`
`
`
`In the Supreme Court of the United States
`________________
`
`
`GOOGLE LLC,
`
`
`Petitioner,
`
`v.
`
`
`ORACLE AMERICA, INC.,
`
`
`Respondent.
`
`________________
`
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Federal Circuit
`________________
`
`BRIEF OF AMICI CURIAE SOFTWARE
`INNOVATORS, STARTUPS, AND INVESTORS
`IN SUPPORT OF PETITIONER
`________________
`
`
`
`
`
`
`January 13, 2020
`
`J. Carl Cecere
`Counsel of Record
`CECERE PC
`6035 McCommas Blvd.
`Dallas, TX 75206
`(469) 600-9455
`ccecere@cecerepc.com
`
`Counsel for Amici Curiae
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`Table of contents .................................................................. I
`
`Table of authorities ............................................................. II
`
`Interest of amici curiae ....................................................... 1
`
`Introduction and summary of argument .......................... 3
`
`Argument ............................................................................. 6
`
`Rejecting the Federal Circuit’s erroneous under-
`standing of the copyrightability of Java’s
`software
`interface
`is essential to protect
`startups. ........................................................................ 6
`
`A. Startups depend on easy access to software
`interfaces like Java’s. .......................................... 7
`
`B. The Federal Circuit’s rulings threaten the
`easy access to connectivity that startups
`need to survive. .................................................. 11
`
`C. Without easy access to software interfaces
`like Java’s, startups will be harder to
`develop, and harder to fund, sending ripples
`through the entire economy. ............................. 16
`
`Conclusion .......................................................................... 22
`
`
`
`
`
`
`
`
`
`(I)
`
`
`
`
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Assessment Techs. of WI, LLC v. WIREdata,
`Inc.,
`350 F.3d 640 (7th Cir. 2003) ............................................ 14
`
`Baker v. Selden,
`101 U.S. (11 Otto) 99 (1880) ........................................... 13
`
`Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1539
`(11th Cir. 1996) ................................................................ 14
`
`Computer Assocs. Int’l, Inc. v. Altai, Inc.,
`982 F.2d 693 (2d Cir. 1992) ............................................. 14
`
`Lexmark Int’l, Inc. v. Static Control
`Components, Inc.,
`387 F.3d 522 (6th Cir. 2004) ............................................ 14
`
`Lotus Dev’t Corp. v. Borland Int’l, Inc.,
`49 F.3d 807 (1st. Cir. 1995), aff ’d, 516 U.S. 233
`(1996) (per curiam). ........................................................ 13
`
`Mitel, Inc. v. Iqtel, Inc.,
`124 F.3d 1366 (10th Cir. 1997) ........................................ 14
`
`Pamela Samuelson & Suzanne Scotchmer,
`The Law and Economics of Reverse
`Engineering, 111 Yale L.J. 1575 (2002) ....................... 14
`
`Sega Enterps. Ltd. v. Accolade, Inc.,
`977 F.2d 1510 (9th Cir. 1992) .......................................... 14
`
`Statutes:
`
`Digital Millennium Copyright Act,
`17 U.S.C. § 1201(f)(1). .................................................... 11
`
`Sonny Bono Copyright Term Extension Act,
`Pub. L. No. 105-298, 112 Stat. 2827, § 102(b)
`(1998). ................................................................................. 1
`
`
`
`(II)
`
`
`
`
`Statutes—continued:
`
`III
`
`17 U.S.C. §
`102(a). ............................................................................... 15
`
` 102(b) ........................................................................... 9, 10
`
`Other authorities:
`
`Kevin Ashton, That ‘Internet of Things’ Thing,
`RFID Journal (June 22, 2009),
`<https://bit.ly/2V0SJBJ>. .............................................. 8
`
`Jonathan Band, Interfaces on Trial 2.0 (2011). ............... 9
`
`Michael A. Carrier, Copyright and Innovation:
`The Untold Story, 2012 Wis. L. Rev. 891 (2012) ......... 20
`
`Adam DuVander, 7,000 APIs: Twice as Many as
`This Time Last Year, ProgrammableWeb
`(Aug. 23, 2012), <https://bit.ly/2EkDnRh> ................ 10
`
`Ewing Marion Kauffman Found., The
`Importance of Startups in Job Creation and
`Job Destruction 4 (Jul. 2010),
`<http://bit.ly/1eODvIy>. .............................................. 22
`
`Darian M. Ibrahim, The (Not So) Puzzling
`Behavior of Angel Investors, 61 Vand. L. Rev.
`1405 (2008) ....................................................................... 11
`
`Deborah Gage, The Venture Capital Secret: 3
`Out of 4 Start-ups Fail, Wall St. J., Sept. 20,
`2012 .................................................................................. 19
`
`Urs Gasser & John Palfrey, Interop: The
`Promise and Perils of Highly Connected
`Systems (2012) .................................................................. 8
`
`Paul Goldstein, Goldstein on Copyright § 2.3.11 ........... 12
`
`
`
`
`
`
`
`
`
`
`IV
`
`Other authorities—continued:
`
`Fern Halper, Judith Hurwitz, & Marcia
`Kaufman, A Web API Study: The Benefits of
`APIs in the App Economy (2011),
`<https://bit.ly/2XlcWDv> ............................................. 11
`
`J. Haltiwanger et al., Ewing Marion Kauffman
`Found., Declining Business Dynamism in the
`U.S. High-Technology Sector 7 (Feb. 2014),
`<http://bit.ly/1OWNUPp> ........................................... 22
`
`J.D. Harrison, More businesses are closing than
`starting. Can Congress help turn that
`around?, Wash. Post, Sept. 17, 2014,
`<http://wapo.st/1Parrns>. ............................................ 22
`
`Eric von Hippel, Democratizing Innovation
`(2006) ................................................................................ 21
`
`Tim Kane, Ewing Marion Kauffman Foundation,
`The Importance of Startups in Job Creation
`and Job Destruction 3 (2010),
`<https://bit.ly/2xxx0GE>. Our startups
`represent some of the most important dri ..................... 5
`
`Ariel Katz, Copyright and Competition Policy in
`Handbook of the Digital Creative Economy
`(Christian Handke and Ruth Towse, eds. 2013) .......... 13
`
`Samuel Kortum & Josh Lerner, Assessing the
`Contribution of Venture Capital to
`Innovation, RAND Journal of Economics
`(2000) ................................................................................ 11
`
`Gary Lauder, Venture Capital: “The Buck Stops
`Where?”, 2 Med. Innovation & Bus. 14, (2010),
`<http://bit.ly/2xzoAhi>. ................................................ 20
`
`
`
`
`
`
`
`
`V
`
`Other authorities—continued:
`
`Nat’l Sci. Bd., Nat’l Sci. Found., Science and
`Engineering Indicators, fig. 3-12 (2016),
`<http://1.usa.gov/1m7gkxG>. ......................................... 22
`
`Nat’l Venture Capital Ass’n, Venture Impact:
`The Economic Importance of Venture-Backed
`Companies to the U.S. Economy 9-10 (5th ed.
`2009), <http://bit.ly/1X8wBmZ>. ................................ 22
`
`National Venture Capital Association, Yearbook
`2017 (2017) <https://bit.ly/2U5bGlP> ......................... 11
`
`Open Source Initiative, The Open Source
`Definition, http://opensource.org/osd. ........................... 9
`
`Tim O’Reilly, The Open Source Paradigm Shift,
`in Perspectives on Free and Open Source
`Software (J. Feller, B. Fitzgerald, S. Hissam,
`& K. R. Lakhani, eds., 2007)............................................ 9
`
`Small Bus. Admin., Off. of Advocacy, Frequently
`Asked Questions 1,
`<http://1.usa.gov/1y1jgOO>......................................... 22
`
`Jeffery Stylos & Brad Myers, Mapping the
`Space of API Design Decisions, 2007 IEEE
`Symposium on Visual Languages and Human-
`Centric Computing 53-54 (2007) ................................... 11
`
`World Economic Forum, Technology Pioneers
`2018 <https://bit.ly/2yF8wiL> ....................................... 5
`
`Webpages:
`
`Apache Software Foundation, Open Office,
`http://www.openoffice.org/. .............................................. 9
`
`Basecamp (37signals, LLC),
`http://basecamp.com. ..................................................... 10
`
`
`
`
`
`
`Webpages—continued:
`
`VI
`
`
`Disqus, http://www.disqus.com ........................................ 10
`
`GitHub, Inc.,
`https://github.com/dewitt/opensearch. ......................... 10
`
`Last.fm LTD, http://www.last.fm ..................................... 10
`
`Microsoft Kinect, <https://bit.ly/2psUKdl>. ................. 10
`
`Mozilla Products, <https://mzl.la/2IASStD> .................. 9
`
`Programmable-Web API Directory,
`https://www.programmableweb.com/apis/direc
`tory ................................................................................... 10
`
`Simple Finance Technology Corp.,
`http://www.simple.com ................................................... 10
`
`Wordpress, http://wordpress.org/. ..................................... 9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`_______________
`
` No. 18-956
`
`
` GOOGLE LLC,
`
`Petitioner,
`
` v.
`
` ORACLE AMERICA, INC.,
`Respondent.
`
`_______________
`
`On Writ of Certiorari
`to the United States Court of Appeals
`for the Federal Circuit
`_______________
`
`BRIEF OF AMICI CURIAE SOFTWARE
`INNOVATORS, START-UPS, AND INVESTORS
`IN SUPPORT OF PETITIONER
`_______________
`
`
`1
`INTEREST OF AMICI CURIAE
`
`
`
`Amici include and represent software innovators,
`startups, and investors actively competing in a wide array
`of industry sectors and markets.
`
`
`
`1
` Petitioner has lodged a blanket amicus consent letter with the
`Court, and Respondent has consented to the filing of this brief. No
`counsel for any party authored this brief in whole or in part, and no
`person or entity other than the amici, their members, or their counsel
`made a monetary contribution intended to fund the brief ’s prepara-
`tion or submission.
`
`
`
`
`(1)
`
`
`
`2
`
`
`Azavea – Azavea is a software design and engineering
`firm based in Philadelphia with a mission to advance the
`state of the art in geospatial technology and to apply it for
`civic, social, and environment impact. Employing 65 peo-
`ple, Azavea’s work depends on an open innovation ecosys-
`tem, and we believe that the ability to use software inter-
`faces like those at issue in this case is critical to both our
`work and that of all our clients. Our work requires the use
`of these interfaces because the digital systems we build
`all rely on the ability to integrate different components
`into a larger system. We believe that the primary value of
`these interfaces is in the implementation—the specific
`way in which instructions passed through the interface
`are executed, rather than in the interface’s specification.
`As such, we believe the implementations should be sub-
`ject to copyright but the specification should remain in
`the realm of ideas such that technologists can use them
`without seeking a license. To allow otherwise will be de-
`structive to the open innovation ecosystem upon which
`the Internet and US technological leadership has been
`built and its future prosperity depends.
`
`Esther Dyson – Swiss-born American journalist, au-
`thor, businesswoman, investor, commentator and philan-
`thropist, Esther is a leading angel investor focused on
`breakthrough efficacy in healthcare, government trans-
`parency, digital technology, biotechnology, and space. Es-
`ther is currently focusing her career on health and con-
`tinues to invest in health and technology startups.
`
`Foundry Group – Foundry Group LLC is a venture
`capital firm that invests in early- and growth-stage tech-
`nology companies throughout the United States. Its
`founders have almost 30 years of experience investing in
`venture funds. In addition to providing capital, the firm
`contributes its experience in starting and growing
`
`
`
`
`
`
`
`
`3
`
`companies, its expertise in the technology sector, and its
`network of relationships, to help outstanding entrepre-
`neurs and venture capital fund managers turn great ideas
`into great companies. Foundry Group is an SEC Regis-
`tered Investment Adviser with more than $2.5 billion un-
`der management.
`
`Tim O’Reilly -- Forty years in tech has shaped Tim
`O’Reilly, CEO and founder of O’Reilly Media, into a man
`who constantly thinks about the future in the hopes of
`making a difference in the present. The media mogul, fu-
`turist, and the man credited with creating the first ever
`commercial website (or web portal), started his media en-
`terprise at a time when people were more likely to own a
`typewriter than a personal computer. His company,
`O’Reilly Media, delivers online learning, publishes books,
`runs conferences, urges companies to create more value
`than they capture, and tries to change the world by
`spreading and amplifying the knowledge of innovators.
`
`Amici’s common experience has given them first-hand
`knowledge of the types of software interfaces at issue in
`this case, as well as an appreciation for the role that the
`interoperability these interfaces provide—and the lim-
`ited, fair, and stable copyright rules on which such in-
`teroperability depends—plays in driving innovation in
`the technology sector. Amici write to share the benefit of
`their considered expertise in this area, and to urge the
`Court to reverse the lower court’s rulings to preserve
`longstanding limits on copyright that encourage interop-
`erability and allow startups to thrive.
`
`INTRODUCTION AND SUMMARY OF
`ARGUMENT
`
`American startups are one of the most vital compo-
`nents of the U.S. economy—one of our chief sources of
`
`
`
`
`
`
`4
`
`jobs, capital, and economic growth.2 Our startups repre-
`sent some of the most important drivers of innovation in
`the world. This is starkly illustrated by a recent annual
`listing which put 33 American startups on a list of the 56
`most innovative in the world.3 And American startups
`have renowned histories to match their worldwide im-
`pact: the monster powerhouse companies of today, like
`Apple, Microsoft, Google, Yahoo!, Intel—and Oracle it-
`self—were all once small, garage-bound startups. Today’s
`startups continue that storied legacy, innovating new
`products and services that benefit every sector of society
`as they grow into tomorrow’s powerhouses. Amici and the
`companies they fund rank among the most innovative of
`these.
`
`Yet startups are under threat. The Federal Circuit’s
`multiple rulings in this decade-long battle between
`Google and Oracle have changed the rules of copyright.
`By holding that the software interfaces at issue where,
`which allow developers to access prewritten lines of code,
`are copyrightable, and use of them will rarely, if ever, con-
`stitute fair use, the lower court struck a blow against the
`interoperability copyright meant to protect—a blow that
`falls particularly heavily on startup companies.
`
`That is because startups have been able to thrive
`largely because they can use software interfaces like
`Java’s to create new and innovative products that are in-
`teroperable—interacting seamlessly with networks,
`hardware, and software. And the settled expectation of
`
`
`2 See Tim Kane, Ewing Marion Kauffman Foundation, The Im-
`portance of Startups in Job Creation and Job Destruction 3 (2010),
`<https://bit.ly/2xxx0GE>.
`
`3 See World Economic Forum, Technology Pioneers 2019
`<https://bit.ly/2yF8wiL>.
`
`
`
`
`
`
`5
`
`the startup community is that these interfaces will be
`readily available.
`
`Nationalizing the erroneous rules adopted by the Fed-
`eral Circuit would therefore usher in a regime change
`that will allow copyright-wielding incumbents to hold in-
`teroperability under lock and key—permitting them to
`decide who gets to connect to, or build upon, their prod-
`ucts, and how much would-be connectors must pay. That
`is because interfaces like JAVA are ubiquitous in software
`design, and essential for connecting different kinds of
`software components to each other, meaning that it often
`is physically impossible, or at least practically impossible,
`to design around them. In a world where interoperability
`is critical, an inability to connect to existing products
`would be the death knell for any small developing busi-
`ness. Knowing that, incumbents—and the new brand of
`copyright trolls the lower court’s decision will foster—will
`be able to make the toll for achieving interoperability
`very high.
`
`That will force many startups to pay exorbitant royal-
`ties to perform rudimentary operations, or engage in
`hundreds, or thousands, of expensive coding worka-
`rounds (when such workarounds are even possible). This
`will exponentially increase the costs of developing soft-
`ware. The likely result will be that more startups will fail,
`billions of dollars in investments will be lost, and consum-
`ers will be forced to spend far more to get far less—stuck
`with less desirable, less functional products. It is there-
`fore essential that the Court reverse the judgment of the
`Federal Circuit in this case.
`
`
`
`
`
`
`6
`
`ARGUMENT
`
`Rejecting the Federal Circuit’s erroneous under-
`standing of the copyrightability of Java’s software
`interface is essential to protect startups.
`
`This case may concern only a few lines of code shared
`between Oracle’s Java SE libraries and Google’s Android
`operating system, but its ripples will be felt throughout
`all of copyright law, the world of software design, and the
`entire American startup community. That is because the
`dominant concern in today’s marketplace is interopera-
`bility. Any new product a startup might offer must inte-
`grate seamlessly into to a world of existing networks, de-
`vices, storage, and software. The specific type of product
`does not really matter. Software, hardware, or brick-and-
`mortar business—the most innovative offerings in virtu-
`ally any field will be interoperable. Regardless of the
`product, this interoperability is ultimately traceable to
`software, and depends upon software interfaces like
`those at issue in this case.
`
`By upsetting the legal regime under which these inter-
`faces have traditionally been considered freely and widely
`available, the Federal Circuit’s rulings at issue in this case
`upset the expectations of the entire startup world, and the
`balance between incumbents and the competitors that
`sometimes follow fast behind them, adding risk, uncer-
`tainty, and expense to every step in the product-develop-
`ment process. For this Court to uphold those rulings
`would harm the prospects of virtually every fledgling
`American startup, thereby eroding cornerstones of the
`U.S. economy.
`
`
`
`
`
`
`7
`
`A. Startups depend on easy access to software
`interfaces like Java’s.
`
`Modern innovation flourishes through interoperabil-
`ity.4 Interoperability is the reason you can read a website
`regardless of the browser you use, why the email you
`wrote on your laptop, through Microsoft’s Outlook email
`application, can be read on someone else’s Apple iPhone,
`and why you can switch flawlessly from watching a movie
`on your phone to watching it on your computer, and then
`on your television. Your bicycle may be able to keep track
`of your workouts even when you are using someone else’s
`bicycle. You may be able to control the temperature of
`your house from your computer, from your phone, or from
`your watch.
`
`1. Any startup must confront this interoperative
`world, and find ways for its products to connect to the ex-
`isting universe of products, platforms, content, and ser-
`vices. Some do so by designing products that connect to
`networks—such as through the “Internet of Things,”
`which brings internet connections, and additional func-
`tionality, to familiar, every-day products.5 Some do so by
`adding features to their products that ultimately come
`from others—customizing them with readily available
`technologies. Many products, for example, add Google
`Maps, Twitter interfaces, or links to Facebook into their
`applications.
`
`Some offerings connect to, and build upon, others’ in-
`novations—thereby competing with, and sometimes
`
`
`4 See Urs Gasser & John Palfrey, Interop: The Promise and Perils
`of Highly Connected Systems 111-125 (2012).
`
`5 Kevin Ashton, That ‘Internet of Things’ Thing, RFID Journal
`(June 22, 2009), <https://bit.ly/2V0SJBJ>.
`
`
`
`
`
`
`8
`
`replacing, the original.6 This, for instance, is what Mozilla
`has done with its Firefox browser, Thunderbird e-mail cli-
`ent, the SeaMonkey Internet application suite, and the
`
`FileZilla FTP client.7 Word processing software OpenOf-
`fice8
` competes with Microsoft’s Word. Blogging platform
`WordPress is widely used.9 These offerings are all “open
`source”—they come with free licenses allowing develop-
`ers to freely modify and redistribute the program’s
`source code.10 Yet they have become popular because they
`are compatible with—even as they compete against—
`their proprietary counterparts.11
`
`2. Regardless of the type of product at issue, interop-
`erative software lies at its heart. And interfaces like the
`Java SE are critical to achieving that interoperability.
`These go way beyond Java’s particular declaring and im-
`plementing codes. They comprise a whole series of pro-
`grams, subroutines, and communication protocols provid-
`ing the basic tools for building software—with a ready
`shorthand to stand in for the sometimes lengthy underly-
`ing code. These allow hardware and software to communi-
`cate with each other, and allow software to communicate
`with other software. They also permit programmers to
`
`6 See Jonathan Band, Interfaces on Trial 2.0 1-5 (2011).
`
`7 Mozilla Products, <https://mzl.la/2IASStD>.
`8 Apache Software Foundation, Open Office, http://www.openof-
`fice.org/.
`
`9 http://wordpress.org/.
`
`10 See Open Source Initiative, The Open Source Definition,
`http://opensource.org/osd.
`
`11 See, e.g., Tim O’Reilly, The Open Source Paradigm Shift, in Per-
`spectives on Free and Open Source Software 461 (J. Feller, B. Fitz-
`gerald, S. Hissam, & K. R. Lakhani, eds., 2007).
`
`
`
`
`
`
`9
`
`use a single set of instructions to access codes that will
`translate those instructions to make them compatible
`with a host of other platforms.
`
`3. These interfaces are practically ubiquitous in pro-
`gramming, used in everything from online discussion,12 to
`web search,13 project management,14 banking,15 motion
`tracking,16 and music.17
`
`“If an app does anything interesting, it likely needs” to
`use interfaces like Java’s.18 And they are proliferating at
`a breakneck pace—with thousands created every month.
`Ibid. One popular central listing currently indexes over
`20,000—and it is probably an exceedingly underinclusive
`
`listing.19 Indeed, every startup supported by amicus
`Foundry Group uses at least one such interface.
`
`4. These interfaces have driven growth in the startup
`community because, under the legal regime that has op-
`erated until now, developers have properly assumed that
`they can use the established descriptive labels of these in-
`terfaces, and use the same connecting endpoints, as other
`familiar pieces of software for the sake of interoperability.
`This enables the creation of software for just a few
`
`
`12 Disqus, http://www.disqus.com.
`13 GitHub, Inc., https://github.com/dewitt/opensearch.
`14 Basecamp (37signals, LLC), http://basecamp.com.
`15 Simple Finance Technology Corp., http://www.simple.com.
`16 Microsoft Kinect, <https://bit.ly/2psUKdl>.
`17 Last.fm LTD, http://www.last.fm.
`18 Adam DuVander, 7,000 APIs: Twice as Many as This Time Last
`Year,
`ProgrammableWeb
`(Aug.
`23,
`2012),
`<https://bit.ly/2EkDnRh>.
`
`19 See Programmable-Web API Directory, https://www.program-
`mableweb.com/apis/directory.
`
`
`
`
`
`
`10
`
`hundred dollars that would otherwise require millions of
`dollars to produce if everything had to be coded from
`scratch.
`
`Fueled by this easy availability of connective software,
`today’s startups have been able to flourish, bringing prod-
`ucts efficiently to market with limited risk and expense.20
`Indeed, one study found that software programs imple-
`menting interfaces like Java’s make it to market 30%
`faster than those that do not.21
`
`5. The ease and predictability of creating software with
`such interfaces has attracted venture capital funding,
`which in turn has further hastened the pace of innova-
`tion.22 In 2016 alone, venture capital firms provided over
`$69.1 billion of to 7,750 companies, largely at the crucial
`“seed- and early-stage[s]” of their development paths.23
`The dramatic increase in software startups, and indeed,
`startups of all kinds, can thus be traced to the ease of
`
`
`20 Jeffery Stylos & Brad Myers, Mapping the Space of API Design
`Decisions, 2007 IEEE Symposium on Visual Languages and Human-
`Centric Computing 53-54 (2007) (IEEE Report).
`
`21 See Fern Halper, Judith Hurwitz, & Marcia Kaufman, A Web
`API Study: The Benefits of APIs in the App Economy (2011),
`<https://bit.ly/2XlcWDv>.
`
`22 See Samuel Kortum & Josh Lerner, Assessing the Contribution
`of Venture Capital to Innovation, RAND Journal of Economics
`(2000) (finding that increases in venture capital funding in a sector
`are associated with statistically significant higher rates of innova-
`tion); see also Darian M. Ibrahim, The (Not So) Puzzling Behavior of
`Angel Investors, 61 Vand. L. Rev. 1405, 1407 (2008) (discussing the
`boosts to employment and gross domestic product that investor-
`backed firms provided in the 2000s).
`
`23 Nat’l Venture Capital Ass’n, Yearbook 2017 13–14 (2017)
`<https://bit.ly/2U5bGlP>.
`
`
`
`
`
`
`11
`
`transmitting ideas into reality—in significant part due to
`the ready availability of interfaces like Java’s.
`
`B. The Federal Circuit’s rulings threaten the easy
`access to connectivity that startups need to
`survive.
`
`The Federal Circuit’s decisions in this case collectively
`make big changes in copyright law that not only disre-
`spect the interoperability copyright was meant to foster,
`but have enormous practical consequences for startups.
`
`1. Interoperability is written into copyright’s very
`soul. It lives in the limits imposed on copyrightability in
`17 U.S.C. § 102(b), which “identifies specifically those el-
`ements of a work for which copyright is not available.”
`Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 356
`(1991). Section 102(b) extends copyright protection to ex-
`pressions of ideas under easily satisfied rules, but stops
`short of protecting the ideas themselves and the “proce-
`dure[s], process[s], system[s], method[s] of operation,
`concept[s], or discover[ies]” that go into those expres-
`sions. These ideas, methods, and systems are reserved for
`patent law, subject to patent’s very rigorous standards to
`ensure only very few ideas can be monopolized.
`
`This dual-track dichotomy—between expressions and
`ideas, patent and copyright—preserves a wide realm of
`ideas and their “creative building blocks,” Paul Goldstein,
`Goldstein on Copyright § 2.3.11. It allows people to build
`upon everyone else’s ideas, to comment on them, and de-
`part from them, thereby permitting the world of ideas to
`work as a seamless, interconnected whole, in which each
`idea is accessible, and interacts and operates together
`with every other one. Through this interoperability, copy-
`right seeks to “stimulate the production of the most abun-
`dant possible array of expression,” ibid., and to provide
`
`
`
`
`
`
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`new market entrants the means to compete on equal foot-
`ing with incumbents.24
`
`2. The Court has long recognized that giving teeth to
`§ 102(b)’s dichotomy requires denying copyright protec-
`tion in instances where “expression” and “idea” (or build-
`ing blocks) overlap. Thus, since Baker v. Selden, 101 U.S.
`(11 Otto) 99 (1880), the Court has maintained that the de-
`scription of a method of operation—even an original and
`expressive one—is uncopyrightable, lest the copyright
`provided to the description capture the unprotectible
`method of operation itself. This was true of the accounting
`forms in Baker, which were not copyright-protectible
`even though they were described in a book that was pro-
`tected, because “the object of the one [the book] is expla-
`nation; the object of the other [the forms] is use.” Id. at
`105. This concession was necessary to prevent companies
`from keeping whole methods of operation locked up under
`copyright protection, cut off from interconnected world of
`ideas, simply by applying a descriptive label to them.
`
`3. Until the Federal Circuit’s decision in this case, that
`protected zone of interoperability has been universally
`extended to software interfaces, preventing them from
`acquiring protection even when they bear a descriptive
`label. So Lotus’s “menu command hierarchy” was denied
`copyright protection, despite the expressive choices that
`went into it, because that hierarchy attached to a pure
`“method of operation.” Lotus Dev’t Corp. v. Borland Int’l,
`Inc., 49 F.3d 807, 809, 816 (1st Cir. 1995), aff ’d, 516 U.S.
`233 (1996) (per curiam). Copyright has also made more
`direct concessions to interoperability. A company that
`
`
`24 See Ariel Katz, Copyright and Competition Policy in Handbook
`of the Digital Creative Economy (Christian Handke and Ruth Towse,
`eds. 2013).
`
`
`
`
`
`
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`
`copies another’s software interfaces when necessary to
`make products work with the copyright owner’s products
`has been held to constitute fair use, even when the result-
`ing product competes directly with the copyright owner’s.
`See, e.g., Sega Enterps. Ltd. v. Accolade, Inc., 977 F.2d
`1510, 1514 (9th Cir. 1992).
`
`Under these widely applicable principles, the legality
`of copying APIs and other interface components has been
`settled for over a quarter century. See, e.g., Computer As-
`socs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710-15 (2d Cir.
`1992); Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1539,
`1543-1545 (11th Cir. 1996); Lexmark Int’l, Inc. v. Static
`Control Components, Inc., 387 F.3d 522, 542 (6th Cir.
`2004); Assessment Techs. of WI, LLC v. WIREdata, Inc.,
`350 F.3d 640, 644-645 (7th Cir. 2003); Mitel, Inc. v. Iqtel,
`Inc., 124 F.3d 1366, 1374-1376 (10th Cir. 1997); Pamela
`Samuelson & Suzanne Scotchmer, The Law and Econom-
`ics of Reverse Engineering, 111 Yale L.J. 1575, 1621-1626
`(2002). Congress itself weighed in to endorse this settled
`law when it enacted the Digital Millennium Copyright
`Act, making an exception to its rules against circumvent-
`ing anti-piracy protections on software when done “for
`the sole purpose of identifying and analyzing those ele-
`ments of the program that are necessary to achieve in-
`teroperability of an independently created computer pro-
`gram with other programs.” 17 U.S.C. § 1201(f)(1). The
`software and startup communities have long relied on this
`legal framework, under which software interfaces like
`Java’s have always been freely available to develop soft-
`ware.
`
`4. The rules applied by the Federal Circuit below have
`changed all this, and in the process undermined concepts
`of interoperability hardwired into copyright law. The
`lower court erased Baker’s
`limits against giving
`
`
`
`
`
`
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`
`protection to an expressive description when necessary to
`preserve the availability of the modes of operation de-
`scribed. It did so by holding that § 102(b) served only to
`codify the “idea/expression dichotomy”: the principle that
`“[c]opyright protection extends only to the expression of
`an idea—not to the underlying idea itself.” Pet. App. 137a.
`Through that interpretation, the Federal Circuit limited
`§ 102(b)’s applicability, relegating it to distinguishing
`among the elements within a particular piece of software
`that could be protected, rather than the different types of
`software could be given copyright protection. And if the
`Court were to adopt those rules, it would lock up the
`modes of operation embodied in the implementing code
`within Oracle’s software interfaces.
`
`Further, while the law until now has limited copy-
`rightability in software interfaces because of their useful-
`ness in achieving interoperability, the Federal Circuit’s in-
`terpretation of the merger doctrine refuses to give any
`ground to interoperability even in circumstances where
`there is literally no way to avoid using the interface—
`where a workaround is impossible. The principle of mer-
`ger provides that “[w]hen there is essentially only one
`way to express an idea, the idea and its expression are in-
`separable and copyright is no bar to copying that expres-
`sion.” Concrete Machinery Co. v. Classic Lawn Orna-
`ments, Inc., 843 F.2d 600, 606 (1st Cir. 1988). Yet the Fed-
`eral Circuit deemed this principle “irrelevant” to the cop-
`yrightability of Oracle’s APIs, and was in any event not
`satisfied, because Sun could have written the declarations
`in more than one way. App., inf