 Today that meant and because we only have one day for our dev room that meant that we only had a couple of Slots available for regular talks. So it was very difficult to have a regular talk This time in our dev room One of the talks that we did accept is the upcoming one Which is on a topic that I think that many many of us are very concerned about and is very important for our community I'm really excited to Introduce Van Lindberg who's going to give us an update on this very important topic. Thank you. I Am I'm glad to be here today. Can you all hear me? perfect, so I want to So Gotcha So what we're going to be talking about today is I'm going to give you as quickly as possible an Overview of who is arguing what or what we think that they're going to be arguing Sort of the overview of what's what's going on in the case. Who's arguing what? The various positions that are being advanced and then I'd like to just tie up with a few thoughts about how this might affect Affect free and open source software. So first thing is I'm going to assume that This is where we are Right now all the argument all the Google has filed its brief Google has filed this brief all the All the Amika's briefs they're called friend of the court briefs either in favor of or In favor of Google or in feet in support of neither party have been filed coming up very soon We're going to have oracles brief and a week later the briefs in favoring Oracle Things have been set for arguments on May on March 4th 24th, and then probably by June we'll have a decision No matter what happens. This is probably going to affect the way all of our free software Free and open-source software licenses are interpreted. So a couple key concepts I'm assuming that most people are going to be familiar with the the ideas of fair use of Copyright ability I've highlighted up here sort of the three key two key concepts and one key case that is really going to Is really going to form the basis for what a lot of people are talking about This first is this idea of copyright ability Copyright covers creative expression However the same copyright statute says that it doesn't cover Ideas systems methods of operation functional things like that so the big question is are the declarations and the Structure sequence and organization the SSO of those is that functional is that is that creative? How does that tie into the copyright statute? The second idea is fair fair use Sometimes even things that are would otherwise be Infringing are allowed because it advances a larger societal purpose in the case of Oracle v. Google. We're talking a lot about interoperability. We're talking about competition, but we're also talking about the in the broader purpose of incenting people to To try and create new works, which is the purpose of copyright overall Fair use is a balancing act between the rights of other people to use things In ways that you may not necessarily agree with if it serves a more a broader more important societal purpose Than the base purpose of copyright, which is to encourage more works Finally, I'm going to be talking about a lot about a case called Baker v. Selden This is a case from the late 1800s where a guy had a book where he described how a bunch of things work in He said forms in it to describe his accounting said his accounting system another guy published a different book He used those same forms got sued for copyright infringement went all the way up to the Supreme Court Supreme Court said you have a Copyright in the book, but your copyright does not extend to those forms if you wanted if you wanted to protect those forms You needed to get a patent This was sort of the first time the Supreme Court embraced this idea expression distinction and it went on to It went on to form the basis a lot of a lot of copyright jurisprudence today so I want to talk for a moment about the framing that both Google and Oracle are With which they're they're approaching this now Google some basic facts Google took the entirety the work when we're talking about it What's the work? It is the Java 2 is Java 2 se it is They took the entirety of this work and particularly they took the Declarations that formed the that that formed the API they took 37 of them that they said hey These are going to be relevant for the mobile phone context They took the declarations from that and copied those and then either wrote or used Apache harmony to to Put in the implementing code those declarations and then the Organization of them into the class structure is what we're talking about Google's framing is that these declarations are entirely functional. This is really a system of operation we really shouldn't be talking about copyright at all and Their main argument that they're really focusing on is this idea of merger after After Oracle had created these Java packages there was only one way For people to access the functionality and that was by using the specific name and the specific Organization that that Oracle had prescribed therefore this this is copyright concept called merger says there's really only one way to Do it so you can't tie that thing up by copyright They've also said it doesn't matter that we copied 11,000 of these If you can copy one fact or one piece of functionality you can copy a thousand it doesn't matter Now looking so that is broadly Google's framing In this context Google is arguing a couple things on copyright The first thing is that they are really going all in on the merger doctrine and they said course You can are you can decide that this whole thing is a system of operation But in their in their case they said but in their brief they say but if you would like to decide this on a Narrower basis and that is like catnip to the Supreme Court. They always like narrower bases for their decisions You can say this was this is really controlled by the merger doctrine There was really only one way to do this and so therefore the specific parts of the work that we copied Were excluded from copyright and it was okay The other thing is that they're saying that this really court is a great policy This is something that is enabling people to create new works This is something that is broadly accepted in the industry and it is furthering the function of copyright Google doesn't stop there because they've actually the the Supreme Court is actually going on two questions They said we are going to review both the copyright ability and whether this was fair use and so Google's position on fair use is that You know what the jury this was really was a question for the jury Which is actually a really good point and the jury said this is fair use The jury had a good reason. They heard hundreds of hours of testimony. They could They could reasonably decide that this was fair use and so there was really no reason to overturn what the jury said Case closed. So even if you disagree with us on copyright ability, the jury could have decided this completely reasonably on the other hand Oracle's framing is Is a little bit different oracles saying you know what this is like a literary work in fact software itself is protected as a literary work and So when we think about types of works We talked about whether there's a thin copyright or whether there's a broad or a strong copyright and the broadest strongest copyright are for the things that show the most creativity and court this was hard This was creative and so we should have as broad a copyright as possible and all those things that Google copied That was essentially like copying all of the head in chapter had chapter titles and headings and subheadings of a very long and complex book and you can't really just copy part of that or copy the heart of something and And say well, we didn't copy all of it The fact is there was creativity in the organization of this and it was it was Expressive in the way that we put it together um With regard to with regard to Fair use they're also talking a lot about the This idea of the creativity and the work that they put into it it is a One of the core use core elements of fair use is that it shouldn't override and shouldn't displace the commercial prospects of the original author It shouldn't displace the original work And so they're saying what we did is we created essentially a very popular literary work We had millions and millions of fans and they decided that this was something that they wanted to copy Google's use was overwhelming commercial Overwhelmingly commercial and it was used for the exact same purpose It doesn't matter that you change the context if you read a book If you read a book here, and you read a book on stage It's still the same book they and it was still the exact same content. So that is oracles overall framing I also want to Know this this this was their briefing opposition One note about all these things about Oracle as I noted they haven't actually filed their brief with the Supreme Court yet So what I would did is I went back and I pulled all the briefs From Oracle at all the different stages of the case and I also pulled all of the people who filed in support of Oracle at earlier Stages in the case. So all the things that I'm said that I'm quoting are things that were said either by Oracle or in support of Oracle at an earlier stage That I think are likely to come up when we see their their full arguments in a week or two But this idea the bolded portion Google's copying was equivalent of taking the most Recognizable parts of a popular short story turning them into a blockbuster movie without the offer's permission something the Supreme Court deemed a classic unfair use so Let's think about this for a moment. What do we know as I mentioned the Supreme Court granted certiorari on both questions Now for those who are not legal geeks, and I realize that may be only half of you in this audience, but So When someone goes up to the Supreme Court, they have what they call questions presented What are the things that we want you to decide Supreme Court and they usually put up one or two and the Supreme Court? Doesn't have to take the case at all or if it takes the case it can specify We're only going to talk about question one or we're only going to talk about question two Now procedurally Oracle v. Google is very interesting because it came up to the Supreme Court once before Supreme Court thought about taking it and they said on copyright ability and they said now We'll send we're not going to take it now it went down they had the trial unfair use it came up again and The Supreme Court said okay, we'll look at it this time They decided to accept on both the original question of copyright ability as well as the second question on fair use so if the court takes Grant certiorari and particularly on a particular question that means at least four of the nine justices think that there is an important Principle that needs to be addressed So you've got at least four people who say this both the copyright ability and the fair use questions are worthy of being looked at this I also want to Look at sort of their framing Google's argument on merger it maps really well to the copyright statute You've got a lot of people on the Supreme Court a lot of the justices who very much like to be grounded in the text of the statute and 17 USC 102 b talks about hey in no way wait as copyright extend to any idea system System function method of operation etc. It's easy to say see how software can fit into that The issue though is that they're putting all their eggs in this merger basket and Oracle's argument on merger is very subtle But I think it's powerful or goes arguing on a merger is that For merger to apply it has to apply what's called ex ante beforehand there only has to be a couple ways to express this in the first place They've said you know what actually Oracle had thousands of ways to express this and really there was there were constraints only because Google wanted to tap into Oracle's market. That's a powerful mark That's a powerful argument that in some cases various a lot of these things haven't been litigated But various people have said that is one of the times when merger doesn't necessarily apply the also However various amici have made arguments that reach the same conclusion via other other routes So it's not necessarily a hundred percent on just the Oracle v. Google main arguments The other thing that I want to point out is that this idea in the second case There was a jury verdict for fair use that was overturned and ruled as no possible jury Could have ever come to that conclusion by the federal circuit that thing is Incredibly rare and Arguably fairly improper. I think that that is the wild card That's really going to that is going to be the hardest thing to overcome Even if copyright ability and fair use go for Oracle So I just went through this So let's look let's go forward through the Let's let's go forward through the various amici 26 amici I believe filed either in support of Google or in support of neither party This particular organization was done by the disco project. I thought it was very helpful In terms of just showing the range of different people who were interested and weighed in on this particular issue I'm gonna I've grouped them a little bit differently though And I'm going to go through and and group them by the types of arguments that they made So so first were arguments regarding Copyright ability first one. I'd like to really highlight is the the amicus brief by Pamela Pamela Samuelson and 72 IP scholars. This was just a tour de force of Completely deconstructing the the the law of the law of copyright how it applied from Baker v. Selden forward This is something that that professor Samuelson has focused on her entire press professional life And this is an incredibly powerful well researched well argued Focus on the copyright ability question Not surprisingly she because she's our filing in favor of Google. She says Google should win this one Also notable on arguments regarding copyright ability is the ones by Manel Nimmer and Agnache, I don't know how to pronounce that a Lot of you people may not know there is a famous treat is called the Nimmer on copyright It gets quoted by courts all the time this Nimmer It was actually his dad who started but he's been writing that treatise since 1985 So when people quote Nimmer on copyright that is that Nimmer and he also said, you know what this is This is not correct under a copy under the copyright statute Yeah, it's like turn it if the current again weighs in on C Um, it's it's that heavy a weight IBM and red hat Stepped up and they argued They argued pretty Pretty straightforwardly that these things should be excluded from copyright They were what's probably the only one that had an exclude a quite a bit of discussion about Paris v. Hexmer That's a really fun case. It was about The copyright on a map and whether the whether you could copyright the symbols that you use to Indicate different types of development on a map and the court said no you can they said this is the same thing a Lot of people in this room that a lot of were associated with some of the briefs here These were essentially the open source organization related briefs the PSF tidelifts open UK and protocol lab brief said you know what we already have this concept for a mixed work Of a mixed work in copyright. It is a useful article You've already thought about how to separate useful articles from copyright ability stuff. Just apply that test with the the long list of people in on the Mozilla brief Said you know what this is This was both half of a policy brief and half of a copyright ability brief They said software developers rely heavily heavily on the ability to re-implement This is one of the key tools in our key tools in the toolbox. It has been accepted as accepted as okay, and so Following Baker B. Selden this should be allowed One of the most comprising briefs was actually by the AI PLA that stands for the American intellectual property law association They are traditionally very very pro IP pro strong IP They technically filed in favor of neither party, but their arguments were basically that Google should Google should win In fact, I had to check that it was actually in favor of neither party because it came out so strongly in terms of saying That really these things should be excluded from copyright That is going to be a name that is well known by the justices and The fact that they weighed in in such a definitive way is going to be influential the EFF also Wait in saying that they excluded they excluded a bunch of one or two B Now turning over to fair use if you want to look at sort of the definitive fair use Fair fair use amicus brief. It is professor Rebecca Tushnitz and 17 law professors Brief They went through and they completely sort of eviscerated the federal circuits logic in terms of the Rebalancing of the fair use factors. There are four fair use factors. They said, you know what they got them wrong on all of them Also particularly notable here is the brief by Microsoft a brief by Microsoft was very well done But the important thing here for them from the justices perspective is that the justices know Microsoft They know like read like IBM as well But especially Microsoft who filed on the opposite side of this at an earlier point in the case they know that Microsoft relies on a well functioning copyright system for software and so having Microsoft weigh in and say, yeah, this is a little bit messed up really Really is going to be very influential Notably they filed on the fair use question where their earlier are their earlier amicus brief at the federal circuit was pro copyright ability of these interfaces so They are not necessarily backing down from that position But they are saying that fair use should make these things these APIs available Moving on there are procedural arguments. I mentioned that this was the overturning of a of a jury argument These people said, you know what this is a this was procedurally just Terribly messed up. You should you should overturn and reverse on this ground alone And then you come to a lot of different policy arguments I've grouped these in terms of various Various themes a lot of people said this has been essentially the law for Decades you're going to be overturning a lot of settled expectations This group of people were saying interoperability is a core Benefit that we were that fair use is designed to to enhance if you Both both in terms of copyright ability and in terms of fair use if we don't allow this sort of Competitive reuse to occur. We're going to lose the benefits of interoperability Wow, I'm almost out of time A Couple more Anti-competitive conduct from the American anti-trust suit and the reattail litigation Center and Against the expansion of copyright now I want to Couple things the American Library Association and some others said don't mess up fair use I'd like to Look for a moment while I've got just just a minute Who were the people who might support oracle and while this is just my guess This is not actually the list of amici. These are people who Seem to have expressed interest or have filed at various earlier points So this is my guess of people who might support oracle and what are some of these people? What have they said? You'll find that a lot of this eight writing apis is a powerful Powerfully creative endeavor you should not say just because this is software. This should get less copyright concern It is it's bad policy bad policy the BSA is probably going to weigh in and the IP scholar saying this is a this is a property right and You should make sure that you reinforce the copyright ability of software because that is the basis of the entire software industry I'd like to point out that to a certain extent. We actually agree with that from a false standpoint We rely on the enforceability of copyright for all of our favorite licenses There's a lot of people who look like they're probably going to weigh in on fair use saying what Google did actually directly displaced Oracles product in the market and because it displaced oracles product in the market We are really it is something that that is something that fair use has never allowed So I've got about one minute. I want to give a couple closing closing thoughts This is one of those things where why does this matter it matters because The interaction of software with interfaces is something that we deal with all the time. It's an uneasy place for copyright very concretely Think about the inclusion of an API or the use of an API similar to the use of like Including a header file when you're dynamically linking if oracles position is correct then there's a good argument that Dynamically linking is no different than static linking from the gpl2 per gpl2 gpl3 perspective Whereas if if Google's position the strong Google position is correct that moves for example the lgpl and the gpl Much closer together in terms of their actual effect This is something that affects lots and lots of different Different products it also affects all these services all these web API's now It could be that a particular API is not creative enough to for someone to say yes, this is This is copyrightable, but the default is going to be we're going to need to start thinking about Every API and every network call as a possible source of license control Excellent questions