring competition and promoting
`progress of computer arts and sciences.
`
`OSI approves and denies open source licensing
`
`applications from companies and organizations in-
`cluding Apple, Computer Associates, the European
`Union, IBM, Lucent, Microsoft, Mozilla, NASA,
`Nokia, Oracle, Ricoh, and SUN Microsystems.
`
` Members of OSI’s board are leaders in technol-
`ogy, software, and open source communities. Such
`members include the Debian Project, which produces
`one of the most popular Linux distributions, and the
`Wikimedia Foundation, which hosts Wikipedia.
`
`
`1 Parties’ counsel were given ten days notice of amici’s
`
`intent to file this brief pursuant to the requirements of Rule
`37.2(a). Copies of the letters indicating consent have been filed
`with the Clerk of this Court. No counsel for either party has had
`any role in authoring this brief, and no persons other than amici
`and their counsel have made any monetary contribution to the
`preparation or submission of this brief. See Rule 37.6.
`
`
`
`2
`
`OSI’s interest in this litigation is noncommercial,
`
`and it maintains a stalwart public-interest-oriented
`mission and vision involving open source software.
`OSI’s expertise in open source and computer technol-
`ogy fields is reflected in its co-authorship of recent
`relevant briefs amicus curiae including Alice Corp. v.
`CLS Bank International, 134 S. Ct. 2347 (2014),
`Jacobsen v. Katzer, 609 F. Supp. 2d 925 (N.D. Cal.
`2009), and SCO Group, Inc. v. International Business
`Machines Corp., No. 2:03 CV 294 (DAK), 2005 WL
`318784 (D. Utah 2005).
`
` Mozilla Corporation has been a pioneer and ad-
`vocate for the Web for more than a decade. Mozilla
`creates and promotes open standards that enable in-
`novation and advance the Web as a platform for all.
`Today, hundreds of millions of people worldwide use
`Mozilla Firefox to discover, experience, and connect to
`the Web on computers, tablets, and mobile phones.
`
`Engine is a technology policy, research, and advo-
`
`cacy organization that bridges the gap between pol-
`icymakers and startups, working with government
`and a community of more than 500 high-technology,
`growth-oriented startups across the nation to support
`the development of technology entrepreneurship. En-
`gine creates an environment where technological in-
`novation and entrepreneurship thrive by providing
`knowledge about the start-up economy and construct-
`ing smarter public policy. To that end, Engine con-
`ducts research, organizes events, and spearheads
`campaigns to educate elected officials, the entre-
`preneur community, and the general public on issues
`
`
`
`3
`
`vital to fostering technological innovation. Engine
`has worked with the White House, Congress, federal
`agencies, and state and local governments to discuss
`policy issues, write legislation, and introduce the tech
`community to Washington insiders.
`
`--------------------------------- ---------------------------------
`
`INTRODUCTION AND
`SUMMARY OF ARGUMENT
`Every year, hundreds of thousands of open source
`
`programmers create millions of lines of software code.
`Because the code is open, it is available for the world
`to see, learn from, and use under extremely liberal
`conditions. Open source software has resulted in
`huge contributions – both to commercial and non-
`commercial firms and communities – providing up-
`wards of $50 billion in annual revenue. There are
`over 4.9 billion lines of open source code currently
`in existence, the estimated value of which exceeds
`$387 billion.
`
`Yet in order for open source to thrive, program-
`
`mers need to reuse and reimplement existing Appli-
`cation Programming Interfaces (APIs) – the technical
`standards according to which computer programs in-
`teroperate with each other. Without such interopera-
`bility, open source programs lose much of their value
`as creative and competitive alternatives to proprie-
`tary – or “closed source” – programs. By making the
`information needed for interoperability available to
`all and thereby making the choice to switch software
`
`
`
`4
`
`both cost-effective and frictionless, APIs ensure that
`consumers have open source alternatives to proprie-
`tary software. In misinterpreting 17 U.S.C. § 102(b)
`and holding APIs copyrightable, the Federal Circuit
`struck a severe blow to the future of open source
`software, limiting its ability to compete within soft-
`ware markets dominated by single proprietary play-
`ers. Amici ask this Court to grant certiorari and
`correct this mistake that undermines the constitu-
`tional purpose of copyright, the status quo in copy-
`right law, and a significant sector of our high tech
`economy.
`
`Imagine a single company owning the right to
`
`control the way appliances plug into electrical outlets.
`If a company wanted to build a new toaster, no mat-
`ter how innovative, affordable, or otherwise competi-
`tive, it would still need to ask permission from the
`outlet owner to make the toaster compatible with the
`wall’s sockets. And if the outlet company already
`made toasters? Old, clunky, and poorly designed, they
`would still dominate the market if they were the only
`appliance able to plug into the wall.
`
`This is the power of interoperability – and this is
`
`how APIs work. APIs are the outlet sockets of the
`software world, and those who control them often
`dictate how software works in particular areas of
`technology. While some control over APIs is possible
`under patent law, Congress and this Court have long
`recognized that the law cannot and should not cede
`control of such technological “rules of the road” to
`copyright owners. Both § 102(b)’s exclusion of any
`
`
`
`5
`
`“method of operation” from copyright’s purview and
`this Court’s seminal decision in Baker v. Selden, 101
`U.S. 99 (1879), preclude this outcome.
`
`The Federal Circuit’s decision below upends the
`
`long-standing status quo that programmers have
`relied on for decades. It directly contradicts Baker by
`improperly holding that APIs are not uncopyrightable
`methods of operation like the accounting tables in
`that case. APIs are not computer programs, but the
`Federal Circuit treats them as such. Under the
`Federal Circuit’s rule, the simple action of saving a
`word document would no longer be as straightforward
`as clicking “File” and selecting “Save” because that
`menu hierarchy would be owned and copyrightable.
`Every program, open source or closed, would have to
`create some new way of helping a user save a docu-
`ment instead of adopting the tried and true standards
`that users already understand. And the inefficient
`and wasteful consequences of the Federal Circuit’s
`rule would not be limited to software user interfaces –
`many of the open source alternatives in cloud compu-
`ting, mobile mapping, and online encyclopedias could
`come under legal threat if they tried to create in-
`teroperability with the API methods of their competi-
`tors.
`
`For these reasons, and for the reasons that
`
`follow, this Court should grant certiorari.
`
`--------------------------------- ---------------------------------
`
`
`
`
`
`6
`
`ARGUMENT
`I. The Federal Circuit’s incorrect reading of
`§ 102(b) threatens to undermine the open
`source software industry, an important
`driver of creativity and innovation.
`Application Programming Interfaces (APIs) are a
`
`critical component of software development. This is
`especially true for open source software development,
`a segment of the industry that has become a key
`driver of creativity and innovation. Open source soft-
`ware is “software that can be freely used, changed,
`and shared . . . by anyone.” Open Source Initiative,
`The Open Source Initiative, http://opensource.org (last
`visited Nov. 3, 2014), http://opensource.org. The Fed-
`eral Circuit’s ruling that APIs are copyrightable
`would damage open source software’s viability and
`conflict with the express constitutional purpose of
`copyright.
`
`The Federal Circuit, by reading § 102(b)’s prohi-
`
`bition of copyright protection for methods of operation
`out of the Copyright Act, severely limited the ability
`of open source programmers to build cost-efficient
`programs that compete with proprietary ones. Open
`source programming relies on the reimplementation
`of APIs to build new interoperable software. By al-
`lowing copyright protection of APIs, the Federal Cir-
`cuit’s ruling makes reimplementation exceedingly
`risky, and under certain circumstances, unlawful.
`
`
`
`
`
`7
`
`A. APIs have the functional purpose of cre-
`ating interoperability and compatibility
`between computer programs.
`In order to contextualize the scope and impact of
`
`the Federal Circuit’s ruling, it is important to un-
`derstand certain technical aspects of APIs. APIs
`are exact specifications prescribed by a program or
`operating system that enable communication between
`various aspects of a computer program or between
`computer programs. Efthimios Parasidis, A Sum
`Greater Than Its Parts?: Copyright Protection For
`Application Program Interfaces, 14 Tex. Intell. Prop.
`L.J. 59, 63-64 (2005). However, APIs are not – as the
`Federal Circuit treated them – computer programs.
`Many of the most popular services of today, such as
`Google Maps or Twitter, make use of APIs to increase
`access to their services by third-party software pro-
`grams and websites. For example, Google Maps offers
`an API that enables websites like Yelp.com to display
`the location of a popular restaurant on a Google Map
`instead of Yelp needing to write its own map program
`from scratch. See Brian Proffitt, What APIs Are and
`Why They’re Important, Readwrite (Sept. 19, 2013),
`http://www.readwrite.com/2013/09/19/api-defined. The
`Yelp website simply communicates with Google Maps
`and asks for map data on the specific location of the
`restaurant. Id. Google Maps then sends that data to
`the Yelp site to be displayed. The method of com-
`munication between the two sites is defined by the
`Google Maps API. Id. Similarly, the “copy and paste”
`function of most word processors and web browsers is
`
`
`
`8
`
`an API – it enables those programs to interact and
`move a block of text between applications, or between
`a website and an application. See Clipboard, Windows
`Dev Center – Desktop http://msdn.microsoft.com/en-us/
`library/windows/desktop/ms648709(v=vs.85).aspx (last
`visited Oct. 25, 2014) (showing that the link “clip-
`board reference” contains the API reference). As these
`examples show, APIs are the fundamental building
`blocks that enable communication between two com-
`puter programs or applications.
`
`At the most basic level, an API is much like a
`
`standard electrical outlet: it allows two programs to
`plug into each other. The standard outlet serves the
`same purpose. It allows the circuitry in an electric
`device to interoperate with the circuitry in a house or
`office. When Cuisinart designs a new toaster oven, its
`electrical engineers do not need to know how a house
`is wired as long as they configure the plug for their
`toaster oven according to the standard outlet specifi-
`cations. Likewise, electricians who wire or rewire
`homes do not have to anticipate which toaster oven
`the homeowner will purchase so long as they set
`up standard outlets. When Cuisinart builds a new
`toaster oven, it can save costs by using the existing
`plug. It also knows that it can market its product
`to potential customers who want to switch – all a
`switching customer has to do is unplug his existing
`oven from the socket and plug in the new Cuisinart
`toaster. Cuisinart could theoretically design a new
`plug that works with a home’s wiring, but consumers
`are used to seeing the two- and three-pronged plugs,
`
`
`
`9
`
`and they would have to figure out how to implement
`the new plug, possibly requiring a converter. Requir-
`ing each appliance company to create its own plug is
`an inefficient anti-consumer, anti-competitive system
`that would confuse users and render older toaster
`ovens incompatible because homeowners would con-
`stantly be changing the sockets in their house.
`
`APIs are much like this standard outlet. So long
`
`as programmers, analogous here to electricians and
`electrical engineers, know the standard terminology
`and structure of an API, they can write their code to
`call on those standard terms, lowering transaction
`costs. And just as an engineer relies on the standard
`electrical socket to design a toaster that will plug into
`any home’s wall, a computer programmer relies on
`APIs to design a computer program that will work
`with other programs.
`
`Similarly, interoperability dictates the standardi-
`
`zation of light bulb bases. Because light bulb bases
`are standardized, a purchaser has access to a multi-
`tude of cheap options when selecting a bulb. No
`matter the bulb, the purchaser can be confident that
`it will work with any given base to transfer electricity
`from the socket in the lamp to the light bulb. A home-
`owner could have a black-light bulb, a fluorescent
`bulb, or an energy-efficient bulb, yet because the
`socket is standardized, none of those outputs matter
`to the electrician who wires a lamp. In the same way,
`an API allows two programs to interact with each
`other through a standardized language.
`
`
`
`10
`
`Yet another way to understand APIs is to con-
`
`sider the order of the gears on a car’s gearshift –
`Park, Reverse, Neutral, Drive, Low (PRNDL). The
`driver uses the gearshift lever to move the transmis-
`sion from one state to another. How would the driver
`know how to operate a car if each manufacturer were
`required to organize the gears differently? Each of
`these familiar and logically named settings sends in-
`formation to the vehicle, which then acts according
`to the driver’s commands. In this way, the gearshift
`lever acts as an interface between the driver and the
`automobile – and because it is standardized, any
`driver can enter any automatic automobile in the
`United States and be confronted with the same
`PRNDL sequence. While the gears in PRNDL could
`be arranged in multiple different ways, or even re-
`named entirely, changing this interface would result
`in potentially dangerous (and undoubtedly inefficient)
`consequences for the driver. Further, the use of a
`uniform interface insulates the user from underlying
`changes or complexity in the actual gear mechanisms.
`The automobile manufacturer or mechanic is free to
`make modifications to the engine in order to make it
`more powerful or efficient, but the user experience
`with the gearshift remains the same.
`
`Just like a driver uses the PRNDL interface to
`
`operate a car, a computer program uses an API’s list
`of known commands in order to interoperate with
`another program. In both cases, consistency in the
`names and order of the commands are critical to
`enable any programmer to operate another program.
`
`
`
`11
`
`Changing the names of the components or the struc-
`ture, sequence, and organization of an API would
`make it unrecognizable to another program so that the
`programs could no longer interoperate. Standard
`interfaces in these contexts allow both the mechanic to
`make modifications to the engine of a car and the
`software programmer to make modifications to her
`code. In both cases they are free to do so, because they
`know the driver or third-party programmer will still
`be confronted by the same standard interface they
`have always used to operate the underlying machinery
`or code. Outlets, light bulbs, and gearshifts are not
`supposed to have complicated interfaces; their interac-
`tion is about simplicity and necessity. The whole idea
`behind an API is that the most efficient means of
`production for Cuisinart is to reuse the existing method
`by which the plug interoperates with the wall outlet.
`
` Much like in electrical engineering and engine de-
`sign, in software development, once an API is estab-
`lished, innovation occurs through implementations
`that rely on its standard form. A programmer exam-
`ines her implementing code and removes a redundancy
`or inefficient sequence – but the API remains un-
`changed. When her program receives instructions
`from another program using the precise language of
`the shared API, her program is able to produce the
`same requested result, but with greater speed and
`reliability due to revisions made to the implementing
`code. There are only a few ways in which APIs can be
`developed, and common practice dictates that devel-
`opers reference and reuse existing APIs that achieve
`
`
`
`12
`
`the same function. This practice improves speed and
`efficiency for developers and results in more competi-
`tion and consumer choice. Just as the standardized
`outlet leads to more, better, less expensive toaster
`ovens on the market, programmers’ ability to re-
`implement APIs leads to more, better, and less ex-
`pensive alternatives to proprietary programs.
`
`
`
`B. Open source use and reimplementation
`of APIs lowers the cost of software de-
`velopment and enables more diverse
`participation, greater competition, and
`expanded consumer choice in the soft-
`ware industry.
`Ultimately, the ability to rely on existing APIs
`
`results in double savings for the open source pro-
`grammer: she does not need to rewrite the sub-
`routines for the basic tasks the API is designed to
`handle, and she does not need to duplicate the func-
`tions provided by compatible programs. These sav-
`ings are passed on to other developers who duplicate
`and make use of that open source code, as well as
`to consumers. And these benefits are not limited to
`open source developers. Incumbent developers receive
`network-effect benefits of more compatible programs
`and therefore more users. The low cost of software
`development fostered by freely usable APIs has also
`greatly benefitted startups. Using preexisting APIs
`allows entrepreneurs to cheaply build software that
`can interoperate with larger systems, opening the
`software market to a broader pool of developers and
`
`
`
`13
`
`leading to the creation of innovative new products.
`As the number of programs compatible with proprie-
`tary software and its APIs increases, the likelihood
`that future programs will use the same APIs in order
`to remain compatible likewise increases. Further, be-
`cause APIs make it less necessary to attempt to ac-
`cess or decompile source code in order to ensure
`compatibility, originators of popular software such as
`Microsoft can provide APIs for its Windows software
`to encourage compatible products that expand the
`possibilities of existing programs.
`
`The threat of liability resulting from the Federal
`
`Circuit’s ruling would have a chilling effect on open
`source software innovation because it discourages in-
`dividual developers from tapping into existing frame-
`works. Open source software encourages collaborative
`development of widely dispersed individuals to pro-
`duce software in small and frequent updates. Pekka
`Abrahamsson et al., Agile Software Development
`Methods: Review and Analysis 74 (2002). If there is
`uncertainty about what developers can and cannot
`reuse, those developers are unlikely to work on a proj-
`ect at all. The consequences of that kind of chill
`are felt by many. Open source programmers often
`address deficiencies in a program’s code or function,
`and a hobbyist or individual who cares passionately
`about a software project might want to make a bene-
`ficial change to its source code. If part of this change
`involves an API, under the Federal Circuit’s rule, the
`specter of litigation will discourage the hobbyist
`from making a positive contribution to the software.
`
`
`
`14
`
`Proprietary software owners could rely on the Federal
`Circuit’s rule to threaten open source software devel-
`opers who are trying to compete, killing off all kinds
`of potential new innovation in the process. Cf. Bran-
`ford L. Smith & Susan O. Mann, Innovation and
`Intellectual Property Protection in the Software Indus-
`try: An Emerging Role for Patents, 71 U. Chi. L. Rev.
`241, 242 (2004).
`
`The Federal Circuit’s rule also threatens to allow
`
`“vendor lock-in” and reduce competition by man-
`dating higher switching costs between vendors. If
`Microsoft were able to copyright the API that allows a
`user to open a Microsoft Word document, it would be
`exceedingly difficult for a user to switch to a different
`program because his or her files would be trapped in
`Microsoft’s proprietary format. Open source software
`reduces the risk of vendor lock-in. Cheap and efficient
`use of existing APIs is critical to getting these open
`source alternatives to the market, and thus, increas-
`ing software competition.
`
`
`
`C. Facilitating the existence of successful
`open source alternatives fulfills copy-
`right’s constitutional purpose of pro-
`moting creativity and innovation, and
`the Federal Circuit’s ruling threatens a
`thriving open source industry’s ability
`to realize those objectives.
`The constitutional purpose of copyright law is to
`
`“promote the Progress of Science and useful Arts.” U.S.
`Const. art. I, § 8, cl. 8. The creative boon represented
`
`
`
`15
`
`by open source can be seen in the over 200,000 pro-
`jects and over 4.9 billion lines of code that comprise
`the open source software market. See Black Duck
`Software Estimates Development Cost of Open Source
`Software at $387 Billion, Black Duck Software (Apr.
`14, 2009), https://www.blackducksoftware.com/news/
`releases/2009-04-14. This innovation has contributed
`immensely to the economy and the public good. See
`id. (estimating the total development cost of open
`source software at $387 billion); Amanda McPherson
`et al., Estimating the Total Development Cost of a
`Linux Distribution, The Linux Foundation (Oct.
`2008), http://www.linuxfoundation.org/sites/main/files/
`publications/estimatinglinux.html (approximating the
`cost of developing a Linux distribution at $10.8
`billion); Investor Relations: Financial Statements, Red
`Hat, http://investors.redhat.com/financials-statements.cfm
`(last visited Oct. 25, 2014) (noting Red Hat’s revenue
`at over $1 billion); StatCounter Global Stats: Top 5
`Desktop, Tablet, & Console Browsers from Sept. 2013
`to Sept. 2014, Statcounter, http://gs.statcounter.com/
`#browser-ww-monthly-201309-201309-bar (last vis-
`ited Oct. 25, 2014) (highlighting Mozilla’s Firefox
`browser’s market share of 18%).
`
`History shows that promoting interoperability is
`
`fundamental to the promotion of “Science and useful
`Arts.” U.S. Const. art. I, § 8, cl. 8. The software
`written for the first personal computers (PCs) was
`only compatible with one operating system and IBM’s
`proprietary firmware. Rival PC manufacturers, based
`on their understanding of these interfaces, were able
`
`
`
`16
`
`to develop their own firmware and build PCs that
`could run software previously only compatible with
`IBM machines. What followed was explosive world-
`wide growth in PC production and ownership, with
`diverse products, reduced prices, and a vastly in-
`creased overall demand for software. And the innova-
`tion afforded by open interfaces is not limited to PCs.
`UNIX was the first modern operating system. Heather
`J. Meeker, The Open Source Alternative 4 (2008).
`Because the computer industry considered the UNIX
`API to be uncopyrightable, programmers reimple-
`mented the API to create Linux, an open source
`operating system. See id. at 6. In turn, Linux APIs
`were later used by computer giants Sun and Oracle to
`ensure that programs written for Linux were compat-
`ible with their own operating systems. Opening
`Expert Report of Dr. Owen Astrachan at 39, Oracle
`Am., Inc. v. Google Inc., 872 F. Supp. 2d 974 (N.D.
`Cal. 2012) (No. C 10-03561 WHA). Likewise, Apple –
`now the world’s largest computer company – changed
`its interface for its current operating system, OS X, to
`make us