No. 18-956
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`IN THE
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`GOOGLE LLC,
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`PETITIONER,
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`RESPONDENT
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`v.
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`ORACLE AMERICA, INC.,
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`__________
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`On Writ of Certiorari
`to the United States Court of Appeals
`for the Federal Circuit
`__________
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`BRIEF OF AMICI CURIAE
`SMALL, MEDIUM, AND OPEN SOURCE TECHNOLOGY
`ORGANIZATIONS IN SUPPORT OF PETITIONER
`__________
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`JASON M. SCHULTZ
`(COUNSEL OF RECORD)
`CHRISTOPHER J. MORTEN
`NYU TECHNOLOGY LAW AND POLICY CLINIC
`NYU SCHOOL OF LAW
`245 SULLIVAN STREET, 609
`NEW YORK, NY 10012
`TELEPHONE: (212) 992-7365
`JASON.SCHULTZ@LAW.NYU.EDU
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`Counsel for Amici Curiae
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`IN THE
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`GOOGLE LLC,
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`PETITIONER,
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`RESPONDENT
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`v.
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`ORACLE AMERICA, INC.,
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`__________
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Federal Circuit
`__________
`
`BRIEF OF AMICI CURIAE
`SMALL, MEDIUM, AND OPEN SOURCE TECHNOLOGY
`ORGANIZATIONS IN SUPPORT OF PETITIONER
`__________
`
`JASON M. SCHULTZ
`(COUNSEL OF RECORD)
`CHRISTOPHER J. MORTEN
`NYU TECHNOLOGY LAW AND POLICY CLINIC
`NYU SCHOOL OF LAW
`245 SULLIVAN STREET, 609
`NEW YORK, NY 10012
`TELEPHONE: (212) 992-7365
`JASON.SCHULTZ@LAW.NYU.EDU
`
`Counsel for Amici Curiae
`
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`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ...................................... iii
`INTERESTS OF AMICI CURIAE .............................. 1
`SUMMARY OF ARGUMENT ..................................... 5
`ARGUMENT ............................................................... 7
`I.
`Introduction ...................................................... 7
`II. The Court Should Reverse the Decisions
`Below To Prevent Chilling of Innovation and
`Competition in the Software Field. ....................... 10
`A. Successful software development requires
`platform SSO compatibility. .............................. 10
`B. Clear copyright rules contribute
`meaningfully to open source and SME software
`development. ...................................................... 13
`III. Reversing the Federal Circuit’s Decision
`Would Preserve Bedrock Copyright Precedents
`That Software Engineers Have Relied upon for
`Decades. ................................................................. 17
`A. Open source and SME software developers
`benefit from this Court’s rule that functional
`aspects of copyrighted works, including SSOs of
`API packages, are not protected by copyright
`law. ..................................................................... 18
`B. Even if this Court does not reverse the
`copyrightability ruling, it should nonetheless
`reverse the Federal Circuit’s rejection of Google’s
`fair use defense. .................................................. 21
`1. This Court should reverse the Federal
`Circuit’s overly-narrow construction of
`transformative use, which inappropriately
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`excludes from fair use “new opportunities” to
`reuse API package SSOs. ............................... 21
`2. This Court should reaffirm its analysis of
`the third fair use factor in Campbell, where it
`held that amount and substantiality of the
`original work taken need only be “reasonable”
`in light of the purpose, not “necessary,” as the
`Federal Circuit erroneously held. .................. 24
`CONCLUSION .......................................................... 25
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`TABLE OF AUTHORITIES
`Cases
`A.V. ex rel. Vanderhye v. iParadigms, LLC,
`562 F.3d 630 (4th Cir. 2009) ................................. 22
`Authors Guild v. Google, Inc.,
`804 F.3d 202 (2d Cir. 2015) ................................... 22
`Baker v. Selden, 101 U.S. 99 (1879) ................. passim
`Campbell v. Acuff-Rose Music, Inc.,
`510 U.S. 569 (1994) .............................. 21, 22, 23, 24
`Comput. Assocs. Int’l, Inc. v. Altai, Inc.,
`982 F.2d 693 (2d Cir. 1992) ....................... 17, 19, 21
`Lotus Dev. Corp. v. Borland Int’l, Inc.,
`49 F.3d 807 (1st Cir. 1995), aff’d by an equally
`divided court, 516 U.S. 233 (1996) ...... 17, 19, 20, 21
`Oracle Am., Inc. v. Google Inc.,
`750 F.3d 1339 (Fed. Cir. 2014)
`(Oracle I) .............................................. 18, 20, 21, 22
`Oracle Am., Inc. v. Google Inc.,
`872 F. Supp. 2d 974 (N.D. Cal. 2012) ................... 20
`Oracle Am., Inc. v. Google LLC,
`886 F.3d 1179 (Fed. Cir. 2018)
`(Oracle II). ........................................................ 23, 24
`Perfect 10, Inc. v. Amazon.com, Inc.,
`508 F.3d 1146 (9th Cir. 2007).......................... 21, 22
`Sega Enters. Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir. 1992)........................ passim
`Sony Comput. Entm’t, Inc. v. Connectix Corp.,
`203 F.3d 596 (9th Cir. 2000) ......................... passim
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`Statutes
`17 U.S.C. § 102(b) .............................................. passim
`17 U.S.C. § 107(3) ...................................................... 24
`Other Authorities
`Browser Extensions, MDN Web Docs ....................... 12
`Chris Riley, Mozilla Files FTC Comments Calling for
`Interoperability to Promote Competition, Mozilla:
`Open Pol’y & Advoc. (Aug. 21, 2018) .................... 16
`H.R. Rep. No. 94-1476 (1976) .................................... 19
`Letter from Chris Riley, Dir., Pub. Policy, Mozilla
`Corp., to Office of the Sec’y, Fed. Trade Comm’n
`(Aug. 20, 2018) ....................................................... 16
`Microsoft Edge (EdgeHTML) extensions,
`Microsoft Docs ........................................................ 12
`Porting an Extension from Chrome to Microsoft Edge,
`Microsoft Docs ........................................................ 12
`S. Rep. No. 94-473 (1975) .......................................... 19
`Steven Weber, The Success of Open Source
`(2006) ...................................................................... 11
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`INTERESTS OF AMICI CURIAE1
`Amici are small, medium, and open source
`technology organizations.
`Mozilla Corporation has been a pioneer and
`advocate for the web for more than a decade. Mozilla
`creates and promotes open standards that enable
`innovation and advance the web as a platform for all.
`Today, hundreds of millions of people worldwide use
`Mozilla Firefox to discover and experience the web
`on computers, tablets, and mobile phones.
`A Medium Corporation (Medium) provides an
`online publishing platform where people can read,
`write, and discuss the ideas of the day. Medium's
`ecosystem connects users with thoughtful, long-form
`writing by leaders, thinkers, entrepreneurs, artists,
`and journalists. Over 100 million people read on
`Medium each month.
`At Cloudera, we believe that data can make
`what is impossible today, possible tomorrow. We
`empower people to transform complex data into clear
`and actionable insights. Cloudera delivers an
`enterprise data cloud for any data, anywhere, from
`the Edge to AI. Powered by the relentless innovation
`of the open source community, Cloudera advances
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`1 No counsel for a party authored this brief in whole or in part,
`and no such counsel or party made a monetary contribution
`intended to fund the preparation or submission of this brief. No
`person other than the amici curiae or their counsel made a
`monetary contribution to its preparation or submission. The
`parties have consented to the filing of this brief.
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`digital transformation for the world's largest
`enterprises.
`Creative Commons is a nonprofit providing
`the standard legal and technical infrastructure on
`the web that makes making sharing and innovation
`possible, including the use of APIs for accessing and
`sharing works that individual creators have
`voluntarily declared they seek to openly share under
`a Creative Commons license. APIs provide a common
`system of communication in our everyday connected
`world, without which sharing is disabled and friction
`dominates, and creators’ intentions are thwarted.
`Shopify Inc. is a leading global commerce
`company, providing Internet-based software tools to
`help start, grow, and manage a retail business of any
`size. Shopify strongly believes in the value of an open
`Internet, and more than one million merchants rely
`on Shopify’s tools to integrate with thousands of
`third party sales channels, marketing platforms,
`payment gateways, and other online applications.
`Etsy, Inc., and the 2.6 million creative
`entrepreneurs who actively sell on Etsy, rely on open
`standards to help make Etsy’s marketplace flourish.
`Etsy’s marketplace connects millions of buyers to
`sellers from nearly every country in the world for
`unique, special products.
`Reddit provides an online network of
`communities where over 430 million people every
`month find experiences built around their interests,
`hobbies and passions. In operating its services,
`Reddit uses APIs developed by others in countless
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`ways. Reddit itself also develops APIs through which
`other services interact with Reddit.
`The Open Source Initiative (OSI) is a
`nonprofit organization founded in 1998 in order to
`promote the benefits of open source software through
`both education and advocacy. OSI also acts as a
`standards body by maintaining the Open Source
`Definition, an industry standard that encourages
`trust among developers, users, corporations, and
`governments, and that facilitates open source
`cooperation. The maintenance of this standard
`allows for the flourishing of alternatives to
`proprietary software that expand choice in the
`marketplace, spurring competition and promoting
`progress of computer arts and sciences.
`Mapbox is a growing startup founded in
`Washington, D.C., with more than 500 million users
`interacting with its technology each month. Despite
`offering products that compete with Google Maps,
`Mapbox’s interests in this case concern the bigger
`picture. Balance and predictability in copyright law
`are vital to innovation as a whole in the software
`industry. As a provider of online services, Mapbox is
`intimately familiar with APIs, providing many such
`interfaces to its customers. The possibility of
`copyright protection did not motivate Mapbox to
`make these interfaces; ease of use for customers did.
`Patreon is a membership platform that makes
`it easy for creators to get paid by their fans. Patreon
`has sent over $1 billion to creators since its founding,
`which is made possible because of the many API-
`based integrations with its partners to allow creators
`to offer membership across the internet.
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`Wikimedia Foundation is a non-profit
`organization based in San Francisco, California,
`which operates twelve free-knowledge projects on the
`Internet, including Wikipedia. Wikimedia’s mission
`is to develop and maintain factual and educational
`content created and moderated by volunteer
`contributors, and to provide this content to people
`around the world free of charge. Additionally, the
`Foundation writes free and open source software to
`enable people worldwide to implement wiki-style
`information exchanges for their own usage. The
`MediaWiki software that the Foundation develops,
`including APIs, has been implemented by
`corporations, educational institutions, and
`government agencies to record and share
`information, and the Foundation encourages such
`use as in line with its mission to share knowledge.
`Software Freedom Conservancy (Conservancy)
`is a charity dedicated to helping people take control
`of their computing experience by supporting,
`creating and defending free and open-source
`software developed by volunteer communities and
`licensed for the benefit of all. Conservancy is the
`nonprofit home for over 40 free and open-source
`projects and initiatives such as Git, Inkscape,
`Busybox, Homebrew, Samba, QEMU and Selenium,
`which include thousands of volunteer contributors.
`Conservancy’s communities maintain some of the
`most fundamental utilities in computing today and
`introduce innovations that shape software for the
`future.
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`SUMMARY OF ARGUMENT
`Competition and innovation are at the heart of
`a healthy internet and the field of software
`development that fuels it. For decades, software
`engineers have relied heavily on reimplementation,2
`including reuse of functional protocols such as the
`software interfaces in this case, to create competing
`alternatives to incumbent industry players and
`develop new markets without fear of copyright
`infringement. In accord with this Court’s ruling in
`Baker v. Selden, 101 U.S. 99, 105 (1879), and the
`plain language of 17 U.S.C. § 102(b), the software
`industry has flourished utilizing this approach to
`make internet and software solutions more
`accessible, affordable, diverse, and robust.
`By reversing this rule in the context of
`Application Programming Interface (API) packages,3
`the Federal Circuit upended decades of industry
`practice and the well-established expectations of
`developers, investors, and consumers.
`Reimplementation is a standard practice among
`software developers—from those wishing to create
`entirely new platforms to those wishing to make
`their platforms compatible with other developers’
`software. The court’s decisions below heedlessly
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`2 Reimplementation, in the software industry, is the “process of
`writing new software to perform certain functions of a legacy
`product . . . . Through reimplementation, the new entrant
`creates its own computer code to perform the functions, but
`reuses the limited number of instructions that are required to
`create the interface already known by the users.” Pet’r’s Br. 7.
`3 Consistent with the Federal Circuit’s opinions, “API packages”
`in this brief should be understood as “Java SE Libraries,” as
`that term is used in Petitioner’s brief. See Pet’r’s Br. 8 n.5.
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`unraveled this reasonably predictive rule and the set
`of reliable norms it informs, which allow software
`coders to understand what is appropriate to carry
`over from one project to another and what is not.
`This is especially true for small and medium
`technology enterprises (SMEs) and open source
`software developers, who are often highly sensitive
`to new litigation risks.
`Amici urge the Court to reverse the Federal
`Circuit’s decisions and correct this misreading of
`copyright law. Amici raise two fundamental concerns
`with the Federal Circuit’s reasoning. First, the
`Federal Circuit’s dramatic expansion of copyright
`protection to include functional elements of API
`packages, which Amici believe are not copyrightable
`under U.S. law, stifles innovation and competition by
`privileging powerful incumbents, creating artificial
`barriers to entry for new players, and deterring new
`software development. Second, the court’s rejection
`of the fair use doctrine stands to undermine not only
`reimplementation of API packages, but also other
`valuable software engineering practices related to
`reverse engineering, interoperability, and creation of
`competing platforms, as well as innovations in data
`analysis, search engines, and many other
`groundbreaking advancements. In doing so, the
`Federal Circuit has opened the door to relitigating
`many status quo software engineering practices—
`practices that SMEs and open source projects depend
`on every day to produce new platforms, programs,
`features, and interfaces. See, e.g., Sony Comput.
`Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 606-07
`(9th Cir. 2000); Sega Enters. Ltd. v. Accolade, Inc.,
`977 F.2d 1510, 1522-23 (9th Cir. 1992).
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`For these reasons, we urge the Court to
`reverse the Federal Circuit’s decision below and rule
`in favor of Google.
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`ARGUMENT
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`I. Introduction
`APIs facilitate countless functions and
`innovations in the software world. From helping the
`software running your phone to maintaining medical
`equipment to supporting every electronic connection
`your computer makes to another device, it would be
`impossible to list them all. At issue in this case is a
`particular set of API packages for a mobile operating
`system, but the implications of the Federal Circuit’s
`rulings are much larger and have the potential to
`completely transfigure software production,
`competition, and innovation, especially on the
`internet.
`To help illuminate these concerns, we
`encourage the Court to understand software
`interfaces (which are a type of API) as similar to the
`electronic checkout forms you see when shopping
`online. When you buy a product on an e-commerce
`website, you are typically asked to enter information
`related to method of payment and shipping. While
`every e-commerce site has a slightly different style,
`payment screens almost without exception ask you to
`fill out a nearly identical structured form: name,
`address, credit card or bank information, billing
`address, shipping address, etc. E-commerce sites will
`display these fields in various shapes, sizes, fonts,
`and colors, but the structure, sequence and
`organization (SSO) of the information have become
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`conventions. While a shopping site could attempt to
`come up with a totally new format for requesting
`billing and shipping data, common sense,
`technological standardization, and economic
`efficiency have driven the industry to adopt an
`almost ubiquitous SSO that every user expects,
`understands, and completes with ease.
`Now imagine that the copying of this SSO
`from one site to another is deemed to constitute
`copyright infringement. This would force every
`website with a payment page to either pay licensing
`fees to the original inventor of the standard structure
`or invent a unique SSO for payment and shipping
`forms, requiring users to enter information in
`repeatedly unfamiliar formats with unintuitive
`naming conventions. Instead of entering “First
`Name, Last Name,” for example, users might be
`required to enter “Name as it appears on most recent
`1040 tax form for U.S. taxpayers” or “Name that
`comes after your first name and middle name(s).” For
`every new site, the problem would repeat. This would
`impose enormous, unwarranted costs on both
`creators and consumers, inefficiently redirecting the
`time and energy of software developers while also
`wasting customers’ time navigating new and
`potentially confusing payment and shipping forms
`for every online store they use. Such costs could also
`deter customers from trying new platforms and
`reinforce the market power of dominant vendors, not
`because those vendors have better products or prices,
`but because they happen to have been the first to
`publish the SSO of the dominant payment and
`shipping forms. Software bugs and customer errors
`would both become more frequent. Similar problems
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`would arise for nonprofit online donations pages and
`discussion forums, which likewise rely on the ability
`to freely copy the SSO of electronic interfaces to
`maximize public accessibility and engagement. To
`hold that the SSOs of each of these forms and
`interfaces are copyrightable and thus require
`licensing if not litigation would neither be a victory
`for innovation, creativity, efficiency, or competition,
`nor a result that copyright law was designed to
`achieve. Instead, so holding would erase many of the
`benefits that online technologies and marketplaces
`provide to society, from low barriers for new entrants
`to low-stress, intuitive opportunities for users.
`The above concerns apply equally to SSOs for
`API packages. Much as developers and users of e-
`commerce and other payments websites have come to
`expect and depend on standardized SSOs for
`checkout forms, both developers of operating systems
`and developers of applications for those operating
`systems expect and depend on standardized SSOs for
`API packages when programming. For application
`developers, especially open source projects and
`SMEs, standardized SSOs are an economic necessity,
`since they often lack the resources to modify or adapt
`their applications to every bespoke platform,
`especially when each platform might have hundreds
`or even thousands of relevant API packages. When
`SSOs for API packages are consistent across
`operating systems or other platforms, application
`developers are able to quickly and efficiently improve
`or adapt original products to new marketplaces. This
`compatibility means software coders can develop
`apps for one platform knowing they will also run
`consistently and predictably on other platforms.
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`More platforms can offer a wider range of
`applications, providing consumers with new choices
`and more competition.
`The Federal Circuit’s rulings threaten these
`economic and societal benefits. If the Federal
`Circuit’s decisions stand, developers of new operating
`systems or platforms will either be at the mercy of
`dominant players’ licensing practices and prices or be
`forced to adopt ill-suited alternatives that will put
`them at an immediate disadvantage in attracting
`third-party applications and users they need to
`compete effectively. Software will likely become less
`diverse, more expensive, less compatible, and more
`error-prone. It was for these reasons that this Court
`decided to deny copyright to the ledger system in
`Baker, and this reasoning has (until now) led to
`consistent decisions across the circuit courts that
`have ruled on copyrightability and fair use for
`software. Amici urge this Court to uphold the Baker
`line of precedents, reverse the Federal Circuit’s
`rulings, and reaffirm that copyright does not stand in
`the way of software developers reusing SSOs for API
`packages in socially, technologically, and
`economically beneficial ways.
`II. The Court Should Reverse the Decisions
`Below To Prevent Chilling of Innovation and
`Competition in the Software Field.
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`A. Successful software development requires
`platform SSO compatibility.
`Amicus Mozilla is home to a community
`spanning thousands of developers who write code
`that interacts with APIs on a daily basis. The ethos
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`of the industry as a whole is exemplified in projects
`like Mozilla’s Firefox browser, whose open source
`code receives contributions from thousands of
`developers both inside and outside Mozilla every day.
`Many open source software projects are
`similar but function without corporate support. For
`example, amicus Software Freedom Conservancy
`represents over 40 such free and open source
`projects. These projects are loose communities of
`contributors, project managers, and other organizers
`who volunteer their time, effort, and creativity to
`improve the technology that powers much of the
`online and electronic ecosystems we use every day.4
`In order to successfully attract new users and
`third-party app developers, the vast majority of
`software and internet technologies must achieve
`compatibility with current or legacy systems. This
`means that software developers working across the
`industry as a whole are constantly iterating and
`building on each other’s code. Basic website
`development works this way. For a webpage to be
`considered successful and professional, it needs to
`appear correctly on every single browser and look the
`same on each. If each browser required different sets
`of instructions to display colored text or tables, for
`example, web developers would need to learn
`entirely new display instructions and code entirely
`new pages for each browser in the market. And new
`browsers would have a hard time entering the
`market because no websites would have pages coded
`for their display instructions.
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`4 See Steven Weber, The Success of Open Source (2006).
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`Another, more specific illustration may be
`helpful here: Mozilla has reimplemented Google’s
`“Extensions” API from the Chrome web browser in
`Mozilla’s Firefox browser.5 Mozilla’s choice to
`support the Extensions API through reuse of the
`SSO allows other developers to build a single
`extension and then deploy it not just in Firefox but
`in Google’s Chrome browser, Microsoft’s Edge
`browser, and the Opera browser, with only a few
`small modifications.6 This increases the number of
`potential extensions available to users of all
`browsers, allowing them to easily enhance and add
`new functionality to their chosen browser, or, if they
`wish, switch browsers without high transaction
`costs. Mozilla’s reimplementation of the Extensions
`API is a classic example of reliance on established
`software engineering norms for a result that is not
`only what software engineers expect, but that makes
`sense for the success of the field as a whole, with
`obvious benefits to competition and innovation in the
`market for web browsing.
`Yet the Federal Circuit’s decisions threaten to
`disrupt the industry norm of reimplementation. In
`ruling both that the SSO of Oracle’s Java SE
`Libraries was copyrightable and that the fair use
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`5 Browser Extensions, MDN Web Docs, available at
`https://developer.mozilla.org/en-US/Add-ons/WebExtensions
`(last visited Jan. 10, 2020).
`6 See, e.g., Microsoft Edge (EdgeHTML) extensions, Microsoft
`Docs, available at https://docs.microsoft.com/en-us/microsoft-
`edge/extensions (last visited Jan. 10, 2020); Porting an
`Extension from Chrome to Microsoft Edge, Microsoft Docs,
`https://docs.microsoft.com/en-us/microsoft-
`edge/extensions/guides/porting-chrome-extensions (last visited
`Jan. 10, 2020).
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`defense was unavailing to petitioner, the Federal
`Circuit issued an edict that is nonsensical and
`counterintuitive for most software developer
`communities. Expanding copyright to include SSOs
`of API packages does not provide incentives to create
`useful software that has economic and social
`benefits. Instead, it erects new barriers to such
`creation and forces the creation of fragmented,
`complicated, and cumbersome SSO ecosystems that
`are completely unnecessary and unproductive from a
`software engineering perspective. Much like forcing
`every e-commerce website to create new idiosyncratic
`shipping and payment forms, copyright for SSOs of
`API packages results in confusion, wasted effort, and
`significant legal uncertainty in the software field,
`especially for open source, nonprofit, and SME
`developers.
`B. Clear copyright rules contribute
`meaningfully to open source and SME
`software development.
`While this case pits two technology giants
`against each other, Amici urge the Court to look
`beyond them and consider the importance of the
`issues presented to smaller players in the software
`industry—individual developers, startups, nonprofit,
`SMEs, and open source software developers, among
`others. In particular, we urge the Court to consider
`the benefits that clear copyright rules provide for
`software development.
`Clear copyright rules are critical to the
`survival of small technology companies and open
`source projects. These efforts often start with
`quintessential “garage” inventors—a few individual
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`coders huddled together in a small office or home or
`remotely, working to code as fast as they can to
`launch a new idea, product, or service into the world
`before their funds run out. To do this, they need
`copyright rules to be relatively clear. For example,
`software engineers generally understand they cannot
`copy someone else’s application source code unless
`they have permission, for example, via a relevant
`“open source” license. Likewise, software engineers
`generally understand that they may reuse API
`package SSOs without a license without running
`afoul of copyright law, which does not apply to these
`functional connectors. This practice is commonplace,
`enabling application developers to offer their apps to
`consumers on a range of existing platforms,
`operating systems, or browsers quickly and
`efficiently. See, e.g., Pet’r’s Br. 26-27 (“[T]he decades-
`long understanding in the software industry has
`been that software functions may be freely
`reimplemented—and that such reimplementation
`‘unleashed the personal computer revolution.’”).
`Small innovators can “plug-and-play” their
`applications across all technology ecosystems
`without having to rewrite the mechanisms for their
`applications to communicate with dozens or
`hundreds of alternative APIs to produce identical
`functionality.
`Under the Federal Circuit’s approach, app
`developers will have to shoulder these additional
`engineering, financial, and legal costs when
`extending their programs to a new platform or
`operating system. For SMEs, open source developers
`and other small innovators in particular, such
`additional burdens may be difficult to sustain, with
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`the effect of reducing competition and innovation in
`the software field, not enhancing them.
`Oracle dismisses these concerns by suggesting
`that platform or operating system developers simply
`create new SSOs instead of using the SSOs for the
`Java SE Libraries. But, as highlighted in our
`payments analogy above, creation of new SSOs is a
`problematic workaround, an ersatz “innovation” that
`the marketplace neither needs nor desires.
`Furthermore, forcing application developers to
`rewrite their code for hundreds of new APIs in order
`to make it available on a new platform is not only
`burdensome and expensive, but risky, as it may
`create new errors or incompatibilities that will
`require extensive quality assurance and
`maintenance.
`By undermining the relative clarity of
`copyright rules for APIs, the Federal Circuit also
`created new litigation risks that will
`disproportionately impact smaller innovators who—
`unlike Google and Oracle—typically have fewer
`resources to defend themselves. A simple cease-and-
`desist letter from a large software company could be
`enough to shut down new products or services from
`SMEs and open source developers, who often lack
`large legal teams and extensive financial reserves.
`On a broader level, the Federal Circuit’s
`rulings threaten competition across the entire
`software industry. The Court’s dramatic expansion of
`copyright doctrine to annex the functional aspects of
`API packages will stifle innovation and competition
`by privileging powerful incumbents and creating a
`lock-out effect for new products. See, e.g., Pet’r’s Br.
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`27 (“A ruling by this Court that copyright prohibits
`. . . reimplementation would allow the authors of
`older software to hold their users hostage.”). This
`would lead to an overall decrease in choice, both for
`innovators and consumers. Amicus Mozilla has long
`advocated for technical interoperability as essential
`to preserving consumer choice and economic
`competition on many fronts.7 Because the Federal
`Circuit’s rulings have the potential to reinforce the
`dominance of industry giants by increasing their
`proprietary leverage over small developers and other
`new entrants, this Court should reverse the Federal
`Circuit’s decisions.
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`7 As Amicus Mozilla argued in a recent blog post accompanying
`its comment to the Federal Trade Commission on the topic of
`competition in the internet sector, “[i]f the future of the internet
`stays grounded in standards and built out through an
`ecosystem of transparent third-party accessible APIs, we can
`preserve the digital platform economy as a springboard for our
`collective social and economic welfare, rather than watching it
`evolve into an oligarchy of gatekeepers over our data.” Chris
`Riley, Mozilla Files FTC Comments Calling for Interoperability
`to Promote Competition, Mozilla: Open Pol’y & Advoc. (Aug. 21,
`2018), available at
`https://blog.mozilla.org/netpolicy/2018/08/21/mozilla-files-ftc-
`comments-calling-for-interoperability-to-promote-competition/
`(last visited January 12, 2020); see also Letter from Chris Riley,
`Dir., Pub. Policy, Mozilla Corp., to Office of the Sec’y, Fed.
`Trade Comm’n (Aug. 20, 2018), available at
`https://blog.mozilla.org/netpolicy/files/2018/08/Mozilla-FTC-
`filing-8-20-2018.pdf (last visited January 12, 2020).
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`III. Reversing the Federal Circuit’s Decision
`Would Preserve Bedrock Copyright
`Precedents That Software Engineers Have
`Relied upon for Decades.
`While ostensibly limited to the legal status of
`the functional elements of the Java SE Libraries, the
`Federal Circuit’s decisions on copyrightability and
`fair use conflict with several of the bedrock copyright
`precedents that software engineers throughout the
`entire industry rely upon every day. First and
`foremost, the Federal Circuit’s decisions conflict with
`this Court’s holding in Baker v. Selden, 101 U.S. at
`105, that functional elements of a work are not
`copyrightable. This principle was codified at 17
`U.S.C. § 102(b) and has been reaffirmed in the
`software context by numerous courts. See, e.g., Lotus
`Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 815 (1st
`Cir. 1995), aff’d by an equally divided court, 516 U.S.
`233, 233 (1996); Comput. Assocs. Int’l, Inc. v. Altai,
`Inc., 982 F.2d 693, 707-08 (2d Cir. 1992). They also
`blur numerous software fair use holdings that rely
`on both the unprotectability of functional aspects of
`software and the invocation of the fair use doctrine to
`ensure software innovation and compatibility. See
`C
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