November 2013

Oracle v. Google: How Google Could Lose on Appeal

November 26, 2013

I recently had the privilege of making a presentation on the Oracle v. Google copyright case at the Boston Bar Association (slides here), and although how Google could lose on appeal wasn’t the focus of the talk, that’s what I found myself thinking about after the program. Argument before the Court of Appeals for the Federal Circuit (CAFC) in Washington, D.C. is scheduled for December 4, 2013, and a decision is likely by late summer or early fall, 2014. I view the core issues that threaten Judge William Alsup’s order holding that the structure of the Java API “declaring code” (but not the “implementing code”) is not copyrightable to be the following. 1.  Was Judge Alsup Wrong to Include “Interoperability” In His Analysis of Copyrightability? The heart of the court’s decision that the structure of the Java declaring code (7,000 lines of code) is not copyrightable centers around the conclusion that Google’s use of this code in Android is necessary for third-party partial interoperability with Java.  As the judge stated in his order, “Millions of line of code had been written in Java before Android arrived … Such code was owned by the developers, not by Oracle. In order for at least some of this code to run on Android, Google was required to provide the same command system.” The judge went on to state that “Google was free to duplicate the command…

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Google Book Decision Would Have Thrilled My Father

November 15, 2013

When I began this blog in 2005 I discovered that I had one loyal reader: my father, Bennett Gesmer.  After he passed away on July 4, 2010, just shy of age 90, I found a folder with printouts of all my posts in his desk. My father was a member of the “Greatest Generation.”  He was an Air Force captain in WWII. He spent two years in the Philippines, and the current tragedy there would have deeply saddened him. My father graduated from MIT with a degree in chemical engineering after the war, and spent his life in that business.  He was an “intellectual-without-portfolio” whose heroes were Albert Einstein and Richard Feynman (he overlapped with Feynman at MIT before the war). Like most people trained in science he knew almost nothing about the law. His initial reaction to my blog posts was one of surprise.  “The law is that unclear?” he asked me. “Even judges don’t agree on the law?” In his mind the law was codified, and all a lawyer had to do was look up the answer, which would be clear as day. He was surprised to learn that often the law is as clear as mud. Of all the cases I wrote about he expressed real interest in only one: Google Book Search. After I published the first of several posts on this case in November 2005, he…

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Slides From BBA Presentation: “Oracle v. Google: Are APIs Copyrightable?”

November 14, 2013

Here are the slides from a presentation I made at the Boston Bar Association on November 13, 2013.  The slides are embedded below, and a direct link to the file is here.

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Inevitable Disclosure Doctrine Fails Again (This Time In New York)

November 5, 2013

I’ve written about the “inevitable disclosure doctrine” many times over the years, most recently in a blog post focusing on Massachusetts case law.  This line of cases arises when an employee does not have a noncompete agreement, but does have a non-disclosure/trade secret agreements.  The employer then argues, based on the NDA/trade secret agreement, that the employee will  ”inevitably” disclose the former employer’s trade secrets or confidential information in the course of working for a competitor, and therefore should be enjoined from working for the competitor. Disclosure of the employer’s trade secrets is, the employer argues, “inevitable” without an injunction. Lawyers have been bringing cases under this theory for years, with lottery-like success. As I stated in a July 2012 post, “cases where the courts have accepted this theory without evidence of actual misappropriation are almost as rare as hens teeth.” Nevertheless, lawyers are a persistent bunch, and they Just. Keep. Trying. In September a New York federal court, applying New York law, proved the near-futility of this legal  theory once again. In Janus et Cie v. Andrew Kahnke (S.D.N.Y. Aug. 29, 2013), the district court judge dismissed an employer’s complaint against a former employee, where the case was based entirely on the alleged inevitable disclosure of trade secrets. As is typical in these cases, the former employee had not signed a non-compete agreement with Janus (the former employer), but had signed a non-disclosure agreement that prohibited him from sharing Janus’s “confidential information.”  Janus’ suit sought a…

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