19 November 2019

The Only Winners Will Be the Lawyers (Episode 47,519)

The Supreme Court recently agreed to hear one of the most "Why can't they both lose?" intellectual property disputes of recent years. And it's one that exposes the true, utterly-unenlightened-self-interest, financial and economic motivations for intellectual property litigation — misuse of intellectual property rights as a high-priced exception to the skepticism built into antitrust and unfair competition law1 toward monopolies. In short, they want to monopolize "the money," without any consideration of the consequences for anyone else — or even the very underlying purpose of the non-res that leads to the money.

Google, LLC v. Oracle America, Inc., No. [20]18–956 (cert. granted 15 Nov 2019), appears on its face to present the following questions for the Court — in its dubious wisdom and competence2 — to attempt to answer.

1. Whether copyright protection extends to a software interface.

2. Whether, as the jury found, [Google]'s use of a software interface in the context of creating a new computer program constitutes fair use.3

But these fundamentally assume aspects of the inquiry that are, in fact, central to not only the Federal Circuit's (and trial court's) analysis below, but to the very nature of copyright. Worse, that very nature of copyright is both explicated in a series of decisions beginning over a century ago and continuing to the present as to US conceptions, and increasing reliance on the same concept in international copyright law: The inability of "copyright" to extend from expression to idea.4 Instead, the inquiry should look something like this — stated as neutrally as possible, without the self-serving bits embedded in the questions as quoted above (or in the preamble that I'm not bothering with here, which is if anything worse).

A. Can a series of specifications for accessing useful functions in a general-purpose software system (that does not itself reproduce original expression) constitute original expression under Feist? This is the entry-point question (if the answer is no, the two others don't matter). By analogy to a clear work of art, this question asks whether quoting a couple of lines of dialog from Screenplay 1 in the body of Screenplay 2 — when Screenplay 1's quoted dialog consists of direct, even purely binary or numeric, responses to factual questions concerning a historical event, such as quotations from the Nuremberg transcripts embedded in a film — constitutes copying of original expression. If it does, we go to the next inquiry.

B. Does the casting of any original expression found in A as a specification constitute a reduction to fact distinct from any original expression, especially when any such original expression concerns a useful function? Here's where some knowledge of the history of science, and the process of scientific progress, would be useful — even in a "pure copyright" context. One clear example is the Szilard engine.5

C. For any specification to which the answer to B above is "no," what is the standard (and burden of proof) for determining that such a specification is nonetheless fair use? Here, I'm afraid, we're getting into the inept writing of the Copyright Act itself. Section 107 is misworded; no matter its rhetoric that fair uses "are not an infringement," fair use functions like — and the courts recognize that its function is — an affirmative defense, and treat it accordingly instead of as a "positive right" of the reuser. This makes perfect sense given the evidence that would be necessary for establishing each of the five established fair-use factors.6

And even after all of this, we haven't yet considered the underlying problem. Copyright is, fundamentally, a government-sponsored monopoly. It is a very narrow and limited monopoly on its face — but as this litigation demonstrates, even that narrowness can have immense (if unintended and indeed unimaginable to the Founders… or even drafters of the 1976 Act) consequences. The underlying problem does not lend itself well to two additional questions for the Supreme Court to answer in this case, because this case does not present a good vehicle for asking or answering them — either conceptually or on its particular record. Nonetheless, both questions lead to my impulse to want both sides in this particular case to lose.

P1. Does the initial provision of software interface instructions constitute an implied license for creating derivative works that comply with those interface instructions? This is both a larger and smaller question than "fair use," because it is intensely related to the nature of the source work. In this instance, Oracle is demanding quasi-trade-secret protection for something that it has disclosed to the public via the copyright registration, if nothing else.7 More to the point, software interface specifications are in the nature of a USAF Technical Order — the instruction manual for the methodology and parts used in performing aircraft repairs. The provider of that instruction manual has implicitly given at least some permission for users to copy/implement those procedures in order to comply with the bloody manual, which in turn relates to compliance with safety and interoperability standards established well outside the scope of either the manual or the aircraft in question. And if it is not a formal implied license (if there is such a thing), then there are surely implications of "misuse of copyright" in here that aren't just big-picture policy questions — they are intimately and inherently intertwined with the nature of the two parties now before the Court.

P2. Is "pursuit of copyright infringers" per se outside the scope of antitrust law and doctrine? And now we really are in big-picture land, but it's a picture that also implicates standing — standing to sue, and standing to be sued. So we can't really ignore it; at best we can evade it as not being squarely presented here.8 At a policy level, though, this presents something that is implicit in the source cited in note 5 but implicitly ignored: That we are at an enforced, actual equilibrium state. This is because the impulse to use any means to suppress competition implicit in Oracle's position — purportedly to maximize its own shareholder value — depends upon both the size of the overall "pie" and the relative market shares remaining not just constant, but thermodynamically closed. Leaving aside that if there's anything that is paradigmatically not a closed system it is "means of information exchange" (in this instance, a cell-phone's operating system), this also implicates the original-position problem with intellectual property and one of the differences between "copyright" and "patent": The issues related to the First Amendment inherent in the former and denigrated in the latter. Functionally, Oracle wants its copyrights to be enforceable like patents, and in particular to embrace patent law's general rejection of both "fair use" and "independent conception," without ever confronting the nonpatentability of the interface specifications. And it wants to do so because it wants to believe that it could have stood in Google's shoes and created — and fully exploited — the Android telephone operating system itself, without expenditure on infrastructure similar to what Google had already done.

They should both lose. Or the public at large, copyright law in general, and technology in particular will. And, of course, independent creators of original works of expression will lose no matter what, because their interests will be nowhere represented in any of the briefs — but will be profoundly affected by any decision (if only because that rationale will be misconstrued and misquoted to screw them).

  1. That skepticism is also inseparable from the US Constitution and from all other Enlightenment-era-origin governance systems. This is, itself, a 112-footnote argument I wrote in 2005 and haven't updated since — and utterly unfashionable, because it tries to use nonlegislative materials to cast light on legislative intent, and in turn (at a further remove) on the probable shared understandings of the small proportion of the population that actually engaged in writing governance documents. I was not confident that the research was "good enough" then, and given the excesses and blind spots of corpus linguistics (pdf) analysis as it has evolved in the last fifteen years, I'm even less confident. The problem with cl analysis ab initio is that it concerns itself with what has been preserved, and more to the point what was recorded in writing and preserved… at a time of far less than universal literacy. And that's before getting into the class-, race-, religious-, and nativist-related problems with the origin. Bluntly, no competent statistician (or chemist or physicist) would infer a damned thing about the entire population from this kind of self-selected sample — not even the "population" of "those thinking about governance," which is only a subpopulation that just thinks its opinions are the only ones that matter two and a half centuries later. Cf., e.g., Michael Dorf, Dicta and the Original Meaning of Article III, Dorf on Law (03 Jun 2019).

    But that's the sort of tangent that becomes useful only to those who already have tenure and therefore, in the bizarre political economy of "scholarship," can afford to be both provocative and wrong on a regular basis because such scholarship advances progress in the useful arts and sciences through the testing of ideas without regard to immediate financial benefit, and indeed by explicitly denying the utility of exclusive rights for scholarship. Especially since, in 2004–08, this sort of analysis was unpublishable — particularly originating from someone who could not benefit from the "named chair"/federal judge argument from authority (something that I have observed in action more than once). Pedigree and provenance matter. Indeed, even this tangent may be too much.

  2. See Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251 (1903). And, of course, there is even more dangerous a possibility relating to the sciences, to which "the judiciary" in particular and lawyers in general have even less exposure than the arts. See Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 570 U.S. ___, ___ (2013) (Scalia, J., concurring in part). And the irony that at this writing six and a half years later, this opinion is still not freely available to the public in its final form on the Court's own website gives one further pause on the competence of this Court to rule on the details of the Google-Oracle dispute — or even its context.
  3. Google v. Oracle questions presented (pdf) (accessed 19 Nov 2015). I have carefully omitted the self-serving, less than intellectually honest, incomplete, and misleading "preamble" to those questions, and question whether the attorney(s) who wrote that preamble themselves know what they're asking, understand the duty of candor toward the tribunal, or even care.
  4. See (in an order not approved by the Bluebook, but in which the chain of reasoning becomes clear!) White-Smith Music Publ. Co. v. Apollo Co., 209 U.S. 1 (1908); Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539, 547 (1985) (citing 17 U.S.C. § 102); Feist Publns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

    Citing the extensive international (especially, but not only, European) parallel developments is beyond the scope of this blawg entry. One useful introduction is Andreas Rahmatian, Originality in UK Copyright Law: The Old "Skill and Labour" Doctrine Under Pressure, 44 Int'l Rev. Intel. Prop. and Competition L. 4 (2013), but this just implicates another problem with the Google-Oracle dispute: The failure to identify whose creativity/original expression is at issue, and the presumption that either or both of the parties have standing to assert those rights and/or responsibilities.

  5. See, e.g., Leo Szilard, On the Decrease of Entropy in a Thermodynamic System by the Intervention of Intelligent Beings, 9 J. Beh. Sci. 301 (1964, [questionable] translation).
  6. Five: The four ineptly-if-explicitly identified in § 107 and the overarching problem of "administrative practicability" that always, always lurks inside of any evaluation of the evidence offered and the evidence itself.

    Section 107 is a paradigmatic example of "always run the text of your proposed codification past those who actually litigate the question, not just policymakers." Two of the four factors inherently overlap, two of them will for most fictional works inherently point in opposite directions, and none of the four factors show any sensitivity to artistic process. Cf., e.g., Harold Bloom, The Anxiety of Influence: A Theory of Poetry (1975); Wayne C. Booth, The Rhetoric of Fiction (2d ed. 1983); Northrop Frye, Anatomy of Criticism: Four Essays (1957); Ian Watt, The Rise of the Novel: Studies in Defoe, Richardson, and Fielding (1957).

  7. For those with decently long memories who were actually paying attention during the 1990s, this should sound an awful lot like the Scientology attempts to keep its inner documents both secret and protected by copyright. See, e.g., Religious Tech. Center v. Netcom On-Line Comm., 907 F.Supp. 1361 (N.D. Cal. 1995) (n.b. no endorsement of reasoning or factfinding intended). Whether we're actually talking about "maximizing shareholder value" as a religious text is for a slightly-less-sarcastic different forum; whether that's what is actually happening here… really is not.
  8. The opinions below blithely place both Oracle and Google entirely in the shoes of the individuals whose expression was at issue, on both sides of the v. That, however, seems an unwarranted leap, especially in light of the limitations on works made for hire (because software isn't one of the eligible categories as defined in § 101 of the Copyright Act) and relatively recent clarifications on the independent contractor/employee distinction. Particularly given the historical practices of both Google and Oracle with "independent contractors," I think the courts below — and even the parties themselves — were far too quick to presume that "Google" and "Oracle" truly stand in the shoes of the people involved. Cf., e.g., Dynamex Ops. West, Inc. v. Superior Court (Los Angeles Cty.), 4 Cal.5th 903 (2018).

    On this issue alone, I would be tempted to GVR (grant certioriari, vacate the judgment appealed from, and remand for further consideration/factfinding) this case for further factfinding. Perhaps that is because I primarily work with authors and other creators whose "independent contractor" status is so often abused, especially with unenforceable "work made for hire" agreements (I'm lookin' at you, Del Rey Books and Lucas Enterprises, or at least at your successors in interest). Given the Court's increasing emphasis on "standing must be resolved forever," I don't see that as entirely inconceivable. Entirely improbable, I'll grant (vacate, and remand).