FOSS Patents

For a blog with "patents" in the name it would actually have made a lot of sense to start the discussion of the Epic Games v. Apple ruling with the intellectual property aspects of the case. But I had to combat disinformation of app developers regarding the practical effects of the injunction (should it ever be enforced).

The court ruling is unfair to Epic with respect to what it actually wanted and argued. (Some would argue that it's unfair in other ways, too, but I wish to keep a narrow focus in this post.)

In the decision, Judge Yvonne Gonzalez Rogers accuses Epic of "overreach" and suggests that Epic wanted Apple to receive nothing from app developers, though even her own decision notes that "Epic Games does not venture to argue that Apple is not entitled to be paid for its intellectual property." The passage I just quoted is an understatement. Epic's counsel unequivocally said during closing argument that Apple is entitled to reasonable and non-discriminatory compensation for any intellectual property, but an antitrust case is always about putting an end to illegal practices (without necessarily replacing them with an alternative compensation scheme right away). It was not about a free ride. It was about not letting Apple (ab)use its App Store monopoly, and subsequently one could still talk about IP (but not in that same case).

I have no idea what Epic's appeal will focus on, but I wouldn't be surprised if the appeals court agreed with Epic that a sequential approach is precisely the way antitrust law works: you stop the illegal practice first, and then the defendant can come up with a new practice, which may invite further challenges (but those won't happen, or at least won't have merit, if the new practice is reasonable and non-discriminatory). The appeals court may tell the district judge that the purpose of a unilateral conduct case is not to replace an illegal practice with a legal one.

One question that some people are asking themselves already is whether Apple will seek its App Store commission on payments made outside an iOS app but because of an app linking out to, for example, a website. As I explained in my previous two posts, there's no way that Apple would have to tolerate alternative payment systems. The court made it clear that it's just about generating awareness for offerings on other platforms while Apple remains free to require the exclusive use of its own IAP system, and Apple will benefit from the legal standard, which allows Apple to interpret the injunction (in light of the underlying order) in the way most favorable to its own interests, as long as it's not unreasonable.

In practical terms, it would be possible but a real hassle for Apple to have to collect app commissions from developers that are generated through other payment systems. Apple couldn't possibly audit each and every developer's books. Maybe it could impose some severe penalties for fraud and then just perform audits in suspicious cases plus a few random audits. But we don't really have to think too much about that. Again, the injunction--if and when it actually gets enforced--is not going to be a major problem for Apple. They can reasonably interpret the court ruling as not having to condone any "end run" around its IAP rule, such as a mere web shop where users purchase digital items they consume on iOS.

With some console makers not allowing cross-wallet/cross-purchase (or seeking an additional compensation for cross-play), Apple could take the same position now. That would have political implications, but the Epic v. Apple ruling doesn't prohibit it.

As some people are discussing now, the court says that Apple could collect a commission even on sales through other app stores--though it would then be an IP license fee in the form of a percentage of sales, which is why the term "commission" doesn't fit. I think the court should have defined the term more narrowly. (On a previous occasion I also criticized Apple for broadening its meaning.)

What the court got absolutely right is that the 30% cut is not a market rate for the intellectual property in question. The court even takes note of "Apple’s low apparent investment in App Store-specific intellectual property." The commission is practically imposed and enforced because of Apple's app distribution monopoly. The term "gatekeeper" (which is very popular in EU tech policy and law) doesn't appear in that ruling, but that's what it's all about.

That leads us to an interesting question: what is the commission rate going to be in a future scenario (it's really a question of when--not if--this happens) where new legislation and/or a successful appeal by Epic would do away with the gatekeeper toll and would instead leave Apple with only one tool at its disposal--IP enforcement--to collect money from developers?

What if (actually, when) developers can publish iOS apps without depending on Apple's app review because they can go through alternative app stores (and "sideloading")?

The Epic v. Apple ruling explains the following:

"Apple distributes its basic developer tools for free but charges an annual fee for membership in its developer program to distribute apps and which allows access to, for instance, more advanced APIs (many of which are protected by patents, copyrights, and trademarks) and beta software."

"Apple’s intellectual property as it relates to the iOS ecosystem generally are significant. The record is undisputed that Apple holds approximately 1,237 U.S. patents with 559 patent applications pending. With respect to the App Store itself, Apple holds an additional 165 U.S. patents with 91 more U.S. patent applications pending. Other than these patents, Apple does not identify specifically how the rest of its intellectual property portfolio impacts the technology at issue in this case nor does it specifically justify its 30% commission based on the value of the intellectual property. It only assumes it justifies the rate."

Given this year's Supreme Court decision in Oracle v. Google, I can't see how developers' use of Apple's APIs would not constitute fair use. Google even got away with incorporating APIs into a new product that competed with (and ultimately displaced in the mobile market) the original platform (Java). Developers, however, don't use Apple's APIs to build a new operating system: instead, they build applications, with a strong presumption in each case that it constitutes transformative use.

Patent counts mean little. Epic wasn't going to turn this antitrust dispute over Apple's App Store monopoly into a declaratory judgment case over Apple's iOS and App Store patents.

If Apple had to resort to patent litigation against app developers in order to collect a commission, it would have to overcome developers' non-infringement and invalidity defenses. Developers would likely also raise equitable defenses, but let's not get into that here.

Those patent numbers may seem staggering, but they could melt down very quickly as most of those patents might simply never be infringed by a developer and others might get invalidated once challenged. If any valid patents are actually infringed, the next question is whether developers could work around them. Let's assume, just hypothetically, that there would be one or more valid patents left that are infringed and cannot be worked around. Then we get to the remedies stage.

Seriously, Apple wouldn't get anywhere near 30% (or even 15%) of developers' revenues in the form of damages or ongoing royalties.

The only way Apple could theoretically still get its 30% cut would be if it obtained an injunction. In the U.S., Apple would have to meet the eBay v. MercExchange standard. Developers would argue that Apple actually benefits from the availability of apps and makes money on its devices. That would up the eBay ante for Apple. In some other jurisdictions, particularly Germany, Apple could obtain injunctions more easily, but it probably has fewer patents there.

Even if Apple obtained an injunction, it might then face an antitrust challenge to its rates--with the same arguments Apple makes against standard-essential patent (SEP) holders. Sure, Apple would argue that it never made a FRAND licensing promise with respect to its iOS IP. But in Europe, SEP case law is antitrust-, not contract-based, and Apple made the same arguments there (and it also brought antitrust claims in the U.S. over SEPs, such as against Samsung, though in vain, and against Qualcomm, though the San Diego Apple v. Qualcomm case settled during opening arguments).

To sum it up, Apple needs the gatekeeper's leverage to collect its 30% (or 15% under the Small Business Program) commission from app developers. On an IP basis, at least in the U.S. (where it would likely be denied patent injunctions against developers), Apple would get nothing or a much smaller amount. In light of the risk-opportunity ratio, Apple might not even have an incentive to bring any IP infringement litigation against developers.

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Based on how the Google v. Oracle Supreme Court hearing went in October 2020, it appeared to be a given that the Java APIs in question were copyrightable, and the fair use debate was over whether the Federal Circuit had correctly ruled against Google or whether the San Francisco jury would have had to be afforded so much deference that a judgment as a matter of law wasn't warranted. In the former case, the case would have gone back to San Francisco for a remedies determination. In the latter case, the Federal Circuit would likely have remanded for a retrial, as Oracle was disadvantaged by the district court.

Surprisingly, the Supreme Court has just declared Google's copying of thousands of lines of declaring code to be fair use, thereby substantially weakening software copyright protection in the United States as there had not previously been a case involving such a substantial amount of undisputedly original and creative program code that someone else was allowed to incorporate into a competing product and distribute billions of times.

This decision was supported by six of the nine justices. Only Justices Thomas and Alito dissented (and noted that the majority didn't want to address copyrightability because it couldn't have reached its fair use conclusion thereafter). Justice Barrett was appointed after the hearing.

The per curiam focuses only on fair use. Copyrightability didn't have to be addressed as the case has been resolved in Google's favor, more than ten years after it was brought. Last July, I already expressed concern that the court might not say much about copyrightability. At the time, I wrote:

"If the Supreme Court answered the 'fair use' question in Google's favor on the basis of jury deference [it now actually did so on the merits], it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit's copyrightability holding would be affirmed explicitly or (by reaching "fair use") mostly implicitly, the copyrightability of API code would continue to be a reality in the United States."

Given that the justices were pretty much unanimously leaning toward copyrightability in October, it would be quite risky for anyone to consider API declaring code uncopyrightable. However, technically the Federal Circuit's copyrightability decision hasn't been affirmed either.

Contrary to what many others will say, today's decision is bad news for software developers. We do need certain fair use rights, sure. But overreaching fair use encourages infringement. The simplest way to put it is this: if someone created a platform and later turned around on developers, alleging copyright infringement by continuing to use some API code in the apps themselves, that would raise issues--and if developers didn't have an equitable defense anyway, they should at least have fair use rights. In Oracle v. Google, however, the issue was much more narrow: it was about a new platform using another platform's API code to compete--in fact, displace--the older one.

The syllabus says: "In reaching this result, the Court does not overturn or modify its earlier cases involving fair use." That sounds like the ruling is meant to be of only a narrow scope. But it doesn't change anything about this being a major departure from what the fair use standard used to be, especially with respect to software. It definitely stretches the envelope, weakening copyright as a vehicle for protecting software.

Copyright and patents are intellectual property regimes that were created in centuries before the advent of computer programs. Without digressing into details, software patents are among the most controversial categories of patents (second only to so-called "patents on life"). With copyright, there are plenty of issues as well. For example, it is commonly accepted that object code--and not only source code--is protected by copyright. But object code is technical, binary, machine-readable, not human-readable. It's a stretch to apply copyright protection to object code, but in the alternative one would have to come up with a software-specific sui generis IPR. It has been suggested that a sui generis right--somewhere between copyright and patents--is needed, though no such initiative has gained traction to date. I wouldn't rule out that it might happen in the future, but certainly not in the near term.

There are also external factors due to which copyright protection of software as well as software licenses that rely on copyright to mandate reciprocity, which is called copyleft (and also weakened by today's ruling) are less key today than they were, say, 20 or 30 years ago: cloud computing and platforms.

• When software actually gets distributed to end users, it's much easier to identify copyright infringements. And copyleft generally applies only to distribution. As long as software stays on a server, it may commit infringements that are never detected, and most copyleft licenses just don't apply.

• In the platform economy, might all too often makes right. That's why Epic Games is suing Apple (the trial is less than a month away). Apple's airtight control of iOS and of what gets installed on a billion users' devices doesn't depend on whether APIs are copyrightable or whether software is patentable. Some copyright protection is needed because otherwise someone could just steal iOS and build alternative iOS devices--but they don't even need to own the copyright in their APIs as long as the operating system allows only Apple's own App Store to install apps, which in turn are "curated" by Apple and only Apple. It's all about market power, and the only remedy against that one is antitrust--or antitrust-like laws such as the upcoming EU Digital Markets Act--as fair use wouldn't open the App Store.

  There's plenty of people out there now who are celebrating today's Supreme Court decision as promoting innovation, competition, and openness. In reality, the net effect will be the opposite. When Sun created Java, they allowed everyone to make and publish apps for it. Sun adopted a dual-licensing model under which you could either get Java under the GPL free software license or take a commercial license. Sun is history--it was acquired by Oracle. The next company contemplating the development of a comparable platform will look at what happened in Oracle v. Google. Against that background, it may either be discouraged from making the investment in the first place--or it may be encouraged to pursue an Apple-like platform business model ("walled garden") and create network effects through a non-open system with cloud components, an exclusive app store, and so forth. In other words, if you can't own software, you'll try to own (access to) users.

The case appeared dead in 2012 after the district judge held thousands of lines of program code uncopyrightable, and a few years later after a second jury agreed with Google on fair use. The appellate attorney they call the Defibrillator, Orrick Herrington Sutcliffe's Joshua Rosenkranz, twice managed to revive the case. Every time he won an appeal, Google appointed a new lead counsel. Ultimately, Goldstein &, Russell's Thomas Goldstein won the case for Google. (By the way, Mr. Rosenkranz is on Apple's team against Epic, so we may soon see him in action in a high-profile software platform case.)

Lawyers are not the reason Oracle lost this. Google's network of allies and supporters, including a number of organizations funded by Google, have for more than a decade been campaigning against Oracle's case. Oracle never managed to convince large parts of various relevant communities (which are mostly just vocal minorities) that what it was trying to achieve here would ultimately be good for developers. Certain justices indicated at the October hearing that they were aware of widespread concern over an Oracle victory being harmful to software development. That was just fear, uncertainty, and doubt (FUD). But it worked.

It may also have helped Google that the Supreme Court has had to overrule the Federal Circuit in a number of patent cases, so the Fed. Cir. may have a certain reputation of being exceedingly right holder-friendly. I've seen Federal Circuit decisions that really went too far. In this case, however, the Federal Circuit was absolutely right about (un)fair use.

[Update 1] I tweeted this remark concerning the term "user interface":

„User interface“ is apparently a term with an ever-expanding scope. Until I saw the passage attached to the tweet below, I used to think the Java APIs weren’t a UI. I know other cases where API and UI overlap, such as SQL queries or when I manually made SYS calls on a Commodore. https://t.co/OgbH27qkd1

— Florian Mueller (@FOSSpatents) April 5, 2021

[/Update 1]

[Update 2] Oracle issued the following statement attributable to Dorian Daley, Oracle's EVP and General Counsel:

"The Google platform just got bigger and market power greater — the barriers to entry higher and the ability to compete lower. They stole Java and spent a decade litigating as only a monopolist can. This behavior is exactly why regulatory authorities around the world and in the United States are examining Google's business practices."

[/Update 2]

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I live-tweeted about the Google v. Oracle America oral argument before the Supreme Court, and about five minutes into the hearing I already felt that Google was likely to lose the copyrightability part. After all justices had indicated where they stood on that question, or what they were interested in, there was no more doubt to me that Oracle will win that part by a unanimous or near-unanimous decision--but "fair use" is harder to predict, with a remand to the Federal Circuit being a possibility. Yesterday I published the justices' copyrightability statements/questions and commented on them.

Timothy B. Lee, who opposes API copyrightability, wrote on Ars Technica that Google's Supreme Court faceoff with Oracle was a disaster for Google, and it appears the finger-pointing is already in full swing. Lots of law professors supported Google for ideological reasons and maybe because they were misled about the expressive and original nature of API declaring code. One of them, Cornell's James Grimmelmann, is quoted by Ars Technica as blaming Google's lead Supreme Court counsel, Thomas Goldstein, for having done "an abysmal job." I actually saw Mr. Goldstein at his best when he represented Qualcomm before a Ninth Circuit panel earlier this year, and I wouldn't attribute to his performance on Wednesday an outcome that can and actually must be explained with the spuriousness of Google's non-copyrightability argument. Of course, one could have tried to take a different angle on the issue, and Professor Grimmelmann would have preferred Mr. Goldstein to make a more coding-centric argument. Considering how the justices approached the subject, however, Mr. Goldstein's strategy might have been the better choice--just that declaring code is program code, and program code is copyrightable if it's original and expressive.

What I don't like, though, is how he played fast and loose with the facts and the procedural history of the case, especially in the "fair use" context. I heard him say a variety of things that flew in the face of what I knew about this dispute that I've been following for a decade, longer than any other. But without verifying this based on the documents I've downloaded since August 2010, particularly by fact-checking against the Joint Appendix that was submitted to the Supreme Court (Volume 1 (pages 1-341), Volume 2 (pages 342-725)), I didn't want to accuse him of lying before at least refreshing my recollection. The bottom line is that his representations to the top U.S. court lacked veracity, even to the extent that I think he owes the justices an apology.

In the following, I'll highlight ten misrepresentations, in increasing order of relevance to the "fair use" decision:

10. "No summary judgment"

In connection with the standard of review, Oracle told the court that most fair use determinations are made by judges on summary judgment. This case is one, however, in which fair use was put before a jury, but the Federal Circuit determined that judgment as a matter of law (JMOL) was warranted. Justice Gorsuch asked Mr. Goldstein the following question:

JUSTICE GORSUCH: Briefly, just to follow up on -- on that, Justice Sotomayor's question.

Mr. Stewart [Deputy Solicitor General of the United States] argued that if -- if we were to uphold the jury verdict or send it back on fair use, that we would be negatively impacting summary judgment practice and that most district courts take these questions up as a matter of law in summary judgment.

Justice Gorsuch raised a legitimate concern, one that may very well be shared at least by his conservative colleagues, and Google will need at least one conservative vote to win a remand. As part of his response, Mr. Goldstein said: "Oracle didn't move for summary judgment in this case."

What Mr. Goldstein overlooks are three inconvenient facts, any single one of which makes his statement less than truthful:

• In the first Federal Circuit appeal (the one that resulted in a copyrightability holding and a remand of "fair use" for retrial), Oracle clearly argued that the fair use question should be resolved by the judges and not be put before a jury.

• On remand, Oracle simply wasn't allowed by Judge William H. "I taught myself Java" Alsup to bring a motion for summary judgment. Here's the related excerpt from a February 2, 2016 hearing transcript:

  THE [DISTRICT] COURT: All right. Now I want to go to another thing. I -- that you all are bombarding me with. I don't intend to entertain summary-judgment motions and dispositive motions. Whose idea was that?

  We had the Federal Circuit order me to give you a trial. I'm going to give the trial. And if the evidence shows that Rule 50 [judgment as a matter of law, which comes at a later stage than summary judgment] should be granted at the end of the trial, okay. I can do that on the evidence at trial.

• Google itself had moved for summary judgment on fair use back in 2011 (and lost, as I reported at the time).

9. "Java SE was not in smartphones"

Google argues that its use of the Java API declaring code is "transformative," which would weigh in favor of fair use (the first factor is "the purpose and character of the use"). But the problem is that transformative use in copyright is clearest when you create, for instance, a parody of something, or a cover version of a song 50 years later that has a completely different style. Google just claims that they took Java SE (SE means "Standard Edition") to smartphones, but that has simply been disproven over and over.

While Mr. Goldstein conceded that Google didn't really have a strong case for the court determining that what Google did was fair use, so his realistic best case is a remand based on the standard of appellate review of a jury verdict, he nevertheless repeated that long-debunked misrepresentation to the Supreme Court:

"[T]he jury was entitled to conclude based on the record evidence that this was an entirely new context, the Java SE was not usable in this particular -- in a smartphone"

What a disgrace.

Even Danger, Andy Rubin's company that subsequently created Android, used Java SE in the T-Mobile Sidekick smartphone. On page 370 of the Joint Appendix I found that old Rubin testimony about how they used Java SE:

Q. And that was the Sidekick/Hiptop that we talked about?

A. Yes.

Q. And you put Java to SE APIs in Hiptop; is that right?

A. Yes. We created our own implementation of the Java 2 SE APIs for Hiptop.

11 pages before that passage, Mr. Rubin confirmed that the Sidekick was a smartphone:

Q. And when you described that Sidekick phone as one of the—the first smartphone, I believe you said, is it the kind of smartphone that we’re familiar with today, the modern Android and iPhones?

A. More or less. I mean, it did a lot of the same functionality. It allowed you to surf the Web, get the full Web on a phone. It had a larger screen. The screen could be in landscape or portrait mode. It did instant messaging. It did email and things like that.

So what Mr. Goldstein said was plain wrong even with respect to Java SE, in the words of Android's founder--and Java SE was furthermore used to build the SavaJe platform, "a Java OS for advanced mobile phones" as Wikipedia says. But focusing on just Java SE is nonsensically narrow anyway. Many years back I explained that Java itself was used in BlackBerry and Nokia smartphones.

8. "Google expert said expressly Android has not superseded Java SE"

This here relates to the fourth fair use factor ("the effect of the use upon the potential market for or value of the copyrighted work"). Oracle's multi-billion-dollar damages claim is based on how Android displaced Java in the smartphone market, where it already had significant traction as explained before.

The breadth of the following statement by Mr. Goldstein toward the end of the hearing makes it a falsehood or even something much worse:

"Mr. Rosenkranz says that Android supplanted and superseded Java SE. Page JA 255. The market harm expert says expressly Android has not superseded Java SE."

Actually, when I looked up the passage of the Joint Appendix that Mr. Goldstein, it turned out that he misleadingly took the statement out of context. There is one answer by Google's market harm expert that says the following:

"It has not superseded – Android has not superseded Java SE."

But just a few lines above, the same Google expert referred to Java SE as a programming platform for only personal computers! Here's the full passage, and it belies Mr. Goldstein's sweeping claim:

Q. Can you please tell us what your understanding is.

A. Java SE is one of the Java applications programming platforms. And it’s the one that specifically was designed for desktop computers.

Q. Did you reach an opinion as to whether or not Android had superseded Java SE in the market? [emphasis added]

A. I have.

Q. Can you please tell the jury what that opinion is.

A. It has not superseded – Android has not superseded Java SE.

Q. Do you have reasons for reaching that opinion? If so can, you explain them?

[1898] A. Yes, I have two reasons. The first is that the two products are on very different devices. As I just mentioned, Java SE is on personal computers. Android, on the other hand, is on smartphones. [emphasis added]

The full context leaves no room for doubt. But here, again, there's something to add: literally minutes after that Google expert left the stand, Google made an announcement (do you believe that timing was pure coincidence?) that Android was going to compete with Java SE in the desktop computer market (see two 2016 blog posts of mine about this: 1, 2).

7. "API declaring code is barely creative"

In connection with the second fair use factor ("the nature of the copyrighted work"), Mr. Goldstein made the following statement that flatly contradicts even Google's own testimony:

"importantly, the fact that the original material here, the declarations, is barely creative"

As I already reported in 2011, Joshua Bloch, Google's chief Java engineer and top Java expert, testified the following:

Q. Would you say that designing APIs is a creative activity?

[objection to form, by Google lawyer]

THE WITNESS: Yes, absolutely.

So here you have Google's Supreme Court lawyer in 2020 saying the opposite of what Google's top in-house Java expert said nine years earlier when he testified under oath. Which one of the two do you believe? And which one of the two (if any) would you say is more likely to have told a lie than the other?

6. "new declarations only written in a new language"

Throughout this dispute Google has been trying to portray the APIs as being inextricably linked to the "free" Java programming language (the commands). Even the district court didn't buy that.

But Mr. Goldstein reiterated this on Wednesday:

"The computer scientists' brief at page 18, the Microsoft brief at 14, explain that both Apple and Microsoft, Oracle's examples, did re-implement prior interfaces. The reason that they didn't use these interfaces is they were using a different language, as if they were writing in French, rather than English."

As I noted yesterday, the Supreme Court is well aware of the fact that Apple and Microsoft (the latter even supporting Google here on fair use, though not on copyrightability) created smartphone operating systems without stealing anything from Oracle. Sure, Apple relied initially on Objective C and Microsoft on C# (the latter being pretty basically a Java clone, which I personally used a lot and like a great deal). But Oracle's Supreme Court brief notes that Spring and Log4J both wrote different declaring code for their own prewritten programs in the Java language that perform similar functions to those in Java SE.

5. "APIs never licensed separately from the Java language"

This is technically somewhat related to the previous item. And just as untruthful:

"The evidence at trial, for example JA 56, is the former CEO of Oracle saying that the APIs were never licensed or sold separately from the language, in contrast to his just base [?] assertion that IBM was paying for it."

Sun and Oracle offered the Specification license, which does exactly that, and large companies like IBM, Microsoft, SAP, Red Hat, and Oracle (before it acquired Sun) all took Specification licenses to the declaring code and then wrote their own implementing code. The Joint Appendix mentions all of that, mostly on pages 301-304 and 402-409. It's a fact that I fought against Oracle's acquisition of Sun, especially but not only in the EU, and Microsoft and SAP were co-complainants, which is also well-documented in the media. They wanted to prevent the deal from happening because of that very type of license!

Also, don't be misled: the "CEO of Oracle" here was Jonathan Schwartz, who despite his legal department telling him as early as 2007 that he should sue Google, never wanted to act. He was Sun's last CEO, he failed, and that's why Sun lost its independence. Oracle had to buy Sun because it was about to go bankrupt without an acquirer. Again, I know that subject well because I was a vocal opponent to the deal. I even organized and conducted a Wall Street analyst briefing (Westin on Times Square) in October 2009.

4. "no proof IBM paid for declaring code"

The passage I quoted under the previous subhead suggests that IBM was not paying for it. But there was undisputed trial testimony that IBM, and others, paid for a license to the declaring code without simultaneously licensing the implementing code (pages 301-304 and 402-410 of the Joint Appendix).

3. "Oracle seeking to block millions of apps"

Mr. Goldstein said:

"Here you have minimally creative declarations and they are being invoked to block the publication of millions of programs on an innovative smartphone platform."

The "minimally creative" part, which contradicts Google's own in-house Java expert's testimony, is totally incorrect anyway, but what's just as wrong is this allegation that the case is about blocking millions of apps in any way.

Oracle gives all programmers a free license to use Java SE to write apps that run on numerous licensed platform implementations of Java SE, including from Oracle's competitors. I'm sure I'd know if Oracle had ever sought any kind of relief against a single app or app developer just because they used the Java APIs. This case has nothing to do with app developers writing applications that run on Java SE. This case is about companies who build rival platforms. Oracle is simply seeking to require companies who seek to use Oracle’s investment to create a direct rival platform to take a license and agree to the compatibility requirements that benefit developers. All rival platform developers complied--until Google decided to just use the stuff without taking either an open-source or a commercial license, both of which Sun offered.

2. "industry expectations and practice"

Industry doesn't make the law. Congress does, courts interpret it. But courts do take the world outside into consideration, and Mr. Goldstein said the following:

"I don't think there is actual debate about the expectations of the industry. And they have nothing to do with licensed reuse of interfaces. The --there is a widespread consensus in the industry and among computer scientists that this has been the practice."

Concern about "upending" an industry practice is a potential factor in the Supreme Court's decision. But what Google's lawyer describes as "undisputed" was actually controverted by some, and even the district court disagreed with Google. It excluded Google's "industry custom" expert because he did not have the goods. He sought to testify about an industry custom of unlicensed copying without identifying any examples of unlicensed copying — relying instead on licensed copying (page 470). Having failed to establish the record for its argument in the most sympathetic court it ever faced in its history, Google tried to establish the point with amici curiae who similarly did not distinguish between licensed and unlicensed re-implementations and who conflated open-source use pursuant to a license with unlicensed use. At any rate, large software companies like SAS, Synopsys, and Mathworks along with the CEO of EMC (Joseph Tucci) and the former CEO and CTO of Sun Microsystems (Scott McNealy) all submitted amicus briefs refuting that there was such a thing as an industry-wide consensus of unlicensed copying being above board.

1. "benefit to developers"

It's almost funny how Google tries to paint a picture of being so altruistic that it really just had the best in mind for app developers ("reusing the minimally creative declarations allowed the developers to write millions of creative applications that are used by more than a billion people"--and "minimally creative" was addressed further above, but here the focus is on the alleged concern for developers).

It's not that I, as an app developer, am not grateful to both Apple (which didn't take anything from Oracle/Sun) and Google for the market opportunity they've created. My posts on the ongoing app store antitrust matters (such as 1 and 2) hopefully reflect my efforts to be a voice of reason in that context amid all the bashing of platform makers that I see elsewhere on the web.

But as a developer I depend on copyright and also want platform makers to respect it. Google could have benefited developers without Java, and if it wanted to do Java, it could simply have taken any of multiple licenses offered by Sun and Oracle and benefited developers. Google even rejected the free open-source license. All that Google would have had to do was agree that it and anyone who reused its code would also make their code available on such terms ("copyleft"). Google refused that quid pro quo because it concluded it would not be in its business interest (Joint Appendix, page 367). Helping programmers looks like a pretext to me, also in light of the various ways that Google protects its own APIs now and tries to lock app programmers into Android in various ways.

The bottom line is that Mr. Goldstein said a number of things that were misleading at best and mendacious at worst. He's impressive, but he may have gone too far in his vigorous efforts to secure the best possible outcome for his client Google.

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Judge William H. Alsup of the United States District Court for the Northern District of California may go down in history as the only U.S. judge ever to have found that code related to application programming interfaces (APIs) is not copyrightable only because it's related to APIs. Or one of only two judges, should Associate Justice Sonia Sotomayor dissent from what otherwise looks like a unanimous affirmance of the Federal Circuit's copyrightability holding. But even Justice Sotomayor is at best having second thoughts and far from being totally in the tank for Google on this part.

The points that Google's attorney, Thomas Goldstein, made on the copyrightability part were simply ridiculous (he's a fantastic lawyer--the problem is that Google has no non-copyrightability case), and in the first part, every one of the Justices asked questions that suggested a strong inclination to side with Oracle on this part.

There was pretty much a consensus that copyrightability is determined based on the situation when something is written, so the merger and method-of-operation exceptions don't apply if they're basically used as a defense to subsequent infringement (which is where fair use comes into play, but irrelevant to copyrightability). Therefore, Google has no path to victory on copyrightability. Game over in that regard.

I've been saying for about ten years--and this case just celebrated its tenth anniversary in August--that regardless of the Merger Doctrine or any other theory, API declaring code is simply code. The Supreme Court of the United States made it clear today, and will do so in writing. I already considered this outcome quite likely when I looked at a procedural order three months ago.

Words cannot express how much I look forward to the SCOTUS opinion after all of this time and absolutely unjustified attacks. Certain morons will get their comeuppance. But, to be very clear, there are some people who sided with Google on this question whom I respect a great deal. Those people know, or they can figure based on how respectfully I've interacted with them at all times, and because they didn't disparage me regardless of our disagreement on API copyrightability. By "morons" I only meant the unreasonable ones who blamed me in unacceptable ways against the backdrop of what was simply a massive legal error on the district judge's part.

Now, with respect to fair use, the problem is the standard of review because the "fair use" finding was a jury verdict.

Orrick's Joshua Rosenkranz argued that the Federal Circuit applied the "no reasonable jury could have found otherwise" standard, but that the correct standard would be de novo for the legal conclusions that a fair use determination involves.

My feeling is that the Supreme Court may find that the more deferential substantial evidence standard needs to be applied, and that in this case a majority of the justices may very well remand the case to the Federal Circuit. It's also possible that Oracle wins affirmance on "fair use" (especially since a split 4-4 decision would be sufficient for affirmance), but I doubt it. There appears to be some concern among the justices that with all the support Google got from amici curiae warning against the consequences of affirmance they somehow feel they shouldn't decide against what Google managed to present as industry practice and expectation.

Assuming that there is a remand of the "fair use" part, which I consider more likely than the other way round (though nowhere near as certain as affirmance of the copyrightability holding), the Federal Circuit would not be too likely to overrule the jury again. But it would then pick up where it left off last time, and Oracle had strong arguments (that also appeared to get traction with the appeals court) for a retrial. Judge Alsup made some pretrial decisions that unfairly disadvantaged Oracle.

I think is a clear case of unfair use, but I'm like ten times more interested in the copyrightability part, and so happy that this one is going to be clarified for good. I was the only one to openly welcome Google's petition for writ of certiorari despite hoping for affirmance. That's because I'm all about the issues, not about the parties. I wanted the copyrightability part to be resolved for good, and on a nationwide basis. A Federal Circuit decision applying Ninth Circuit law would have been of only limited value--it wouldn't have been binding on anyone, not even on the Federal Circuit itself. The highest court in the land is going to provide definitive clarification that API code is not going to be treated differently from a copyrightability point of view than other program code. It's about original creativity, stupid.

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For a few years I've limited my commentary on the Oracle v. Google Android-Java copyright case to procedural matters, without reiterating the reasons for which I believe the thousands of lines of Java API code asserted in that case are protected by copyright, and their use by Google was unfair. While I agree with Oracle on substance, I did publicly support Google's successful cert petition because I care about the key issues far more than about specific cases.

I'm going to continue to steer clear of arguing the issues. But I am still following the proceedings, and I have bad news for those who hated the Federal Circuit's copyrightability holding: with respect to copyrightability, it looks like Google is more likely than not to lose.

Due to the coronavirus crisis, oral argument was postponed on very short notice in mid-March, and later rescheduled for the next term (October 2020 at the earliest). Then, in early May, the following order was entered:

The parties are directed to file supplemental letter briefs addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard. The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, August 7, 2020.

This is about deference to the jury with respect to "fair use." The jury had found in Google's favor, so this is, per se, a potential Get Out of Jail Free card for Google, and apparently one that a group of law professors had raised in an amicus curiae brief. But it also means Google's non-copyrightability argument is struggling--or may already have failed definitively--to get traction with the top U.S. court for the second time in about six years.

That's simply because the second question ("fair use") won't be reached unless the first (copyrightability) is answered in the negative for Oracle. "Fair use" is a defense to infringement, and you can't infringe what isn't protected in the first place.

It's unclear how many justices proposed the request for supplemental briefing. It might have been only one, but it will have taken support from several others for this order to be entered. There is quite a possibility of multiple justices--potentially a majority--already having concluded that Google can't prevail on its non-copyrightability argument. The hearing was postponed on such short notice that many if not all of the justices are quite informed; at a minimum, their clerks had concluded their analysis at that stage.

If the Supreme Court answered the "fair use" question in Google's favor on the basis of jury deference, it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit's copyrightability holding would be affirmed explicitly or (by reaching "fair use") mostly implicitly, the copyrightability of API code would continue to be a reality in the United States.

In the same scenario (and I'm not suggesting that it's likely--the fact that the SCOTUS requests additional briefing doesn't mean it will necessarily agree with Google on jury deference), those opposing the protection of API code under copyright law wouldn't really make headway beyond this particular case (and even in that one, there'd simply be a remand to the Federal Circuit). It would be a procedural decision, centered around the standard of review, far short of agreeing with Google's "fair use" defense in its own right--and next time a different jury, ideally instructed by a different (more balanced) judge, might simply find otherwise. It wouldn't be precedential with respect to the substantive issue.

After Oracle won the first of two rounds in the Federal Circuit (with Orrick Herrington Sutcliffe's Joshua Rosenkranz as lead counsel), Google already requested certiorari, but the Supreme Court declined. That fact, combined with the May 4, 2020 order that implies copyrightability, suggests quite strongly that Google is facing an uphill battle in that regard.

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Last January (2019) I wrote that I wanted Google to be granted certiorari (Supreme Court review) of Oracle's copyright win(s) in the Federal Circuit, but I also made it clear I wnated affirmance (no surprise to anyone who knows what I wrote about the case in previous years). The first wish has come true: on November 15, Google's petition for writ of certiorari was indeed granted.

I'm not going to reiterate positions on the merits that I'm tired of repeating. A while ago I stopped doing that, and instead I just wish to talk about procedures.

Google's cert petition had two parts: copyrightability and "fair use." The Supreme Court sometimes grants petitions with respect to only one question. Copyrightability was already raised years ago (but at an interlocutory stage) and that petition was denied. Now the top U.S. court will look into both questions, which is a good thing given the importance of the issues.

If Google prevails on copyrightability, the case is over. I can't imagine that a conservative Supreme Court majority would disagree with Oracle on the standard for copyright protection, for the reasons I stated on many past occasions. But if it happened, Oracle would have no case.

Assuming that Oracle defends its copyrightability win, the case will then hinge on "fair use." Here, Oracle needs affirmance of a judgment as a matter of law (JMOL) that the Federal Circuit found Judge Alsup in San Francisco should have entered (but didn't, as he did hardly anything throughout the years that didn't disadvantage Oracle).

Google's "fair use" opportunity is that U.S. courts generally afford immense deference to jury verdicts. The standard for JMOL is very high. I still believe, as my longstanding readers know, that JMOL was perfectly warranted here. If the Supreme Court views it the same way, after affirming copyrightability, then the case will go back to the trial court for a determination of remedies. In that context, it may just be about damages. Oracle could seek an injunction, but Google has meanwhile changed its open-source licensing strategy for Android.

There's also a possibility--and it's at least the second-most likely outcome--of the Supreme Court affirming copyrightability but vacating JMOL on "fair use." Theoretically, the court could make it sound like Google, not Oracle, would have been entitled to JMOL on "fair use"--but that's something I absolutely can't imagine. What might happen, however, is that the court finds the jury wasn't entirely unreasonable. In that case, the matter would be remanded to the Federal Circuit first. Based on what the Federal Circuit found, there can be no reasonable doubt that a re-retrial on "fair use" would be ordered. The Federal Circuit would address at least some of the ways (more than Oracle could have raised even in three appeals) in which Judge Alsup's decisions prejudiced Oracle. So the re-retrial would take place on terms more favorable to Oracle than the last two "fair use" trials in this case.

This case has been going on since August 2010. It started when this blog was only a few months old. Next April (2020), this blog will turn 10, and we'll probably just have seen Google's Supreme Court opening brief by then...

Orrick, Herrington & Sutcliffe's Joshua Rosenkranz is still Oracle's appellate counsel. Each time he defeated a Google lawyer on appeal (the first one was Robert van Nest, the trial counsel), Google fielded someone else. My bets are on Mr. Rosenkranz again because he's incredibly effective--and the higher the court, the better for him.

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I'm a copyright hardliner regarding the scope of copyrightable works, a reasonably narrow exception for fair use, and remedies. I can say so without fear of contradiction from those who read my postings on copyright on this blog, particularly on Oracle v. Google, or who debated the Blizzard v. bnetd DMCA case with me back in the day. Copyright has been the basis of my livelihood ever since I started writing articles for computer magazines first, then computer books, while in high school. Meanwhile I've spent a lot of time and money developing software, and I've written tens of thousands of trivia questions (even thousands in recent years).

It says something about the utter lunacy that is the EU's proposed Directive on Copyright in the Digital Single Market ("EU Copyright Directive") when a staunchly pro-copyright blogger and creator of copyrightable works like me opposes it--obviously not every single word of it, but, at a minimum, Articles 11 ("link tax") and 13 ("upload filter"). The only other occasion on which I felt like this involved the EU as well: the CJEU's outrageous link liability decision.

The purpose of this post is to provide some unsolicited advice to the companies, industry bodies, NGOs and activist groups thinking about their strategy in a situation in which there's every reason to assume, based on the information available, that the "trilogue" (EU-style backroom negotiations between Commission, Council (= Member States), and Parliament) resulted in a very bad deal.

In 2005 and 2007, I emerged victorious from two very similar situations in the EU. I'm not sure anyone presently campaigning against the insane parts of the EU Copyright Directive can claim to have prevailed under such circumstances even once. So here's the experience from which I'm speaking, and I hope those war stories will encourage those in the trenches and serve as instructive examples. But after the war stories, I'll make some recommendations (based on this experience) that are specific to the EU Copyright Directive. So, first the old stories:

• In 2004 and 2005, I ran a campaign named NoSoftwarePatents against the proposed EU Directive on the Patentability of Computer-Implemented Inventions ("Software Patents Directive"). I was not the founder of that movement: Hartmut Pilch was. But my campaign got significant support from small and medium-sized U.S. and European companies, provided content in 17 European languages, and I advocated a "restart" motion (which the Parliament adopted and the Commission ignored) as well as, at a time when even our political allies were highly skeptical, outright rejection (without conciliation).

  For the first time in EU history (and possibly still the only time to date), the European Parliament threw out a bill at the second-reading stage, where it normally either adopts the Member States' position or goes into conciliation with the other institutions. This event was significant enough that the Economist Group handed me the Campaigner of the Year award (which had gone to a pope three years earlier and went to Governor Schwarzenegger two years later), though Bono was another nominee, and then-outgoing European Parliament President Josep Borrell mentioned it as one of the most significant events in the Parliament's history. It was widely seen as a move that strengthened the Parliament, especially since the hurdle is high (you need a majority of the members, but in that parliament you always have many absentees).

• In 2007, the European Commission was preparing a White Paper on Sports. Helping my friends at Real Madrid, the world's most famous and most popular sports team, became the only non-IT project in my career. The problem was that left-wingers and conservatives in name only formed an unholy alliance with corrupt association officials and FC Bayern Munich (which just sought to harm rivals to have better chances of winning the most important title for club teams, the Champions League). They were trying to pressure the EU to turn competition law on its head and authorize an extreme case of tying that would have forced my client, but also our informal allies (on this issue) at FC Barcelona and AC Milan, to submit to a "collective selling" (of broadcasting rights) system that would have cost my client roughly 100 million euros per year (the amount they later paid for the transfer of Cristiano Ronaldo).

  I wasn't just a "lobbyist," but authored a 41-page paper that was an informal preemptive antitrust complaint with the Commission. It was the first time I made a FRAND argument.

  Due to delays on my client's side (soccer clubs are a bit chaotic and not too strategic), we missed the opportunity to influence the European Parliament's four committee votes on a resolution that was meant to influence the Commission. The committee votes had gone against us, with only JURI (Legal Affairs) having been close to reasonable and the other three taking ideological positions. It was pure socialism, but with support from the nominally conservative European People's Party.

  While I was comfortable with the Commission officials in charge at the time being far from pursuing a radical agenda, it was critical to show to the ultimate decision-makers that there was no parliamentary majority for radical proposals. A pro-Brexit UK conservative (then an MEP, now an MP), Chris Heaton-Harris, was less concerned about substance than about subsidiarity: he didn't want the EU to impose sports rules on national associations and leagues. During our first meeting, Chris signed a proposed deleting amendment: we just took aim at the one passage of the proposed resolution that was trying to build a (fake) pro-competitive justification for tying a team's participation in the Champions League to socialist redistribution in a national league.

  One of Chris's assistants and I immediately started collecting signatures from MEPs and reached the quorum (40 or so) only minutes before the deadline. I still remember us running (well, it was sports policy) down the corridors of the Parliament to the "Tabling Office" where you present bills and amendments, and we were a few minutes late, but the officials were generous. Then came the plenary vote. What continued to be a huge issue: the Parliament's rapporteur, Ivo Belet, was radically against us, but a member of the largest group in the Parliament, the aforementioned EPP, and parties rarely go against their own rapporteur. We narrowly won the EPP-internal vote, which shocked Belet, but when our deleting amendment came to the vote, he gave a thumbs-down sign, which could still have influenced some people. Nevertheless we secured a majority consisting of those preferring subsidiarity (obviously also including my UKIP friends and ODS from the Czech Republic), politicians interested in sane competition policy, and supporters of the wildly popular teams in my camp.

Apart from those two situations, I only got involved with one other "lobbying" effort: the 2006 resolution on EPLA, a predecessor to the Unified Patent Court (UPC). The outcome there was mixed, but the objective was primarily to delay that process (and as of today, there still is no European patent judiciary). At an EPLA conference in London in the summer of 2006, a Commission director said that "generations of students [would] be taught the story of [our anti-software-patent] campaign as an example of a perfect political campaign."

There still is a chance to defeat the craziest aspects of the EU Copyright Directive, but it will take an extremely forceful and focused push. It appears that things went wrong last time the Parliament decided. Now there's only one last chance, and besides the advice you could find between the lines of my summary of how I triumphed over EU idiocies a long time ago, I have some recommendations specific to the EU copyright situation:

1. Make an institutional argument. In connection with the "restart" motion for the software patents directive (which paved the way for outright rejection as MEPs positioned it as retribution for the Commission's decision not to make a new proposal), the FFII's activists (all of them very idealistic) argued what's "right" while my position paper focused to a greater extent on what would make the Parliament "strong." It was like a forking situation in open source where we tried both, but when they showed both texts to MEPs, everyone preferred mine.

2. Make a votes-focused argument. There are only two currencies in politics: votes and money (and money is often just a means to secure votes, though sometimes it's an end in its own right, especially in the EP, where numerous MEPs are on corporate payrolls). Tell MEPs (many of whom are seeking reelection this year) that it's the smartest thing for them to vote either the whole bill or at least Article 13 down just so no voters--especially young voters and, generally, Internet users--will be angry. More than at any other point in time, the political establishment fears that EU-skeptical parties may actually form the strongest bloc in the EP after this year's election. You must leverage those fears and sell them on killing the bill so they keep their seats! This will be their last major vote before the election.

3. Focus on a simple message and demand for which there can be a broad consensus. I would ask MEPs to reject the entire bill because it's the clearest message (then the Commission will have to go back to the drawing board and a new EP, with many EU skeptics, will give them an even harder time) or, if they're hesitant to do what actually made sense in 2005 for the software patents bill, they should delete Article 13. The latter may be more achievable.

   Apparently, some modification was made to Article 11 ("link tax") that may make it more acceptable to Google. And ultimately, Article 11 directly impacts only Google. I absolutely agree with critics of Article 11, such as Berkeley professor Pamela Samuelson (here's a tax-free link to one of her writings on this issue). Article 11 is counterproductive and plain stupid. But if you now want to get the majority you failed to get last time, you need a simpler, clearer, more focused and more powerful message! Your attitude toward Article 11 should be: "This, too, shall pass." You can try to get it repealed after it's failed.

   Article 13 is the much better cause for campaigning purposes. It affects user-generated content (UGC), which is extremely important. Case in point, even my trivia app will sooner or later get UGC, and some other trivia apps already rely on it.

   With respect to Article 13, a strong case can be made for consumer harm as well as for this further weakening Europe. Most politicians don't understand economics, especially digital-era economics, well enough to figure it out themselves, but--apart from the issues raised in this Wall Street Journal op-ed that compares the eurozone's shrinking (since 2009) economy to growth in the U.S. and Asia and the ever lower performance of continental European students in math (in France and Germany, degeneration is mostly due to decades of unselective migration)--Europe's single biggest economic problem is that it doesn't have major digital platforms. There are only two significant European companies that can be considered digital platform companies: SAP (big by European standards but small compared to Silicon Valley and Seattle Sound giants) and Spotify, which loses the more money the more users it has and probably can't stay independent for too long. Successful digital platforms have enormous leverage and benefit from network effects, which makes it hard enough for Europe to catch up, but UGC is essential to digital platforms. The EU shouldn't cut off its nose in order to spite its case by complicating the creation and operation of UGC-centric platforms.

4. Combat the idea of "compromise" being a virtue here. With the software patent directive we faced the problem that many politicians initially didn't like the idea of outright rejection because they argued politics is all about the ability to find a middle ground. That is, together with the high mathematical hurdle, the reason why the EP hadn't exercised its right to reject a bill at second reading (a right the EP had since the Maastricht Treaty in the early 1990s) before we came and won. But every once in a while, no deal is better than a bad deal. Blame it on the other institutions: the Commission and the Council. Blame it on Axel Voss, the EPP MEP who was appointed as the EP's chief negotiator, though his positions are far from balanced. Alleviate MEPs' concerns, and emphasize the benefits: it's the best shot for reelection.

5. Appeal to center-right and right-of-center politicians. A large part of the reason why my NoSoftwarePatents campaign was started in parallel to the FFII's and various FOSS organizations' efforts was a positioning issue: the anti-software-patent movement was misperceived as the spearhead of a generally anti-IP movement that wanted "everything on the Internet to be free," as a still-influential German conservative MEP (thus I won't mention her name here) told me in a meeting. For the copyright debate it's very important that you emphasize not only consumers but also creators. This, again, will be easier when giving up on Article 11. With the greatest respect for an organization like EDRI, which is involved with the push against the EU Copyright Directive: they're so radical that even a staffer of the Greens/EFA group in the EP told me many years ago that the Greens didn't want to be seen as too closely associated with them.

   Many MEPs want to be seen as pro-business. You must reach out to them more effectively. Bring in app development companies and similar stakeholders who really want and depend on copyright, but oppose its most insane excesses. If you can't convince MEPs that one can be pro-copyright but against Article 13, and that it's actually good for copyright in general to oppose Article 13, then you probably won't build the majority you need. You'll only get much support from the left, and that's not enough.

6. Better online mobilization. The NoSoftwarePatents effort was very much about mobilization. MEPs told us that they had never received so many messages (emails, letters, faxes) from voters until the FFII (and, later, my campaign) mobilized "the Internet." At the time, we had to rely on mailing lists. Nowadays, with social networks, there's better infrastructure. But I really don't think it makes sense to focus on the link tax. Focus on Article 13, user-generated content, digital platforms. That one affects far more people (not just Google, and Google can probably live with Article 11 now anyway, though again, it's crazy and I hope it will be repealed after a few years--when everyone knows with the benefit of hindsight that it's counterproductive).

   If you want to mobilize citizens to contact politicians, you need a simple and compelling message. SaveTheInternet.info did a great job collecting what will soon be 5 million signatures on change.org, but is not optimized for the final push for rejection. The numbers of signatories will basically impress only those MEPs who are already sympathetic to the cause. But what's key now is to send clearly organic and authentic messages to MEPs (so they can't claim these are just "bots," as some of them have incorrectly said), and to encourage people to request meetings with MEPs in Brussels, Strasbourg, and their constituencies.

   In late 2009 and early 2010, our "helpmysql" campaign (not about legislation, but related to Oracle's acquisition of Sun Micosystems) even broke the Commission's email servers, as we were told in a meeting with then-commissioner Neelie Kroes. We put it in place within only a couple of weeks, even during the Holiday Season.

   I strongly recommend either quickly optimizing SaveYourInternet.eu and/or SaveTheInternet.info for the name of the game at this stage or starting a complementary effort that will make a greater direct impact on MEPs.

7. Attack mainstream media harder (if necessary). You have all those mainstream media companies--which President Trump often refers to as the "fake news media"--against you. We had a similar problem with our campaign against software patents, not because publishers wanted those patents but because, quite frankly, most news agency journalists were simply not smart enough to figure out that the claim "it's about software-powered devices like washing machines, not about patents on computer programs" was obviously a lie when SAP publicly stated that it wanted the proposed directive because it would protect SAP's "innovations" (which aren't washing machines). When the lie came from the Commission and national governments, the fake news media propagated it as if it were a truth and didn't believe us, just because they were brainless.

   If you give up on Article 11 now and focus on Article 13, maybe that will be a basis to get more reasonable mainstream media coverage of your efforts. I'm not sure because those traditional media companies probably also view UGC as a threat to their business model, but at least there's a chance. Time is not on your side, so you must find out quickly whether, after accepting Article 11, they'll give you a reasonably fair treatment. If not, don't shy away from bashing those publishers. They're backwards-oriented, they're rent-seeking losers, they don't innovate, they're the past and not the future. Make this a story of the winners of the digital age--and consumers are the winners when there's such an abundance of great original content--fighting against an evil scheme by the sore losers, for the sake of Europe's digital future, to the extent Europe has any digital future at all (Europe won't be able to compete with the U.S. and Asia with or without that EU Copyright Directive, but at least it shouldn't be self-destructive).

I haven't been to Brussels and Strasbourg (the two EP seats) in many years, and it's very unlikely, though depending on the circumstances not 100% inconceivable, that I'd go there in the build-up to the final "copywrong" vote to campaign for rejection/deletion. There are still some MEPs who remember the 2005 vote on software patents, and even many of those who weren't there yet in 2005 have meanwhile heard about it. The showdown in Strasbourg or Brussels could become a huge event, like the legendary July 2005 software patents vote, but it takes the right message and turnaround strategy to get a better outcome under even more difficult circumstances (where the strongest argument of the "copywrong" side will be that the result of a "trilogue" is sacrosanct and must be rubberstamped).

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As I wrote about six months ago when Google was preparing a petition for en banc rehearing of the Federal Circuit's Oracle v. Google Android-Java copyright decision, I'm not going to reiterate my longstanding positions (which haven't changed) on that case. However, Google filed an application for extension of time within which to file a petition for a writ of certiorari (request for Supreme Court review) about a week ago (PDF on Supreme Court website), so I wanted to update my readers in purely procedural terms.

In late August, the Federal Circuit denied Google's petition for a full-court review of a decision that (as I predicted) held the incorporation of many thousands of lines of Java API declaring code into Android did not constitute fair use.

Without the requested extension to January 25, 2019 (which was granted four days ago), Google would have had to file its cert petition in late November.

This time around, Google is trying its luck with a new Supreme Court counsel: Williams & Connolly's Kannon Shanmugam. Presumably, Oracle will continue to work with Orrick's Joshua Rosenkranz, who scored two Federal Circuit wins over Google on Oracle's behalf and fended off Google's original petition for writ of certiorari (which was about copyrightability). What he and his team have achieved in this case, and in some others, is nothing short of amazing.

As Google's application for an extension of time noted, its recent en banc petition related to both copyrightability and "fair use." I venture to guess Google's second cert petition will likewise raise both issues. One of Oracle's key arguments against the first cert petition (though we'll never know which argument bore most weight with the Supreme Court a few years ago) was prematurity: there had not been a final judgment on infringement. Chances are Google will try again.

This is now the longest-running smartphone IP dispute. It started more than eight years ago--in mid-August 2010--with Oracle's original complaint in the Northern District of California. Even Apple v. Samsung ended after "only" about seven years.

From a "justice delayed is justice denied" point of view, I don't think anyone can blame Oracle for presumably fighting very hard against Google's cert petition. However, as an app developer and IP blogger I would like the Supreme Court to grant cert--and to affirm both Federal Circuit opinions. That would provide definitive legal certainty, nationwide, on questions that many of us care about (no matter on which side we come down).

Fortunately, there is no vacancy on the Supreme Court. As some of you may have noted on Twitter and/or LinkedIn, I supported the #ConfirmKavanaugh campaign at all stages.

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While I'm not going to reiterate my positions on copyrightability and "fair use" in connection with Oracle v. Google (I fully stand by what I've written before and which the Federal Circuit has vindicated, but don't see a point in repeating what I've been saying for so many years), it does sometimes surprise me that there is so little interest in the proceedings. The latest example is that I haven't seen any media coverage of the fact that Google is preparing a petition for a rehearing en banc (a full-court review) of Oracle's recent appellate victory (this post continues below the image):

The regular deadline would have been in late April. In early April, Google asked for more time: until May 29, 2018. Oracle didn't oppose, and the Federal Circuit granted the petition.

An expert I talked to last month doubted that the Federal Circuit would take much interest in a matter of Ninth Circuit law. The Federal Circuit doesn't usually hear copyright cases, and here, even the Federal Circuit would only be bound to what it said in its Oracle v. Google "fair use" decision the next time a copyright matter, because of some patent claims being involved, is appealed from a district court within the Ninth Circuit. The circuit judges are more interested in the evolution of patent law (and other fields that must be--and aren't just coincidentally--appealed to the Federal Circuit).

Last time around, when the key legal question was copyrightability, Google even skipped this step and went straight to the Supreme Court (in vain). The fact that it's trying an en banc petition this time doesn't necessarily mean it's much more hopeful about its chances. Google may simply consider it safer to exhaust its options at this stage before trying another petition for writ of certiorari (request for Supreme Court review). It's like telling the Supreme Court: "We really tried everything to avoid having to file a second cert petition in the same case, but unfortunately we have to."

While I believe the Federal Circuit got both copyrightability and "fair use" perfectly right (for the reasons I stated in years past, over and over), I'd love the Supreme Court to accept to look at the matter--and, ultimately, to affirm. As an app developer I believe that would be a positive thing for the industry at large, with a few exceptions that merely prove the rule. An en banc review by the Federal Circuit--no matter the outcome--wouldn't be useful at all.

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I haven't blogged about this case in a long time and won't spend much time now, but I wish to be of service to my readers here since there doesn't seem to be any reporting in the IT press about how yesterday's Oracle v. Google Federal Circuit hearing went. To the extent anyone reported at all, it appears those reports were either written before the hearing or, if after, they're behind paywalls (or at least Google News doesn't find them).

I won't reiterate my unchanged position on the case in general and "fair use" in particular now. All that matters is what's going to happen now, and it would be a major surprise if last year's ruling by Judge Alsup in the Northern District of California, based on a jury verdict that came into being under circumstances I harshly criticized at the time, was affirmed.

The Federal Circuit yesterday published the official recording (MP3) of the hearing. The panel, which previously held the Java API declaring code copyrightable (it's no secret that this has been my view for a long time), does not appear to agree with Judge Alsup's decision to withhold evidence on non-mobile Android devices (desktop PCs etc.) from the jury. The only question at this stage appears to be whether the appeals court, after finding that this decision and possibly some others were wrong and prejudiced Oracle, will resolve the "fair use" defense by throwing it out directly as a matter of law or, at a minimum, remand for a retrial. I think the probability of a JMOL is greater than 50%.

When listening to the recording, you'll see that the appellate panel firstly was very interested in Oracle's JMOL argument and even allowed five minutes above and beyond the originally allotted time. Then Google's appellate attorney got a very rough ride. The most impressive part of the recording is the last five minutes: an amazingly powerful rebuttal statement by Orrick's Joshua Rosenkranz. This is as good as it gets.

While no one said so at the hearing, I believe Judge Alsup completely destroyed his credibility with the Federal Circuit by excluding absolutely essential and outcome-determinative evidence. He's in for a second reversal in the same case--which is unusual, but he had it coming.

When the appellate opinion is handed down, many people will be surprised that the case is still alive. But you won't be because I felt I had to tell you since, to the best of my knowledge, no other free-to-read website has done this job, at least not yet.

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In early July, Qualcomm brought an ITC complaint against Apple over six non-standard-essential patents (NEPs) related to efficient battery usage, seeking an import ban against iPhones with Intel (or other third-party chips) but not against devices that might include Qualcomm's own chips.

A couple of weeks ago, the ITC instituted the investigation. As I wrote last month, it would have been unusual for the ITC not to investigate the complaint, despite the partly valid points raised in various public-interest statements.

But something unusual has happened now. On Friday, Qualcomm filed a motion (unopposed by Apple) for partial termination of the investigation by withdrawal of U.S. Patent No. 8,487,658 on a "compact and robust layout shifter design."

What's unusual here is not Qualcomm's decision to drop a patent. I'm sure they'll drop more as this investigation unfolds because that's what the ITC expects complainants to do so it can keep its relatively ambitious timelines (Qualcomm's motion makes reference to the normal course of business at the ITC, though the motion tends to portray a totally ordinary ITC timeline as something special, which it is not in my observation). What is strange and even pretty much unprecedented is the timing: two weeks into a just-launched investigation. In all other cases I've watched, with an exception I'll discuss next, parties withdrew patents after significant procedural progress. At a minimum, parties would want to review the respondent's non-infringement and/or invalidity arguments. Here, Qualcomm withdrew the patent without anything happening other than Qualcomm having changed its mind.

Approximately five years ago, then-Google-owned Motorola Mobility withdrew its entire second ITC complaint against Apple at the same procedural stage. But a withdrawal of an entire complaint is not the same thing as streamlining an investigation that is continuing. My guess is now, with the benefit of 2020 hindsight, that Apple would otherwise have filed a second complaint of its own against Moto, so maybe they agreed to at least cease further aggression. It still took a while (until May 2014) before Apple and Google withdrew all claims pending against each other, but there weren't any further infringement accusations between them (just fights over remedies and invalidity, and of course, appeals) between that withdrawal of Moto's second ITC complaint against Apple and the spring 2014 settlement. At a minimum, it was a gesture of deescalation--and "deescalation" doesn't appear to be in Qualcomm's vocabulary in connection with the Apple dispute.

Qualcomm produced a beautiful infographic to promote its ITC complaint. Unfortunately, it's outdated now, but I've just decided to exercise my fair-use rights to provide an update. Maybe Qualcomm itself will produce an up-to-date, clean version of that infographic (click on the image to enlarge):

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