Amicus Curiae Brief — Google LLC, Petitioner v. Oracle America, Inc.

No. 18-956

In the Supreme Court of the United States

________________

GOOGLE LLC,

Petitioner,

v.

ORACLE AMERICA, INC.,

Respondent.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

________________

BRIEF OF AMICUS CURIAE SOFTWARE

INNOVATORS, STARTUPS, AND INVESTORS

IN SUPPORT OF PETITIONER

________________

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amicus Curiae

February 25, 2019

TABLE OF CONTENTS

Table of authorities.............................................................. ii

Interest of amicus curiae .................................................... 1

Introduction and summary of argument .......................... 2

Argument ............................................................................. 4

This case is vitally important for all startups. .................. 4

A.

Startups depend on easy access to APIs. ......... 5

B.

The Federal Circuit’s rulings threaten the

easy access to APIs that startups need to

survive................................................................... 9

C.

Without easy access to APIs, startups will

be harder to develop, and harder to fund,

sending ripples through the entire economy.

............................................................................. 13

Conclusion .......................................................................... 19

Appendix............................................................................. 1a

(i)

TABLE OF AUTHORITIES

Cases:

Assessment Techs. of WI, LLC v. WIREdata,

Inc.,

350 F.3d 640 (7th Cir. 2003) ............................................ 14

Baker v. Selden,

101 U.S. (11 Otto) 99 (1880) .......................................... 12

Bateman v. Mnemonics, Inc.,

79 F.3d 1532 (11th Cir. 1996) .......................................... 13

Computer Assocs. Int’l, Inc. v. Altai, Inc.,

982 F.2d 693 (2d Cir. 1992) ............................................. 13

Lexmark Int’l, Inc. v. Static Control

Components, Inc.,

387 F.3d 522 (6th Cir. 2004) ............................................ 13

Lotus Dev’t Corp. v. Borland Int’l, Inc.,

49 F.3d 807 (1st. Cir. 1995), aff ’d, 516 U.S. 233

(1996) (per curiam). ........................................................ 13

Mitel, Inc. v. Iqtel, Inc.,

124 F.3d 1366 (10th Cir. 1997) ........................................ 14

Sega Enterps. Ltd. v. Accolade, Inc.,

977 F.2d 1510 (9th Cir. 1992) .......................................... 13

Statutes:

Digital Millennium Copyright Act,

17 U.S.C. § 1201(f)(1). .................................................... 11

Sonny Bono Copyright Term Extension Act,

Pub. L. No. 105-298, 112 Stat. 2827, § 102(b)

(1998)................................................................................ 15

17 U.S.C. §

102(b) ........................................................................... 9, 11

(ii)

iii

Statutes—continued:

102(a)................................................................................ 15

Other Authorities:

Kevin Ashton, That ‘Internet of Things’ Thing,

RFID Journal (June 22, 2009),

<https://bit.ly/2V0SJBJ>. .............................................. 5

Jonathan Band, Interfaces on Trial 2.0 (2011). ............... 5

Michael A. Carrier, Copyright and Innovation:

The Untold Story, 2012 Wis. L. Rev. 891 (2012) ......... 16

Adam DuVander, 7,000 APIs: Twice as Many as

This Time Last Year, ProgrammableWeb

(Aug. 23, 2012), <https://bit.ly/2EkDnRh> .................. 7

Ewing Marion Kauffman Found., The

Importance of Startups in Job Creation and

Job Destruction 4 (Jul. 2010),

<http://bit.ly/1eODvIy>. .............................................. 18

Deborah Gage, The Venture Capital Secret: 3

Out of 4 Start-ups Fail, Wall St. J., Sept. 20,

2012 .................................................................................. 15

Urs Gasser & John Palfrey, Interop: The

Promise and Perils of Highly Connected

Systems (2012) .................................................................. 5

Paul Goldstein, Goldstein on Copyright § 2.3.11 ............. 9

Fern Halper, Judith Hurwitz, & Marcia

Kaufman, A Web API Study: The Benefits of

APIs in the App Economy (2011),

<https://bit.ly/2XlcWDv>............................................... 8

iv

Other Authorities—continued:

J. Haltiwanger et al., Ewing Marion Kauffman

Found., Declining Business Dynamism in the

U.S. High-Technology Sector 7 (Feb. 2014),

<http://bit.ly/1OWNUPp> ........................................... 18

J.D. Harrison, More businesses are closing than

starting. Can Congress help turn that

around?, Wash. Post, Sept. 17, 2014,

<http://wapo.st/1Parrns>............................................. 18

Darian M. Ibrahim, The (Not So) Puzzling

Behavior of Angel Investors, 61 Vand. L. Rev.

1405 (2008) ......................................................................... 8

Tim Kane, Ewing Marion Kauffman Foundation,

The Importance of Startups in Job Creation

and Job Destruction (2010),

<https://bit.ly/2xxx0GE>. .............................................. 2

Ariel Katz, Copyright and Competition Policy in

Handbook of the Digital Creative Economy

(Christian Handke and Ruth Towse, eds. 2013) ............ 9

Samuel Kortum & Josh Lerner, Assessing the

Contribution of Venture Capital to

Innovation, RAND Journal of Economics

(2000).................................................................................. 8

Gary Lauder, Venture Capital: “The Buck Stops

Where?”, 2 Med. Innovation & Bus. 14 (2010),

<http://bit.ly/2xzoAhi>. ................................................ 16

Nat’l Sci. Bd., Nat’l Sci. Found., Science and

Engineering Indicators (2016),

<http://1.usa.gov/1m7gkxG>. ...................................... 18

v

Other Authorities—continued:

Nat’l Venture Capital Ass’n, Venture Impact:

The Economic Importance of Venture-Backed

Companies to the U.S. Economy (5th ed.

2009), <http://bit.ly/1X8wBmZ>. ................................ 18

Nat’l Venture Capital Ass’n, Yearbook 2017

(2017) <https://bit.ly/2U5bGlP> .................................... 8

Tim O’Reilly, The Open Source Paradigm Shift,

in Perspectives on Free and Open Source

Software (J. Feller, B. Fitzgerald, S. Hissam,

& K. R. Lakhani, eds., 2007)............................................ 6

Open Source Initiative, The Open Source

Definition, http://opensource.org/osd. ........................... 6

Programmable-Web API Directory,

https://www.programmableweb.com/apis/direc

tory ..................................................................................... 7

Pamela Samuelson & Suzanne Scotchmer,

The Law and Economics of Reverse

Engineering, 111 Yale L.J. 1575 (2002) ....................... 11

Small Bus. Admin., Off. of Advocacy, Frequently

Asked Questions 1,

<http://1.usa.gov/1y1jgOO>......................................... 18

Jeffery Stylos & Brad Myers, Mapping the

Space of API Design Decisions, 2007 IEEE

Symposium on Visual Languages and HumanCentric Computing (2007) ......................................... 8, 14

Eric von Hippel, Democratizing Innovation

(2006)................................................................................ 17

World Economic Forum, Technology Pioneers

2018 <https://bit.ly/2yF8wiL>....................................... 2

vi

Webpages:

Apache Software Foundation, Open Office,

http://www.openoffice.org/. .............................................. 6

Basecamp (37signals, LLC),

http://basecamp.com. ....................................................... 7

Disqus, http://www.disqus.com .......................................... 7

GitHub, Inc.,

https://github.com/dewitt/opensearch............................ 7

Last.fm LTD, http://www.last.fm ....................................... 7

Microsoft Kinect, <https://bit.ly/2psUKdl>.................... 7

Mozilla Products, <https://mzl.la/2IASStD> .................. 6

Simple Finance Technology Corp.,

http://www.simple.com ..................................................... 7

Wordpress, http://wordpress.org/. ..................................... 6

In the Supreme Court of the United States

________________________

No. 18-956

GOOGLE LLC,

v.

Petitioner,

ORACLE AMERICA, INC.,

Respondent.

________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

________________________

BRIEF OF AMICUS CURIAE SOFTWARE

INNOVATORS, START-UPS, AND INVESTORS

IN SUPPORT OF PETITIONER

________________________

INTEREST OF AMICUS CURIAE

1

Amici, who are listed individually in the attached appendix, include and represent software innovators,

startups, and investors actively competing in a wide array

of industry sectors and markets. This has given them

1

Counsel for all parties received notice of amicus curiae’s intent to

file this brief 10 days before its due date. Petitioner has lodged a blanket amicus consent letter with the Court, and Respondent has consented to the filing of this brief. No counsel for any party authored

this brief in whole or in part, and no person or entity other than the

amicus, its members, or its counsel made a monetary contribution intended to fund the brief ’s preparation or submission.

(1)

2

first-hand knowledge of the types of application programming interfaces (APIs) at issue in this case, as well as an

appreciation for the role that interoperability—and the

limited, fair, and stable copyright rules on which it depends—plays in driving innovation in the technology sector. Amici write to share the benefit of their considered

expertise in this area, and to urge the Court to take this

case to preserve longstanding limits on copyright that encourage interoperability and allow startups to thrive.

INTRODUCTION AND SUMMARY OF

ARGUMENT

American startups are one of the most vital components of the U.S. economy—one of our chief sources of

jobs, capital, and economic growth. 2 Our startups represent some of the most important drivers of innovation in

the world. This is starkly illustrated by a recent annual

listing which put 24 American startups on a list of the 53

most innovative in the world. 3 And American startups

have renowned histories to match their worldwide impact: the monster powerhouse companies of today, like

Apple, Microsoft, Google, Yahoo!, Intel—and Oracle itself—were all once small, garage-bound startups. Today’s

startups continue that storied legacy, innovating new

products and services that benefit every sector of society

as they grow into tomorrow’s powerhouses. Amici, and

2

See Tim Kane, Ewing Marion Kauffman Foundation, The Importance of Startups in Job Creation and Job Destruction 3 (2010),

<https://bit.ly/2xxx0GE>.

3

See World Economic Forum, Technology Pioneers 2018

<https://bit.ly/2yF8wiL> (listing 24 American start-ups out of a total

of 53 as the most innovative in the world).

3

the companies they fund, rank among the most innovative

of these.

Yet startups are under threat. The Federal Circuit’s

multiple rulings in this decade-long battle between

Google and Oracle have changed the rules of copyright.

By holding that APIs—software interfaces allowing developers to access prewritten lines of code—are copyrightable, and use of them will rarely, if ever, constitute

fair use, the lower court struck a blow against the interoperability copyright meant to protect—a blow that falls

particularly heavily on startup companies. And because of

the Federal Circuit’s special place in the copyright world,

which makes it an option for copyright appeals whenever

a patent is also involved, these new copyright rules will

effectively be nationalized and impossible to avoid. See

Br. of Amicus Curiae Engine Advocacy in Support of Petitioner.

This regime change will allow copyright-wielding incumbents to hold interoperability under lock and key—

permitting them to decide who gets to connect to their

products, and how much would-be connectors must pay.

That is because APIs are essential for connecting different kinds of software components to each other, and often

it is physically impossible, or at least practically impossible, to design around them. In a world where interoperability is critical, an inability to connect to existing products would be the death knell for any small developing

business. Knowing that, incumbents—and the new brand

of copyright trolls the lower court’s decision will foster—

will be able to make the toll to achieve interoperability

very high.

That will force many startups to pay exorbitant royalties to perform rudimentary operations, or engage in

hundreds, or thousands, of expensive workarounds (when

4

such workarounds are even possible). This will exponentially increase the costs of developing software. The likely

result will be that more startups will fail, billions of dollars

in investments will be lost, and consumers will be forced

to spend far more to get far less—stuck with less desirable, less functional products. This Court’s review is essential to bring clarity to the law and to prevent the Federal

Circuit’s erroneous rules from taking hold.

ARGUMENT

This case is vitally important for all startups.

The Federal Circuit’s rulings at issue in this case may

concern only a few lines of code shared between Oracle’s

Java programming language and Google’s Android operating system, but their ripples will be felt throughout all

of copyright law, and the entire American startup community. That is because the dominant concern in today’s marketplace is interoperability. Any new product a startup

might offer must integrate seamlessly into to a world of

existing networks, devices, storage, and software. The

specific type of product does not really matter. Software,

hardware, or brick-and-mortar business—the most innovative offerings in virtually any field will be interoperable.

Regardless of the product, this interoperability is ultimately traceable to software, and depends upon APIs like

those at issue in this case.

By upsetting the legal regime under which these APIs

have traditionally been considered freely and widely

available, the Federal Circuit’s ruling upsets the expectations of the entire startup world, and the balance between

incumbents and the competitors that sometimes follow

fast behind them, adding risk, uncertainty, and expense to

every step in the product-development process. This will

harm the prospects of virtually every fledgling American

5

startup, thereby eroding cornerstones of the U.S. economy.

A.

Startups depend on easy access to APIs.

Modern innovation flourishes through interoperability. Interoperability is the reason you can read a website

regardless of the browser you use, why the email you

wrote on your laptop, through Microsoft’s Outlook email

application, can be read on someone else’s Apple’s iPhone,

and why you can switch flawlessly from watching a movie

on your phone to watching it on your computer, and then

on your television. Your bicycle may be able to keep track

of your workouts, even when you are using someone else’s

bicycle. You may be able to control the temperature of

your house from your phone, or from your watch.

4

1. Any startup must confront this interoperative

world, and find ways for its products to connect to the existing universe of products, platforms, content, and services. Some do so by designing products that connect to

networks—such as through the “Internet of Things.” 5

Some do so by adding features to their products that ultimately come from others—customizing them with readily

available technologies. Many products, for example, add

Google Maps, Twitter interfaces, or links to Facebook into

their applications.

Some offerings connect to, and build upon, others’ innovations—thereby competing with, and sometimes

4

See Urs Gasser & John Palfrey, Interop: The Promise and Perils

of Highly Connected Systems 111-125 (2012).

5

Kevin Ashton, That ‘Internet of Things’ Thing, RFID Journal

(June 22, 2009), <https://bit.ly/2V0SJBJ>.

6

replacing, the original. 6 This, for instance, is what Mozilla

has done with its Firefox browser, Thunderbird e-mail client, the SeaMonkey Internet application suite, and the

FileZilla FTP client. 7 Word processing software OpenOf8

fice competes with Microsoft’s Word. Blogging platform

9

WordPress is widely used. These offerings are all “open

source”—they come with free licenses allowing developers to freely modify and redistribute the program’s

source code. 10 Yet they have become popular because

they are compatible with—even as they compete

against—their proprietary counterparts. 11

2. Regardless of the type of product at issue, interoperative software lies at its heart. And APIs are critical to

achieving that interoperability. These go way beyond

Java’s particular declaring and implementing codes. They

comprise a whole series of programs, subroutines, and

communication protocols providing the basic tools for

building software—with a ready shorthand to stand in for

the sometimes lengthy underlying code. APIs allow hardware and software to communicate with each other, and

allow software to communicate with other software. APIs

6

See Jonathan Band, Interfaces on Trial 2.0 1-5 (2011).

7

Mozilla Products, <https://mzl.la/2IASStD>.

8

Apache Software Foundation, Open Office, http://www.openoffice.org/.

9

http://wordpress.org/.

10

See Open Source Initiative, The Open Source Definition,

http://opensource.org/osd.

11

See, e.g., Tim O’Reilly, The Open Source Paradigm Shift, in Perspectives on Free and Open Source Software 461 (J. Feller, B. Fitzgerald, S. Hissam, & K. R. Lakhani, eds., 2007).

7

also permit programmers to use a single set of instructions to access codes that will translate those instructions

to make them compatible with a host of other platforms.

3. APIs are practically ubiquitous in programming,

used in everything from online discussion, 12 to web

search, 13 project management, 14 banking, 15 motion tracking, 16 and music. 17

“If an app does anything interesting, it likely needs ***

an API.” 18 And APIs are proliferating at a breakneck

pace—with hundreds of new APIs created every month.

Ibid. One popular central listing currently indexes over

20,000 APIs—and it is probably an exceedingly underinclusive listing. 19 Indeed, every startup supported by amicus Foundry Group uses at least one API.

4. APIs have driven growth in the startup community,

because under the legal regime that has operated until

now, developers have properly assumed that they can use

established API descriptive labels, and use the same API

endpoints, as other, familiar pieces of software, for the

sake of interoperability. This enables the creation of

12

13

14

15

16

17

18

Disqus, http://www.disqus.com.

GitHub, Inc., https://github.com/dewitt/opensearch.

Basecamp (37signals, LLC), http://basecamp.com.

Simple Finance Technology Corp., http://www.simple.com.

Microsoft Kinect, <https://bit.ly/2psUKdl>.

Last.fm LTD, http://www.last.fm.

Adam DuVander, 7,000 APIs: Twice as Many as This Time Last

Year,

ProgrammableWeb

(Aug.

23,

2012),

<https://bit.ly/2EkDnRh>.

19

See Programmable-Web API Directory, https://www.programmableweb.com/apis/directory.

8

software for just a few hundred dollars that would otherwise require millions of dollars to produce if everything

had to be coded from scratch.

Fueled by APIs, today’s startups have been able to

flourish, bringing products efficiently to market with limited risk and expense. 20 Indeed, one study found that software programs implementing APIs make it to market

30% faster than those that do not. 21

5. The ease and predictability of creating software with

APIs has attracted venture capital funding, which in turn

has further hastened the pace of innovation. 22 In 2016

alone, venture capital firms provided over $69.1 billion of

to 7,750 companies, largely at the crucial “seed- and earlystage” of their development paths. 23 The dramatic increase in software startups, and indeed, startups of all

kinds, can thus be traced to the ease of transmitting ideas

20

Jeffery Stylos & Brad Myers, Mapping the Space of API Design

Decisions, 2007 IEEE Symposium on Visual Languages and HumanCentric Computing 53-54 (2007) (IEEE Report).

21

See Fern Halper, Judith Hurwitz, & Marcia Kaufman, A Web

API Study: The Benefits of APIs in the App Economy (2011),

<https://bit.ly/2XlcWDv>.

22

See Samuel Kortum & Josh Lerner, Assessing the Contribution

of Venture Capital to Innovation, RAND Journal of Economics

(2000) (finding that increases in venture capital funding in a sector

are associated with statistically significant higher rates of innovation); see also Darian M. Ibrahim, The (Not So) Puzzling Behavior of

Angel Investors, 61 Vand. L. Rev. 1405, 1407 (2008) (discussing the

boosts to employment and gross domestic product that investorbacked firms provided in the 2000s).

23

Nat’l Venture Capital Ass’n, Yearbook 2017 13–14 (2017)

<https://bit.ly/2U5bGlP>.

9

into reality—in significant part due to the ready availability of APIs.

B. The Federal Circuit’s rulings threaten the easy

access to APIs that startups need to survive.

The Federal Circuit’s decisions in this case collectively

make big changes in copyright law that not only disrespect the interoperability copyright was meant to foster,

but have enormous practical consequences for startups.

1. Interoperability is written into copyright’s very

soul. It lives in the limits imposed on copyrightability in

17 U.S.C. § 102(b), which “identifies specifically those elements of a work for which copyright is not available.”

Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 356

(1991). § 102(b) extends copyright protection to expressions of ideas under easily satisfied rules, but stops short

of protecting the ideas themselves and the “procedure[s],

process[s], system[s], method[s] of operation, concept[s],

or discover[ies]” that go into those expressions. These

ideas, methods, and systems are reserved for patent law,

subject to patent’s very rigorous standards to ensure only

very few ideas can be monopolized.

This dual-track dichotomy—between expressions and

ideas, patent and copyright—preserves a wide realm of

ideas and their “creative building blocks,” Paul Goldstein,

Goldstein on Copyright § 2.3.11. It allows people to build

upon everyone else’s ideas, to comment on them, and depart from them, thereby permitting the world of ideas to

work as a seamless, interconnected whole, in which each

idea is accessible, and interacts and operates together

with every other one. Through this interoperability, copyright seeks to “stimulate the production of the most

abundant possible array of expression,” ibid., and to

10

provide new market entrants the means to compete on

equal footing with incumbents. 24

2. The Court has long recognized that giving teeth to

§ 102(b)’s dichotomy requires denying copyright protection in instances where “expression” and “idea” (or building blocks) overlap. Thus, since Baker v. Selden, 101 U.S.

(11 Otto) 99 (1880), the Court has maintained that the description of a method of operation—even an original and

expressive one—is uncopyrightable, lest the copyright

provided to the description capture the unprotectible

method of operation itself. This was true of the accounting

forms in Baker, which were not copyright-protectible

even though they were described in a book that was protected, because “the object of the one [the book] is explanation; the object of the other [the forms] is use.” Id. at

105. This concession was necessary to prevent companies

from keeping whole methods of operation locked up under

copyright protection, cut off from interconnected world of

ideas, simply by applying a descriptive label to them.

3. Until the Federal Circuit’s decision in this case, that

protected zone of interoperability has been universally

extended to software interfaces, preventing them from

acquiring protection even when they bear a descriptive

label. So Lotus’s “menu command hierarchy” was denied

copyright protection, despite the expressive choices that

went into it, because that hierarchy attached to a pure

“method of operation.” Lotus Dev’t Corp. v. Borland Int’l,

Inc., 49 F.3d 807, 809, 816 (1st Cir. 1995), aff ’d, 516 U.S.

233 (1996) (per curiam). Copyright has also made more

direct concessions to interoperability. A company that

24

See Ariel Katz, Copyright and Competition Policy in Handbook

of the Digital Creative Economy (Christian Handke and Ruth Towse,

eds. 2013).

11

copies another’s software interfaces when necessary to

make products work with the copyright owner’s products

has been held to constitute fair use, even when the resulting product competes directly with the copyright owner’s.

See, e.g., Sega Enterps. Ltd. v. Accolade, Inc., 977 F.2d

1510, 1514 (9th Cir. 1992).

Under these widely-applicable principles, the legality

of copying APIs and other interface components has been

settled for over a quarter century. See, e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 710-15 (2d Cir.

1992); Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1539,

1543-1545 (11th Cir. 1996); Lexmark Int’l, Inc. v. Static

Control Components, Inc., 387 F.3d 522, 542 (6th Cir.

2004); Assessment Techs. of WI, LLC v. WIREdata, Inc.,

350 F.3d 640, 644-645 (7th Cir. 2003); Mitel, Inc. v. Iqtel,

Inc., 124 F.3d 1366, 1374-1376 (10th Cir. 1997); Pamela

Samuelson & Suzanne Scotchmer, The Law and Economics of Reverse Engineering, 111 Yale L.J. 1575, 1621-1626

(2002). Congress itself weighed in to endorse this settled

law when it enacted the Digital Millennium Copyright

Act, making an exception to its rules against circumventing anti-piracy protections on software when done “for

the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.” 17 U.S.C. § 1201(f)(1).

4. Yet the Federal Circuit has changed all this, and in

the process undermined concepts of interoperability

hardwired into copyright law. It erased Baker’s limits

against giving protection to an expressive description

when necessary to preserve the availability of the modes

of operation described. It did so by holding that § 102(b)

served only to codify the “idea/expression dichotomy”:

the principle that “[c]opyright protection extends only to

12

the expression of an idea—not to the underlying idea itself.” Pet. App. 137a. Through that interpretation, the

Federal Circuit limited § 102(b)’s applicability, relegating

it to distinguishing among the elements within a particular piece of software that could be protected, rather than

the different types of software could be given copyright

protection. That locked up the modes of operation embodied in the implementing code within Oracle’s APIs, not

because the implementing code itself was expressive, but

because it bore a descriptive declaratory label.

Furthermore, while the law until now has limited copyrightability in software interfaces and APIs because of

their usefulness in achieving interoperability, the Federal

Circuit’s interpretation of the merger doctrine refuses to

give any ground to interoperability even in circumstances

where there is literally no way to avoid using the API—

where a workaround is impossible. The principle of merger provides that “[w]hen there is essentially only one

way to express an idea, the idea and its expression are inseparable and copyright is no bar to copying that expression.” Concrete Machinery Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 606 (1st Cir. 1988). Yet the Federal Circuit deemed this principle “irrelevant” to the copyrightability of Oracle’s APIs, and was in any event not

satisfied, because Sun could have written the declarations

in more than one way. App., infra, 142a-143a, 148a, 150a151a. By that rule, if the creator of the API had multiple

choices in how he could write the API, the merger problem disappears even if that results in making it harder, or

impossible, to connect. That effectively hands to the software developer an absolute power to dictate who is entitled to connect to his products.

The Federal Circuit’s determinations regarding fair

use strike further blows to interoperability, first through

13

an over-rigid application of the transformative-use factor.

The Federal Circuit held that even though Oracle’s APIs

comprised only a tiny fraction of the 15 million lines of

code in the Android operating system, and even when

Google rewrote the implementing code to create an entirely different platform, that still did not make Google’s

use transformative. Pet. App. 25a-28a. With the bar set

that high, virtually no other innovator will be able to make

transformative use of an API, even when it changes some

of the code itself.

The lower court made things still worse with its application of the fair use defense’s market-harm factor. It

found that factor satisfied because some early cell phones

used Java, even though neither Oracle nor Sun succeeded

in developing a phone of their own. Pet. App. 50a. It also

found market harm based on the potential that Oracle

might enter the smartphone market in the future. Id. 51a.

This did far more than simply protect the expressions Oracle had actually created in Java—it put the products Oracle might create, or had tried, and failed, to create, under a 95-year monopoly. See Sonny Bono Copyright Term

Extension Act, Pub. L. No. 105-298, 112 Stat. 2827, §

102(b) (1998). These are devastating blows to the interoperability that copyright is meant to protect—and singlehandedly withdraws many APIs from the public domain.

C.

Without easy access to APIs, startups will be

harder to develop, and harder to fund, sending

ripples through the entire economy.

The collective effect of the Federal Circuit’s rulings

presents a serious, multi-faceted threat to startups.

1. With APIs no longer freely available for developers

to use, many will have to design around them by writing

code from scratch. That alone will significantly magnify

14

the cost of development for new products, because the

very interoperability that APIs foster virtually guarantees that achieving that interoperability without them will

involve writing individual code to connect to a great many

pieces of other software and hardware. Moreover, when

APIs are no longer readily available to translate code between different platforms, developers will have to write

several different versions of programs—one for each

hardware platform or incompatible program language.

2. Further complicating matters, many APIs cannot

be designed around. The process is either too cumbersome or functionally impossible. This is because often developers “must use the provided APIs because the implementation details are intentionally hidden” to protect intellectual property rights in protectable elements of interacting programs. IEEE Report, supra note 20 at 5.

But under the Federal Circuit’s new rules, these barriers

to interconnectivity are irrelevant—APIs will remain

copyrightable no matter how hard it is to design around

them. The Federal Circuit’s high bar for transformative

use adds a further barrier to work-arounds, because it indicates that a fair-use defense may be inapplicable even if

changes are made to the API’s description or its implementing code in the process of applying it in a new environment. As the result of these difficulties, many developers will have no choice but to license APIs. And given

the ubiquity of APIs, it is no stretch to imagine that obtaining the licenses necessary to create new products in

the future could require negotiating agreements with

every platform, programming language, and each platform provider in the economy.

3. These circumstances will transform a few lines of

code into powerful weapons. Those who control the APIs

will be able charge tolls that would-be connectors must

15

pay. That will breed a new kind of troll who will be empowered to demand shakedown royalties from developers. It will also empower market incumbents to make

anti-competitive uses of their APIs, locking down their

products by controlling the APIs needed to connect with

them. That will allow them to choose their competitors

and shut down competing products.

This effective product monopolization will give incumbents a very patent-like protection for their copyrighted software and basic modes of operation—granting

monopolies not to particular expressions of ideas, but to

ideas themselves. These anti-competitive weapons will

prove all the more attractive because obtaining them will

not require meeting the rigorous standards for obtaining

a patent, but only the low bar of originality under § 102(a).

And because these weapons stem from copyright protection, they will come with copyright’s stiff penalties, and

copyright’s 95-year life. All this will give incumbents huge

competitive edges over startups, earned not through expressive innovation, but through the vagaries of copyright law. This combination of copyright and patent will

prove a toxic mix.

4. The potency of these weapons will be magnified further still by the basic doctrinal shift from copyrightability

to fair use that the Federal Circuit’s decisions represent.

When copyright liability ultimately depends not on objective factors applied by an Article III judge, but on the

subjective views of twelve unskilled jurors—and even

those juror’s discretion is unnecessarily cabined by arbitrary rules—then it will be harder for product developers

to make basic decisions about their potential liability during the course of design. That uncertainty will only increase the leverage possessed by the incumbents and the

trolls.

16

5. In a world where every API thus becomes an opportunity to block a product or exact a toll, startup development will become far harder to do, and harder to fund.

Startups already face serious resource constraints—

which is why 3 out of every 4 already fail. Deborah Gage,

The Venture Capital Secret: 3 Out of 4 Start-ups Fail,

Wall St. J., Sept. 20, 2012. Many will be unable to bear the

extra expense and risk fostered by the Federal Circuit’s

decisions on their own.

And there will be few who will be willing or able to help

them. The threats posed by the lower court’s rulings will

serve to make venture capital funding much harder to

come by. Because startup investing is already such a risky

enterprise, investors have little appetite for litigation

risk—every dollar they spend fighting lawsuits imperils

the chances that products they fund will make it to market and their investments will be recouped. Indeed, investors have proven so skittish at the prospect of copyright

suits that the startup boneyard is littered with entire

technological fields that suddenly became dried-up

“wastelands” when copyright suits made funding them

too unattractive. See Michael A. Carrier, Copyright and

Innovation: The Untold Story, 2012 Wis. L. Rev. 891, 916

(2012).

Investors will be far less likely to invest in any

startups that might face copyright lawsuits relating to

APIs. Then, down the development road, when copyright

threats pop up suddenly, investors will be far less likely to

extend the often-critical second and third rounds of funding needed to allow the product to flourish, each of which

require greater investments from increasingly risk-adverse investors. Gary Lauder, Venture Capital: “The

Buck Stops Where?”, 2 Med. Innovation & Bus. 14, 18

(2010) (Venture Capital), <http://bit.ly/2xzoAhi>.

17

All that means fewer startups will survive, and those

that do will see their competitiveness hampered significantly. The increased costs of development needed to design-around or license APIs will sap startups of the funding they need to compete for business. Startups will also

be forced to make strategic choices to avoid copyright

risks that will inhibit their ability to create innovative

products, meaning that the designs of their products will

ultimately be driven by the demands of recalcitrant copyright owners—not the needs of the market.

6. Customers will also feel the ill-effects of the Federal Circuit’s erroneous rules. Licensing fees and increased development costs will make products more expensive. And the anti-competitive, balkanized world of

product development fostered by the Federal Circuit’s

ruling will make available products much worse. Worse

because the products that come to market will be less interoperative, and thereby less functional and innovative.

Worse because companies will wall off their products from

interoperability as they wall them off from competitors—

deciding what web pages you can access, what files you

can share, or what programs you can download.

Worse too because that loss of interoperability will

breed increased switching costs. It is easy to switch between products in an interoperative world, because interoperability breeds compatibility and universality. The

skills and customs you develop on one product are likely

to translate when you move to another product. That is

because interconnected products build off one another.

But when products are less interoperative, users contemplating a switch to a new product will have to contend with

the fact that doing so will require them to give up their

comfort and the skills they have developed on the product—and in many cases, the innovations to that product

18

they have also made along the way. See Eric von Hippel,

Democratizing Innovation 4 (2006) (cataloguing instances of end-user innovation and explaining that empirical studies show that as many as 40 percent of users engage in modifying products.). That will make consumers

less likely to switch even if they identity a product.

7. Finally, the destabilizing effects of the lower court’s

ruling on small and startup businesses will threaten the

economy as a whole.

Growth in the American economy depends on advances from small startups. Startups have nourished

much of the creative disruption that has fueled innovation

and the American economy, spurring developments in industries as diverse as computer software, semiconductors, online businesses, life sciences, and emerging clean

technologies. 25

Aside from the life-enhancing innovations small businesses provide, they also create over 63% of all private

sector jobs, 26 and employ over 37% of all scientists and

engineers. 27 At present, net job growth in the U.S. is attributable entirely to jobs created by small startup firms,

25

Nat’l Venture Capital Ass’n, Venture Impact: The Economic Importance of Venture-Backed Companies to the U.S. Economy 9–10

(5th ed. 2009), <http://bit.ly/1X8wBmZ>.

26

Small Bus. Admin., Off. of Advocacy, Frequently Asked Questions

1, <http://1.usa.gov/1y1jgOO>.

27

Nat’l Sci. Bd., Nat’l Sci. Found., Science and Engineering Indicators, fig. 3-12 (2016), <http://1.usa.gov/1m7gkxG>.

19

because companies that are more than one year old actually destroy, on average, more jobs than they create. 28

Recently, however, the startup and small-business environment has begun to suffer. Since the 1990s, the number of technology-related startups is down nearly 40%. 29

For the first time, more companies are going out of business than starting up. 30 The Federal Circuit’s new copyright rules, and the cloud they cast over the development

of new products, will risk tilting the balance still further,

inhibiting startup growth and innovation, and depriving

the economy of good, high-paying jobs. For this reason,

along with all the others mentioned above, those rules

must be reversed.

CONCLUSION

The petition for writ of certiorari should be granted.

28

Ewing Marion Kauffman Found., The Importance of Startups

in Job Creation and Job Destruction 4 (Jul. 2010),

<http://bit.ly/1eODvIy>.

29

J. Haltiwanger et al., Ewing Marion Kauffman Found., Declining Business Dynamism in the U.S. High-Technology Sector 7

(Feb. 2014), <http://bit.ly/1OWNUPp>.

30

J.D. Harrison, More businesses are closing than starting.

Can Congress help turn that around?, Wash. Post, Sept. 17, 2014,

<http://wapo.st/1Parrns>.

20

Respectfully submitted,

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amicus Curiae

February 25, 2019

APPENDIX

ia

INDEX

Appendix............................................................................. 1a

1a

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APPENDIX

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Azavea – Azavea is a software design and engineering

firm based in Philadelphia with a mission to advance the

state of the art in geospatial technology and to apply it for

civic, social, and environment impact. Employing 65

people, Azavea’s work depends on an open innovation

ecosystem, and we believe that the ability to use APIs is

critical to both our work and that of all our clients. Our

work requires the use of APIs because all of the digital

systems we build rely on the ability to integrate different

components into a larger system. We believe that the

primary value of an API is in the implementation,—the

specific way in which instructions passed through the API

interface are executed, rather than in the APIs

specification. As such, we believe the implementation of an

API should be subject to copyright but that the API

specification should remain in the realm of ideas such that

technologists can use them without seeking a license. The

inability to freely use an API will be destructive to the

open innovation ecosystem upon which the Internet and

US technological leadership has been built and its future

prosperity depends.

Esther Dyson – Swiss-born American journalist,

author, businesswoman, investor, commentator and

philanthropist, Esther is a leading angel investor focused

on breakthrough efficacy in healthcare, government

transparency, digital technology, biotechnology, and space.

Esther is currently focusing her career on health and

2a

continues to invest in health and technology startups.

Foundry Group – Foundry Group LLC is a venture

capital firm that invests in early- and growth-stage

technology companies throughout the United States. Its

founders have almost 30 years of experience investing in

venture funds. In addition to providing capital, the firm

contributes its experience in starting and growing

companies, its expertise in the technology sector, and its

network of relationships, to help outstanding

entrepreneurs and venture capital fund managers turn

great ideas into great companies. Foundry Group is an

SEC Registered Investment Adviser with more than $2.5

billion under management.

Tim O’Reilly -- Forty years in tech has shaped Tim

O’Reilly, CEO and founder of O’Reilly Media, into a man

who constantly thinks about the future in the hopes of

making a difference in the present. The media mogul,

futurist, and the man credited with creating the first ever

commercial website (or web portal), started his media

enterprise at a time when people were more likely to own

a typewriter than a personal computer. His company,

O’Reilly Media, delivers online learning, publishes books,

runs conferences, urges companies to create more value

than they capture, and tries to change the world by

spreading and amplifying the knowledge of innovators.

Union Square Ventures – Union Square Ventures is a

Venture Capital firm that invests in internet applications,

including social media, marketplaces, developer

infrastructure, health, education, and blockchain and

cryptocurrencies. Founded in 2004, USV has invested in

over 100 startups.