Google LLC v. Oracle America, Inc. - Brief of 72 Intellectual Property Scholars as Amici Curiae in Support of Petitioner

49 Pages Posted: 6 Feb 2020

See all articles by Pamela Samuelson

Pamela Samuelson

University of California, Berkeley - School of Law

Catherine Crump

UC Berkeley, School of Law

Date Written: January 13, 2020

Abstract

Until the Court of Appeals for the Federal Circuit’s 2014 Oracle decision, software developers felt free to compete and innovate in the development of compatible software because major decisions from the Courts of Appeals for the Second and Ninth Circuits had established that copyright law does not protect software interfaces that enable the development of compatible programs. These cases and their progeny recognized that unlike conventional literary works, computer programs are highly utilitarian. They embody many copyright-unprotectable elements, such as compatibility-enabling interfaces, that must be filtered out before making infringement determinations. Programs consequently receive a relatively “thin” scope of copyright protection to ensure that subsequent programmers can freely reuse unprotectable elements in developing their own programs. As a matter of copyright law, the pro-compatibility decisions are sound as they facilitate fair competition by those who write new code while preserving copyright’s role in protecting software from piracy and other wrongful appropriations.

The Federal Circuit’s 2014 Oracle decision was a radical departure from these precedents and directly contradicts their rulings. It adopted an unduly narrow view of this Court’s ruling in Baker v. Selden, 101 U.S. 99 (1880), which excluded methods, systems, and their constituent elements from copyright’s scope. It ignored Congress’ codification of the method/system exclusions. It misconstrued the case law properly interpreting those exclusions in relation to program interfaces. The Federal Circuit also misapplied the merger doctrine and case law persuasively holding that interfaces that enable compatibility are unprotectable by copyright law. Because of the Federal Circuit’s numerous errors in analyzing Google’s copyrightability defense, this Court should overturn its ruling. Programmers should have to write their own implementation code, as Google did, but interfaces that enable compatibility should be free from copyright restrictions.

Keywords: copyright, computer software, section 102(b), merger, scope of protection, compatibility, words and short phrases

Suggested Citation

Samuelson, Pamela and Crump, Catherine, Google LLC v. Oracle America, Inc. - Brief of 72 Intellectual Property Scholars as Amici Curiae in Support of Petitioner (January 13, 2020). Available at SSRN: https://ssrn.com/abstract=3518887 or http://dx.doi.org/10.2139/ssrn.3518887

Pamela Samuelson (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall
341 North Addition
Berkeley, CA 94720-7200
United States
(510) 642-6775 (Phone)
(510) 643-2673 (Fax)

Catherine Crump

UC Berkeley, School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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