throbber
No. 14-410
`================================================================
`
`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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket