On February 11, 2013 Oracle filed its opening brief in the appeal of the district court's ruling on the Google Android/Java copyright infringement case. Among other things, its brief clears up certain misconceptions concerning the role software patents and copyright play in the protection of software-related intellectual property. Yesterday (Tuesday, February 19, 2013) was the deadline for amicus curiae briefs in support of Oracle. This morning I found a really impressive list of filings on the Federal Circuit docket for this appeal. The amicus briefs themselves will likely enter the public electronic record today and/or tomorrow, and I'm going to review and discuss them all. In the meantime, let's look at the names of these supporters of copyright protection of original works. The persuasive impact of amicus curiae briefs depends not only on what is said but also by whom it is said.
Technology industry leaders: Sun founder, Microsoft, EMC, NetApp, Business Software Alliance
Sun founder Scott McNealy and former Sun EVP Brian Sutphin tendered a brief. Google is likely going to point to former Sun CEO Jonathan Schwartz' testimony, and maybe Mr. Schwartz, who has an axe to grind with Oracle because of Larry Ellison's dismissive remark about his managerial skills, is going to submit an amicus brief in support of Google. The difference between McNealy and Schwartz is that the former founded this company and made it an industry leader, while the latter's track record is not held in particularly high regard.
There are two kinds of company submissions. On the one hand, the Business Software Alliance (BSA) made a submission. On the other hand, three companies -- Microsoft (represented by a former United States Solicitor General), EMC and NetApp -- filed a joint submission directly.
The BSA's members include (in alphabetical order) Adobe, Apple, Autodesk, Bentley Systems, CA technologies, CNC Software - Mastercam, IBM, Intel, Intuit, McAfee, Microsoft, Minitab, Oracle, Progress Software, PTC, Quest Software, Rosetta Stone, Siemens PLM Software, Symantec, TechSmith and The MathWorks. They collectively represent a high percentage of U.S. investment in software development, which dwarfs whatever Google and its Android hardware partners spend on software-related R&D.
Creatives: Picture Archive Council of America and Graphic Artists Guild
I'm not surprised that creatives are concerned about the wider implications of this case. The Picture Archive Council of America and the Graphic Artists Guild filed a joint brief. Here's some background on the two organizations:
PACA, the Picture Archive Council of America, describes itself on its website as "the trade organization in North America that represents the vital interests of stock archives of every size, from individual photographers to large corporations, who license images for commercial reproduction. Founded in 1951, its membership includes over 100 companies in North America and over 50 international members."
The Graphic Artists Guild's members are "graphic designers, Web designers, digital artists, illustrators, cartoonists, animators, art directors, surface designers, and various combinations of these disciplines" (freelancers as well as staff artists). Wikipedia has an interesting article on the Graphic Artists Guild, its activities and its history.
Former U.S. copyright czar Ralph Oman
The headline of one amicus brief stands out because it not only states support for plaintiff-appellant (Oracle) but also "urg[es] reversal". It was submitted on behalf of Ralph Oman, who served as Register of Copyrights (head of the U.S. Copyright Office) from 1985 to 1994. He's a Washington D.C. thought leader on intellectual property in general and copyright in particular, and has played a key role on the international stage (it's worth noting he stated at leading French university the Sorbonne). According to his profile on the website of George Washington University (where he is a professorial lecturer in intellectual property and patent law), Mr. Oman "helped move the United States into the Berne Convention for the Protection of Literary and Artistic Works, the oldest and most prestigious international copyright treaty, a goal sought by U.S. Registers for 100 years". Wikipedia also mentions that he is "one of three founding directors of the U.S. Committee for the World Intellectual Property Organization".
If the Federal Circuit affirmed Judge Alsup's ruling with respect to copyrightability, or if Google ultimately prevailed on its "fair use" defense, intellectual property and especially copyright would be weakened. It appears that Mr. Oman is profoundly worried.
Academics: Purdue computer security expert Gene Spafford, UC Davis engineering professor Zhi Ding, Utah computer networking and IP professor Lee Hollaar
The three professors who submitted a joint amicus brief all have an engineering background, and one of them is additionally an IP expert.
Professor Eugene ("Gene") Spafford teaches computer science at Purdue University and, according to Wikipedia, "a leading computer security expert". He served on the President's Information Technology Advisory Committee from 2003 to 2005. A key free and open source software security tool named Tripwire was coded by one of his students but supervised by Professor Spafford, who (according to Wikipedia) "was later the chief external technical advisor to the Tripwire company during their first few years". He was involved in a similar supervisory role with COPS (Computer Oracle and Password System), another FOSS project.
Professor Zhi Ding heads BRAT-Lab (Broadband Radio Access Technologies Laboratory) at the University of California (UC) Davis, where he is currently Professor of Electrical and Computer Engineering. He received his first degree in China but also studied in Canada and the United States. According to this profile, "[h]is research contributions cover a broad range of signal processing and communication problems including wireless transceiver optimization, blind channel estimation and equalization, multi-input-multi-output communications, multiuser detection, source separation, adaptive signal processing, parameter estimation, radar target discrimination, multimedia wireless communications, and cross-layer wireless communications".
Professor Lee Hollaar currently teaches computer networking and intellectual property and computer law at the School of Computing (formerly the Department of Computer Science) at the University of Utah in Salt Lake City. So he's a technologist as well as an IP expert. His amicus briefs have previously had quite some impact on IP law in the United States. According to his biography, "he played major roles in adding two words to the vocabulary of intellectual property law:
'Inducement' was recognized by the Supreme Court in its unanimous Grokster opinion. The concept of liability for inducement of copyright infringement was revitalized in his paper Sony Revisited: A new look at contributory copyright infringement, and refined in his amicus brief in the case. The paper also led to the introduction of the Induce Act in the 108th Congress.
'Foreseeability' as a limit on doctrine of equivalents in patent law is the heart of the Supreme Court's Festo opinion. It was proposed in the amicus brief whose filing he supervised as chair of IEEE-USA's intellectual property committee."
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