Analogies, it is true, decide nothing, but they can make one feel more at home – Sigmund Freud
One good analogy is worth three hours discussion – Dudley Field Malone
Oracle v. Google, now before the Supreme Court, is a complicated case in more ways than one. The copyright law issues are difficult, but the case is made even more challenging by its subject matter, which involves highly technical and abstruse computer technology. Judges have a hard enough time applying copyright law to traditional media like music, novels and photographs, but software copyright cases add another order of magnitude of complexity.
The legal briefs now before the Supreme Court are overflowing with computer jargon. You can read all about the “Java language,” the “Java virtual machine,” the “Dalvik virtual machine,” “application programming interfaces (APIs),” “packages,” “classes,” “calls,” “declarations,” “methods,” “implementing code” and “declaring code,” and much more.
In the Java system, source code is first converted into `bytecode,’ an intermediate form, before it is then converted into binary machine code by the Java virtual machine” that has been designed for that device. The Java platform includes the Java development kit (JDK), javac compiler, tools and utilities, runtime programs, class libraries (API packages), and the Java virtual machine.
If you’re shaking your head with confusion (or your eyes are glazing over), you’re probably not a Java programer. These are difficult concepts, especially when they are encountered for the first time by people with no background in the complex world of the Java runtime environment.
As best I can determine, the nine Supreme Court justices have little or no background in computer technology. It’s unlikely many of the Supreme Court justices have seen a computer program, less likely they have written one, and even less likely that they are familiar with the Java programming environment. Even if the younger judges received some exposure to programming in college, the world of Java programming is a far cry from the days of BASIC, Fortran and Cobol, the languages taught when the justices were in college.
If, as commentators have suggested, the Federal Circuit’s 2014 decision reflects “a fundamental misunderstanding of how software works”2 where does this leave Google and Oracle, who have to explain the Java environment to the justices so that they can understand the Java API and decide whether Google infringed it?
One answer is through analogy and metaphor. The right analogy has the potential to go to the heart of the case and persuade a judge who might otherwise feel uncomfortable with the technicalities of the case. The right analogy can make the difference between winning and losing this case. However, analogies can also be dangerous – an analogy may be distinguished or even turned against the offering party, so an advocate has to use them carefully.
The last (and until now only) computer software copyright case heard by the Supreme Court in 1996 — Lotus v. Borland — demonstrates this. That case, which involved an easy to understand menu command hierarchy, was far simpler than Oracle/Google from a technical standpoint. Nevertheless, analogies played a significant role. The First Circuit compared Lotus’s menu commands to the buttons used to control a VCR. During oral argument before the Supreme Court the analogies included the dashboard of a Model T Ford (Justice Souter), a system for organizing a department store and labels on the controls in a plane’s cockpit (Justice Breyer), and a method of dance notation and a language (Borland’s attorney).
There has been no shortage of attempted analogies as Oracle v. Google has made its way through the courts over the last ten years. However, in its Supreme Court merits brief filed on January 6, 2020, Google seems to have forgotten the power of analogy. Beyond a simple filing cabinet analogy the district court judge used and that neither party disputes (each package is like a filing cabinet, each class like a drawer and each method like a folder), Google’s brief is lacking analogies that go to the heart of what an API is and how it relates to the Java implementing code.
Fortunately for Google, Google’s supporting amici came to the rescue. Or, it would be more accurate to say that they tried – there’s no guarantee that the justices actually read amicus briefs (there are 27 of them so far, and that number will increase after Oracle files its merits brief).
Nevertheless, the analogies posited by the Google amici are potentially powerful. Here is a sampling.
The Juke Box Analogy. Few academics have written more about copyright protection of APIs than Professor Peter Menell. The Brief of Professors Peter S. Menell, David Nimmer and Shyamkrishna Balganesh (link), written by him, is an argument in support of Google wrapped in a treatise explaining the history of software copyright law. Here is my favorite example from this brief:
If the Java programming language is analogized to musical language, each API implementation can be characterized as a record album featuring songs (methods). Java Standard Edition (SE) then functions like an electrical-mechanical juke box, containing API record albums from which programmers can choose particular songs by invoking declarations (song titles). The fact that another juke box uses those song titles (declarations) to invoke a known song (method) is purely functional: it does not copy a song (method), it merely identifies a known song (method).
I suspect that if there is one amicus brief the justices may want to read it is this one, given that the Nimmer treatise caries so much authority on copyright law.
The Car Controls Analogy. The Brief Amici Curiae of Eighty Three Computer Scientists (link). borrows from the First Circuit’s decision in Lotus v. Borland and uses the analogy of the controls of a car:
A steering wheel and gas and brake pedals have been standard in cars for over a century. . . . Treating software interfaces as copyrightable would be like requiring car manufacturers to invent a substitute for the steering wheel. Startups would not risk manufacturing such a car, and even if they did, consumers likely would not purchase it.
This analogy never gained much traction in the many software copyright cases decided post-Lotus, and I doubt that it will be persuasive here.
The New York City Map Analogy. IBM and Red Hat’s amicus brief (link) analogizes the Java software interface to the New York city maps at issue in a 1879 Supreme Court case, Perris v. Hexamer, where the Court held that a copyright in maps did not extend to a “system of coloring and signs” for identifying real property characteristics or to a “key” which explained symbolic meanings of coloring and signs. Interestingly, Google does not cite this case, even in passing.
The Supreme Court Language Analogy. The entire amici brief of the Empirical Legal Researchers (link) is devoted to developing and explaining an analogy. The brief states:
The facts of this case are unusually technical and threaten to obscure the legal issues. As attorneys who are also software developers, the amici offer an analogy between the computer languages, with which the Court may be unfamiliar, and a kind of language with which the Court is uniquely familiar: the text of Supreme Court opinions.
You’ll have to read the brief if you want to understand this complex analogy and the statistic analysis on which it is based. Perhaps it’s accurate, but it didn’t hit home with me.
The Book and Title Analogy. The Software and System Developers and Engineers for U.S. Government Agencies amici brief (link) uses the analogy of the relationship between a book and its title:
For developers, relying on a declaration to identify a component for interoperation is like relying on a book title to refer to a book, enabling someone to identify the book to locate it and read it. While a book, like an entire software program, may be subject to copyright, a title of a book has long been understood as not subject to copyright.
This is the simplest and best analogy that I’ve seen in the amicus briefs. It will be interested to see if any of the Justices raise it at oral argument.
The Online Checkout Analogy. The amicus brief of the Small, Medium and Open Source Technology Organizations (which includes Mozilla, Shopify, Etsy and Wikimedia Foundation; link) encourages the Court to view software interfaces as “similar to electronic checkout forms you see when shopping online,” where the fields and structure, sequence and organization have become standard conventions. I’m not sure I agree with this analogy, but I can’t challenge the technical qualifications of the companies that proposed it, so perhaps it has some merit.
What about Oracle? How will it respond to these analogies?
We won’t know that until Oracle files its merits brief in February. But Oracle hasn’t been shy in using analogies in this case. Oracle’s 2014 opening brief to the Federal Circuit (link) began with this lengthy analogy:
Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix—the fifth book—and proceeds to transcribe. She verbatim copies all the chapter titles—from Chapter 1 (“Dudley Demented”) to Chapter 38 (“The Second War Begins”). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded.”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves.
J.K. Rowling sues for copyright infringement. Ann’s defenses: “But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base.”
Obviously, the defenses would fail.
Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid—and has offered the same defenses.
The analogy between the Java API and the topic sentences of a fictional literary work seems far fetched. Nevertheless, Oracle seems very attached to it, so look for Oracle to use it again in its Supreme Court brief.
I have no doubt that the many lawyers and technologists on both sides of this case have devoted hundreds, if not thousands, of hours searching for the perfect analogy – the analogy that will go to the heart of the case, make sense to the justices, and lead to victory for their side. Whether Google or Oracle will reach this goal remains to be seen. But when the transcript of oral argument is released keep an eye open for analogies used by the justices and the parties to see which were used and whether they appeared to be effective.
By the way, if you’ve read this post and you’re still wondering, “what the heck is an application programming interface?” you may want to start with Sara Jeong’s 2016 article, What an API Is and Why It’s Worth Fighting For” (link).
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Postscript: Of the nine justices serving on the Supreme Court when Lotus v. Borland was argued in 1996, only three remain today: Ruth Bader Ginsburg, Clarence Thomas and Stephen Breyer. Justice Breyer has a particular interest in copyright law,3 and he was the most active questioner during oral argument in that case. Pay close attention to him during oral argument in this case.
For a summary of all of the amicus briefs filed to date see Jonathan Brand’s post: Broad Support for Google in the First Round of Supreme Court Briefing
Update, 2-13-2020: Oracle did use the Harry Potter analog in its merits brief, but a much shorter version than it used at the Federal Circiuit:
By Google’s logic, a plagiarist could define J.K. Rowling’s idea as “a story about Harry Potter, Ron Weasley, and Hermione Granger who attend Hogwarts” and steal the characters and their back stories. Or she could market detailed knock-offs of bestsellers by declaring that she “had no other choice” but to reproduce verbatim the 11,300 most memorable sentences or scenes because they were “necessary” to allow fans to use their existing knowledge
- The second decision, rendered in 2018, is here.
- “The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t.” Jeong, In Oracle v. Google, a Nerd Subculture Is on Trial (2016)(link).
- See Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs (1970) and Breyer, The Uneasy Case for Copyright: A Look Back Across Four Decades (2010).(link)