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FindACase | Gordon v. Amadeus IT Group S.A.
Gordon v. Amadeus IT Group S.A.
AMADEUS IT GROUP S.A., et al., Defendants.
In this discovery matter related to a lawsuit pending in the Southern District of New York, non-parties Sam Gilliland, Tom Klein, Kyle Moore, and Greg Webb (collectively, “movants”) object to the magistrate judge's order denying their motion to quash deposition subpoenas and denying in part their alternative motion for protective orders. Concluding that movants have failed to demonstrate that the magistrate judge abused her discretion in denying the motion to quash and denying in part the alternative motion for protective orders, the court AFFIRMS the magistrate judge's order.
This discovery dispute arises in connection with a lawsuit brought against Sabre Corporation (“Sabre”) and others in the Southern District of New York (the “Gordon” suit). The plaintiffs in Gordon served subpoenas on movants, all of whom are former Sabre employees. Movants moved to quash the subpoenas on the ground that movants had already been deposed in other lawsuits against Sabre regarding the “same alleged misconduct, ” i.e., the alleged conspiracy on which the Gordon suit is based, and that it “therefore [was] neither reasonable nor necessary for Plaintiffs to force Movants to be questioned a third time on the same alleged misconduct.” Mot. 17. The court referred the motion to the magistrate judge for determination.
Following a hearing, the magistrate judge denied the motion to quash, holding that there was no legal reason why the Gordon plaintiffs should not be given an opportunity to depose witnesses who the magistrate judge determined “clearly may have relevant information to their claims, even though other parties who [the plaintiffs are] not connected to may have brought similar claims before.” Dec. 22, 2017 Hrg. Tr. 36. The magistrate judge granted “to a very limited extent” movants' alternative motion for protective orders, and she ordered “that the witnesses are not required to simply confirm their previous testimony or deposition testimony through the depositions.” Id. at 37; see also Id. (stating that the witnesses “will not be called upon to simply confirm that what they've already testified to is accurate or true.”).
Movants object to the magistrate's ruling on several grounds, contending that she erred in refusing to take into account Judge Failla's decision on plaintiffs' motion to compel José Tazón's deposition; in failing to consider plaintiffs' lack of need for movants' depositions; and in refusing to limit the length and scope of movants' depositions to subjects on which they have not previously been deposed.
Because the magistrate judge's order involves a nondispositive matter (a discovery ruling), defendants' objections are governed by Fed.R.Civ.P. 72(a), which provides, in pertinent part: “[t]he district judge . . . must . . . modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law.” Id. “When a party appeals a magistrate judge's order, [it] must demonstrate how the order is reversible under the applicable standard of review-de novo for error of law, clear error for fact findings, or abuse of discretion for discretionary matters.” Jefferson-Pilot Life Ins. Co. v. Bellows, 2003 WL 21501904, at *1 (N.D. Tex. June 24, 2003) (Fitzwater, J.). “The clearly erroneous standard applies to the factual components of the magistrate judge's decision.” Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. Tex. 1996) (Fitzwater, J.) (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (Fitzwater, J.)) (internal quotation marks omitted). “The district court may not disturb a factual finding of the magistrate judge unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks and brackets omitted). “If a magistrate judge's account of the evidence is plausible in light of the record viewed in its entirety, a district judge may not reverse it.” Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks omitted). The legal conclusions of the magistrate judge are reviewed de novo, and the district judge “reverses if the magistrate judge erred in some respect in her legal conclusions.” Id. (citing Smith, 154 F.R.D. at 665). “[T]he abuse of discretion standard governs review of that vast area of . . . choice that remains to the [magistrate judge] who has properly applied the law to fact findings that are not clearly erroneous.” Id. (quoting Smith, 154 F.R.D. at 665) (alteration and ellipsis in original) (internal quotation marks omitted).
The court reviews the magistrate judge's discovery decision under the abuse of discretion standard, and it does not substitute its own judgment for that of the magistrate judge. See Nunn v. State Farm Mut. Auto. Ins. Co., 2010 WL 2044477, at *4 (N.D. Tex. May 24, 2010) (Fitzwater, C.J.) (“And in matters of discretion-and discovery decisions are usually quintessential examples of the exercise of discretion-district judges do not substitute their own judgment for that of the magistrate judge.”); see also Hoffman v. L & M Arts, 2013 WL 655014, at *2 (N.D. Tex. Feb. 21, 2013) (Fitzwater, C.J.) (reviewing discovery decision for abuse of discretion).
[t]he difference here from when the witnesses were deposed is that they have testified and they have been deposed and so there may be information that's come from trial and other documents and other evidence that's gathered that's different from that pretrial, pre-deposition when they were first deposed and when they were first questioned and cross-examined at trial. . . . I respect Judge Failla. Obviously, [she] has more information about this case than I do. . . . But, I mean, basically, there is no legal basis to deny them their opportunity to depose witnesses who may have relevant information in their case simply because you unfortunately have had to defend similar claims previously.
Dec. 22, 2017 Hrg. Tr. 36-37.

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1.	Florine D' Souza executed a will on or about 06.05.1992. She had two daughters Olivia and Olympia. Both of them had become nuns. The 1st daughter Olivia died in 1975. The 2nd daughter Olympia died on 27.09.1993.
East :	Property allotted to 'B' Schedule belongs to the Same sub-Division.
South	:	Portion of Sy. No. 123/1A1A West	:	Portion of Sy. No. 123/1A1A North :	Sy Line With tiled house bearing No. 8  87, with all mamool and easementary rights with all appurtenants and also all the movables belonging to me."
East	:	Portion of the Sy. No. 123/5, 123/3, 123/1A1B South :	Portion of Sy. No. 123/1A1A West :	Property allotted to 'A' Schedule of same Sub- Division North	:	Sy. Line 123  5	Garden 0  09 With a tiled house, timbers all mamool and easementary rights"
3.	Whereas the property described in Schedule 'A' appended to the said will was bequeathed in favour of the appellant, the property described in Schedule 'B' thereto was bequeathed in favour of the respondent. Florine died on 13.03.1994. An application for grant of Letters of Administration with a copy of the will annexed, in terms of Section 276 of the Indian Succession Act, 1925 (for short 'the Act') was filed by the appellant.
4.	The plea raised by the respondent in the suit was that the testatrix was an aged woman and did not have a proper frame of mind at the time of purported execution of the will to understand the contents thereof.
"Circumstances go to show that the defendant had constructed his own house in one portion of the land that belonged to the old lady. 23 cents of land was given to the defendant under the will and 16 cents of land including the old house was given to the plaintiff who attended the old lady during her old age. I do not find anything unnatural in the bequest made by the old lady.
She has given larger extent of land to the defendant who is the son of the sister of the Testatrix. That shows that the disposition made by her was consistent with the natural course of human conduct."
It was held that as the propounder did not take any interest in the matter of execution of the will, no suspicious circumstances existed.
i)	PW-2, the only attesting witness, examined in the matter, admitted that she had put her signature on a handwritten will, whereas the will had in fact been typed in Kannada language. Hence the due execution of the will was not proved.
ii)	The will contained various overwritings and cuttings, which establish existence of suspicious circumstances.
iii)	Evidence of PW-2 does not prove either execution or attestation of the will as per Ex. P-2, as the thumb mark affixed by Florine D' Souza on it was not got marked in the evidence of PW-2 and she had not identified the thumb mark on Ex. P-2 as the thumb mark which was affixed by Florine D' Souza in her presence.
iv)	Mere fact that the will was a registered one would not dispense with the requirements of proof of due execution and attestation of the will for grant of Letters of Administration.
i)	The proof of execution of the will cannot be discarded only because all the precedent requirements of law had not been fulfilled.
ii)	As it was proved that the plaintiff-appellant was serving the testatrix since 1986, there was no reason to disbelieve the bequest made in her favour by way of a will.
8.	The testatrix was a 96 years old lady. She had been suffering for a long time. She was bed-ridden. No evidence has been brought on record to show as to who had drafted the will.
9.	Even if it be assumed that the appellant had nothing to do in regard to preparation of the draft or registration thereof, nothing has been brought on record to show as to who had drafted the will, or at whose instance it came to be registered.
10.	PW-2 is the attesting witness. She was called to be a witness to the execution of the will. On or about 06.05.1992, when she had come to the house of the testatrix, the will had already been written. According to her, only after she had come, the testatrix put her L.T.I.. Two days thereafter, the will was registered, on which date also she was asked to be present.
11.	The High Court has arrived at a conclusion that the execution of the will has not been proved in accordance with law.
(a)	The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b)	The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c)	The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
13.	Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW-2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will.
"15. Proof of a Will shall strictly be in terms of the abovementioned provisions.
16. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made."
"20. Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence."
"24. However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.
25. Each case, however, must be determined in the fact situation obtaining therein.
26. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.
27.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records.
They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision."
"32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document."
"36. The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone.
Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]"
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9 SCC 515].
"6. A learned Single Judge of the High Court by his judgment dated 25.5.1996 held that the will dated 24.9.1986 was genuine and was not a forged one. The learned Single Judge took into consideration various factors e.g. that the testator himself presented the will for execution, and there was a dispute between the testator and his elder daughter and hence he wanted to bequeath his properties to his second daughter and the sons born to her, etc.
7. In appeal the Division Bench of the Madras High Court set aside the judgment of the learned Single Judge but without a proper consideration of the various facts and circumstances of the case mentioned by the learned Single Judge in his very elaborate judgment.
8. The Division Bench was evidently influenced by the fact that the elder daughter was deprived of her share in her father's property. However, the Division Bench has not taken into consideration the various considerations which according to learned Single Judge motivated the testator to deprive his elder daughter, the respondent herein."
[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors.  C.A.
17.	Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi [AIR 1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand [ILR XIX Lucknow 445] are misplaced.
18.	The requirements to prove execution of the will are laid down under Section 63 of the Act only in the year 1925. The law has since undergone a change. In any event, this Court is bound by the decisions of this Court.
"It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted"
20.	The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case.
21.	For the reasons aforementioned, there is no merit in this appeal, which is accordingly dismissed. In the facts and circumstances of the case, there shall, however, be no order as to costs.

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Welcome to Differential Equations! For course info and policies, please see the syllabus. For grades, log into Moodle. If you need help or have questions, please contact Prof. Wright.
Watch this video: What are differential equations?
Read §1.2, up to the heading "Missing Solutions" on page 27. Come to class on Monday knowing what is a separable differential equation.
Finish reading §1.2. Then do exercises #1, 3, 5, 8, 15, 17, 25, 28.
Read this article and answer the following question: What are three ways that students with a growth mind-set approach challenges differently than students with a fixed mind-set?
Your answers to the two items above are due 4pm Wednesday in the homework box.
Read §1.3. Come to class knowing how to interpret a slope field.
Do §1.3 exercises #1, 3, 8, 11, 13, 14, 16, 17. Note: You do not need to use HPGSolver; instead, you may use Mathematica, Desmos, GeoGebra, or other technology.
Read this article and answer the following questions: According to Devlin, what is the secret to doing mathematics? How does this relate to the growth mind-set from the article you read last week? How might Devlin’s secret be relevant in this course?
Your answers to the two items above are due 4pm Friday in the homework box.
Read §1.4, up to the middle of page 59.
Watch the video Existence and Uniqueness. Also read §1.5, at least through page 67.
Read from the beginning of §1.6 through page 79. Take note of the definition of autonomous differential equation and pay special attention to how a phase line can be used to sketch solutions.
Read from the beginning of §1.7 through page 99. Take special note of the definition of a bifurcation.
Read §1.8. Take note of the Linearity Principle and the Extended Linearity Principle, and how they are used in solving linear differential equations.
Watch the video The Integrating Factor Method. Then read §1.9 through page 128.
The next homework includes §1.8, exercises 1, 4, 5, 8, 10, 17, 19, 23. Because the lab is due Wednesday, this homework is due Friday.
Finish reading §1.9, especially the subsection Comparing the Methods of Solution for Linear Equations (p. 131–132).
Read §2.1, through the end of the predator-prey discussion on page 156. Take special note of how the R(t) and F(t) graphs relate to the solution curves in the phase portrait.
Read the spring-mass discussion in §2.1 (pages 156–160). Also read §2.2 and note how direction fields can be used to understand phase portraits.
Read §2.3. Note how the "guessing" method is used to solve the differential equation in this section.
Read §2.4. Note how a decoupled system can be solved by solving each differential equation separately.
Read §2.5, and observe how a 2-D version of Euler's method can be used to solve systems of two differential equations.
This exam will cover Chapter 1 and the first four sections of Chapter 2.
Calculators will be permitted, but probably not very helpful, and certainly not necessary. Computer algebra systems (including the TI-89, TI-92, and TI-Nspire calculators) and internet-capable devices will not be permitted.
Read §3.1. Note how the concepts of determinate, linear combination, and linear independence from linear algebra can be applied to systems of differential equations.
Fall break! No class Monday, October 16.
Read §3.2. Look for the answer to the question: How do straight-line solutions of a linear system connect to eigenvectors of a matrix?
Read §3.3. What types of phase portraits that are possible for linear systems with real eigenvalues?
The next homework includes §3.2, exercises 1, 4, 5, 11, 12, 21. Because the lab is due Friday, the next homework is due Monday.
Do §3.2 exercises 1, 4, 5, 11, 12, 21 and §3.3 exercises 17, 18. For each of these problems, identify the type of equilibrium point that you find.
Read §3.4, at least through the box at the top of page 305. Pay attention to the how the authors solve the example linear system, especially to how two linearly-independent real solutions are obtained from the complex solution.
If you want to know more about Euler's formula, watch this video by 3Blue1Brown.
This weekend, the help session will be Sunday, 1–2pm in RNS 206.
Read §3.5. Note what types of phase portraits can occur for linear systems with repeated (real) eigenvalue or zero eigenvalues.
Review §3.3 through §3.5. Note the different types of phase portraits that can occur for linear systems, and how they are determined by the eigenvalues of the matrix of coefficients.
Read §3.6. How can we use our knowledge of linear systems to solve second-order differential equations?
Read §3.7. Observe how the type of phase plane of a linear system can be found from the trace and determinant of the matrix.
Read §4.1. Come to class knowing the Extended Linearity Principle on page 390. Note that this is the same principle that we previously encountered in Section 1.8 (page 114).
Read §4.2. Focus on the qualitative analysis and phase portraits. We will discuss "complexification" in class.
Begin Lab 3 (linear systems), if you haven't already.
Read §4.3, pages 415–420. Pay special attention to the graphs of solutions that can occur when the forcing function is a sine or cosine.
Finish reading §4.3. Understand that a forcing frequency very close to the natural frequency produces a large-amplitude forced response.
Study for the exam: see below for review problems, and don't forget about the help session Saturday, 3–4pm in RNS 206.
Chapter 3 review (pages 376–380) exercises 1–32.
Chapter 4 review (pages 449–451) exercises 1–4, 10–12, 15–23.
This exam will cover Chapter 3, sections 1 through 7, and the first three sections of Chapter 4.
Read §5.1. Observe how linearization allows one to approximate a nonlinear system near an equilibrium point by a linear system. Come to class knowing what is a Jacobian matrix.
Read §5.2. Come to class knowing the definition of a nullcline.
Thanksgiving break! No class Wednesday, Nov. 22 or Friday, Nov. 24.
Review §5.1 and §5.2. Notice how analysis of equilibrium points and nullclines can provide a lot of qualitative information about solutions to systems of differential equations, even if you can't write down formulas for the solutions.
Read §5.3. Pay special attention to the story on pages 490–493. Come to class knowing what is a conserved quantity and a Hamiltonian system.
Read §6.1. Note the definition of the Laplace transform and how it can be used to solve differential equations.
To learn more about William Rowan Hamilton, watch this music video (a parody by acapellascience of the Alexander Hamilton song from the Hamilton musical).
Read §6.2. Come to class able to draw the graph of the Heaviside function ua(t).
Read §6.3. Note the technique used to compute the Laplace transform of the sine function, and how the Laplace transform can be used to solve second-order differential equations.
Finish Lab 4 (oscillating chemical reactions).
Read §6.4. Pay special attention to the definition of impulse forcin and how it is modeled using the Dirac delta function.
Read the final exam information below, and do some review problems for the final exam.
Final Exam Information: The final exam will consist of a take-home problem and an in-class exam.
The take-home problem will be distributed on the last day of class and due at the final exam period. You may use technology and other course resources to solve the problem, but you may not talk to people (other than the professor) about the problem.
The exam will cover the sections we have studied from Chapters 1 through 6, with emphasis on Chapters 5 and 6.
For the in-class exam, calculators will be permitted, but probably not very helpful, and certainly not necessary. Computer algebra systems (including the TI-89, TI-92, and TI-Nspire calculators) and internet-capable devices will not be permitted.
A Laplace Transform Reference will be provided during the exam.
As you study, consider working the problems from these old exams by Bob Devaney, one of the authors of our textbook.
Also consider problems from the chapter review sections in the text.
Lastly, make sure you are familiar with the St. Olaf final exam policies.

matches: §1 §1 §1 §1 §1 §1 §1 §1 §1 §1 §1 §1 §2 §2 §2 §2 §2 §2 §3 §3 §3 §3 §3 §3 §3 §3 §3 §3 §3 §3 §4 §4 §4 §4 §5 §5 §5 §5 §5 §6 §6 §6 §6


Google has now responded to Oracle's appeal in the Oracle v. Google API copyright case. Plus it adds its own cross appeal. It's fascinating.
Copyright protection of functional works is said to be 'thin' because section 102(b) of the Copyright Act filters out and denies protection to the functional elements within those works. The more functional the work is, the more there is to filter out. Section 102(b) provides that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Congress explained that one reason for enacting section 102(b) was to "make clear" that "the ‘writing" expressing [a programmer’s] ideas”—his code—is “the copyrightable element in a computer program," while "the actual processes or methods embodied in the program are not within the scope of the copyright law."
Accordingly, this Court should affirm the copyrightability judgment while granting Google’s cross-appeal on two minor issues of literal infringement. However, if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google’s fair-use defense (as well as the inseparable issue of infringement).
Was Google’s use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?
Just a reminder that you can find the amicus briefs filed in this appeal here. As you can see in the docket text, Oracle gets to respond and must do so by July 5th.
Update: Here's an article by Pamela Samuelson on "Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection," referenced in the brief. And in the very early days of Groklaw, I wrote about the Baker v. Selden case (101 U.S. 9 (Mem), 11 Otto 99, 25 L.Ed. 841), which is about the difference between patent and copyright protections, a case that the brief goes into in some detail. Here's the Sony case referenced throughout; here's Sega v. Accolade; and here's Lotus v. Borland.
Update 3: Now that I have finished the text for you, let me highlight a few more striking elements in Google's brief. I'll be leaving out the footnotes, which you can get from the text version, below.
Sun and its collaborators, including Oracle, recognized that they could not accomplish these goals by creating another proprietary platform, which Microsoft would dwarf. Instead, they made Java open and free for anyone to use, to create a larger and more competitive market. Sun's strategy was to "build trust" with potential partners by declaring that all specifications would be "decided in the open" and that "[e]veryone [would] have equal access to them" so that they could then "go off and create [their] own products." As part of that strategy, Sun "made a lot of noise about open APIs" so as to "bring in as many people as possible . . . to the Java Community. . . . We wanted to basically build the biggest tent and invite as many people as possible."
Oracle admits that nobody owns the JPL; it is free for anyone to use without obtaining any license or paying any royalty. Also free to use is the Java API that programmers use to access pre-written code in the Java class libraries (as discussed below).
Sun's strategy enticed an entire generation of programmers into the Java Community and turned the programming conventions of the free and open Java language into a de facto industry standard. Sun "went across the world" to help universities create Java curricula and courseware so that Java could be taught in colleges and high schools, "because then [students] would graduate and . . . go to work for a big company that could become a customer, or they would go off and start a whole new company based on Java." JavaOne, the annual Java developer conference, became the largest developer conference in the nation. Soon after Java's release, thousands of programmers adopted it; eventually, millions did — and Java became the world's most popular programming language.
So to do a 180 now is to violate those understandings. People freely donated code because they believed they'd be free to use the end, collaborative result, because Sun said they would be able to do precisely that. Without the APIs, there is no "write once, run anywhere".
Fundamental to object-oriented programming languages are "class libraries" — pre-written, ready-made classes, with associated methods, fields, and interfaces, that programmers can (and in some cases, must) use when writing object-oriented programs. A class library simplifies the programmer's work by allowing him or her to incorporate pre-written code by reference. To access the pre-written classes, programmers use the API for the class library — the naming and calling conventions prescribed by the "declarations" (discussed below) for the classes and their associated methods, fields, and interfaces.
what kinds of inputs (or "arguments") they take, and what kinds of outputs they return. The district court found that "the rules of Java dictate" the precise form of class and method names and declarations and that "there is no bright line between the language and the API."
For example, the fully qualified name of the Java API method that finds the larger of two numbers is java.lang.Math.max(), which refers to the "max" method in the "Math" class of the "java.lang" package. A proper Java implementation must implement the “max” method using its fully qualified name—exactly. If an implementation altered the fully qualified class and method names, source code that conforms to JPL rules would not compile, and the result would be the opposite of “write once, run anywhere.” Thus, as the district court concluded, these names function as a command structure for Java packages and their subparts.
A proper Java implementation also must follow a specific format for the “declarations” (also known as “signatures” and “headers”) that introduce and identify particular packages, classes, or methods.
protection to the work’s functional elements.
Sections 102(a) and (b) of the Copyright Act prescribe a two-stage copyrightability analysis.
First, the work must meet the test for copyright eligibility under section 102(a), which states that “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression” and extends to “literary works” (including software). Section 102(a) sets a low threshold for copyright eligibility: It requires “originality” only in the limited sense that the work was not copied from an earlier work and possesses a minimal degree of creativity. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991). The district court found, and Google does not contest, that the 37 packages’ SSO met this low threshold.
Thus, under section 102(b), “the mere fact that a work is copyrighted does not mean that every element of the work may be protected.” Feist, 499 U.S. at 348. Rather, “[o]nce a work qualifies for copyright protection under § 102(a), § 102(b) informs its author and the rest of the world about certain aspects of the work that are not within the scope of copyright protection.” Pamela Samuelson, Why Copyright Law Excludes Systems and Processes from the Scope of Its Protection, 85 TEX. L. REV. 1921, 1921 (2007) [hereinafter Why Copyright].
Judge Alsup found that Java’s class and method names and declarations must be expressed precisely, with no variation, to achieve interoperability with applications using the JPL and the APIs at issue.
(2) Non-literal elements that are not necessary to the program’s function. See Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 704-05 (2d Cir. 1992). By contrast, courts have identified many different functional aspects of software that may not be entitled to copyright protection when they are the subject of nonliteral copying.” 1 Ian C. Ballon, E-COMMERCE AND INTERNET LAW § 4.07 (2012-2013 update) (collecting examples).
That's the pivot on which this appeal turns, in my view, whether the appeals court agrees with Judge Alsup that the Java APIs are so functional that they deserve no copyright protection at all. If you recall, Judge Alsup didn't say that *no* APIs could ever be copyrighted; he said the Java APIs couldn't be, because they failed the 102(b) filtration. If you wondered why some APIs could be copyrightable and some not, this is the answer.
In late 2005, Google and Sun began discussing the idea of Google’s taking a license to use and adapt the entire Java platform for smartphones. They also discussed a possible partnership under which Java technology would become an open-source part of the Android platform, adapted for smartphones. Google and Sun negotiated over several months, but were unable to reach a deal. At no time during those discussions did Sun talk about its Java copyrights.
After the Sun talks failed, Google continued with its ongoing independent implementation of the Java API packages needed for the Android platform. Sun knew that Google was developing Android using Java.
Sun not only knew -- it made public comments in support.
of California in case no. 10-CV-3561, Judge William H. Alsup.
Counsel for Defendant-Cross-Appellant Google Inc.
The Java Application Programming Interface ("API") is not a work of imaginative fiction. It is a command structure that programmers writing in the Java Programming Language must use to access the functionality of pre-written software in the Java class libraries. The Java API enables programmers to incorporate commonly used functionality into their programs without writing their own "implementations" — the source code that makes that functionality work on the computer. The API's commands are arranged hierarchically into packages, classes, and methods to make them convenient for programmers to find and use.
on." Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). Therefore, if a work is "largely functional," like software, "it receives only weak protection. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." Id. (citation and quotation marks omitted).
filters out and denies protection to elements within that program that are "dictated by the function to be performed, . . . or by external factors such as compatibility requirements and industry demands." Sega, 977 F.2d at 1524; Sony Computer Ent'mt, Inc. v. Connectix Corp., 203 F.3d 596, 603 (9th Cir. 2000). And an important First Circuit case likewise held that a program's hierarchically arranged command structure is an uncopyrightable "method of operation" under section 102(b), if it is essential to accessing, controlling, or using the program. See Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 815-18 (1st Cir. 1995), aff'd by an equally divided court, 516 U.S. 233 (1996).
1. Based on an extensive trial record, the district court found as a factual matter that the command structure of 37 Java API packages is functionally necessary (1) to achieve compatibility with programs written in the Java Programming Language and (2) to access, control, and use the Java class libraries. The district court also found that the command structure is composed of short names and phrases. Those findings, viewed in light of the Ninth Circuit's Sega and Sony decisions and the First Circuit's Lotus decision, compelled the conclusion that section 102(b) excludes the command structure from copyright protection. Were those findings clearly erroneous?
2. The district court gave the jurors instructions and a verdict form that barred them from considering whether Google had infringed 7,000 lines of nonimplementing code, independent of their SSO. Oracle did not object to the instructions or verdict form, either below or in its opening appellate brief. Can Oracle nevertheless assert that the district court's failure to find the 7,000 lines independently copyrightable provides an alternative ground for reversal?
3. If the judgment is reversed and remanded, should Google be denied the right to try to the jury a fair-use defense that nine jurors found persuasive at the first trial and that would succeed on retrial if the new jury made some of the same factual findings found in the district court's copyrightability order?
Was Google's use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?
Microsoft's monopoly by fostering a global "Java Community."
Sun Microsystems, with other companies, developed the Java Programming Language ("JPL") and platform in the 1990s in an effort to bypass Microsoft's Windows-based monopoly.16 Former Sun CEO Jonathan Schwartz explained that Sun's goal was to create a platform that would enable programmers to "'write once, run anywhere,' as opposed to 'write once, and write a check to Microsoft to run it.'"17 Sun worked with other companies to create "the Java Community,"
3. The Java class libraries and the Java API.
Sun’s ever having mentioned its copyrights.
C. Google develops the Android smartphone platform.
D. Sun welcomes Android with open arms.
E. Oracle acquires Sun and then sues Google.
necessary expertise and dropped the project.107 Oracle also tried to partner with Google by offering its own virtual machine for use in Android.108 Finally, after failing to build or partner with a smartphone platform, Oracle resorted to litigation threats.109 But Oracle never mentioned the SSO of the 37 packages, let alone asserted any copyright in the SSO, prior to suing Google. Oracle filed this lawsuit against Google in August 2010, alleging counts for patent and copyright infringement. Oracle claimed that it had suffered as much as $6.1 billion in patent damages;110 but a series of adverse Daubert rulings eliminated the expert testimony for the vast bulk of that claim.111 Only then did the copyright tail begin to wag the patent dog.
API elements are not copyrightable.
infringement, from which no appeal was taken. Due to a combination of verdicts and stipulations, the third phase never occurred.
1. The jury verdict and post-trial rulings.
After trial, the district court denied Oracle’s JMOL motion that Google’s fair-use defense be rejected as a matter of law.117 Oracle appeals from that ruling.
The court granted another Oracle JMOL motion, overturning the jury’s finding that Google had not infringed the eight decompiled files and holding that no reasonable jury could have found the copying de minimis.118 Google cross-appeals from that ruling.
The district court later denied Oracle’s JMOL/new-trial motion on issues of patent and copyright infringement.120 Oracle appeals from the copyright aspect of that order.
After entering judgment, the district court denied Google’s JMOL motion asking the court to rule that Google’s copying of the rangeCheck method was de minimis when compared to the relevant work as a whole.121 From that ruling, Google filed a separate appeal, now consolidated with the main appeal.
body of existing programs written in the JPL. To achieve interoperability with those programs, Google had to provide the same java.package.Class.method() command system in Android, using the same names, the same “taxonomy,” and the same functional specifications.124 But Google only replicated what was necessary to achieve a degree of interoperability with existing Java programs, taking care to provide its own implementation of the Java methods and packages.125 Thus, the API elements that Google used were functional compatibility elements excluded from copyright protection by section 102(b).
carry out pre-assigned functions.127 Thus, the API elements that Google used were a system or method of operation excluded from copyright protection by section 102(b).
The court cautioned that its Order was limited to “the specific facts of this case” and “the particular elements replicated by Google.”128 IV. SUMMARY OF ARGUMENT The district court committed no clear error in finding that the command structure of 37 Java API packages is functionally necessary (1) to achieve compatibility with programs written in the Java Programming Language and (2) to access, control, and use the Java class libraries. The district court also correctly found that the command structure is composed of short names and phrases. Those findings, viewed in light of the Ninth Circuit’s Sega and Sony decisions and the First Circuit’s Lotus decision, compelled the conclusion that section 102(b) excludes the command structure from copyright protection. The judgment should be affirmed.
The Introduction (Part I, above) summarizes the Argument in more detail.
This Court applies copyright law as interpreted by the regional circuits—in this case, the Ninth Circuit. See Amini Innovation Corp. v. Anthony Cal., Inc., 439 F.3d 1365, 1368 (Fed. Cir. 2006). If the appeal raises any issues not yet resolved by the Ninth Circuit, this Court predicts how that Circuit would decide them. See Litecubes, LLC v. N. Light Prods., Inc., 523 F.2d 1353, 1371 (Fed. Cir. 2008).
This Court also applies the regional circuit’s standard of review. See Atari Games Corp. v. Nintendo of Am. Inc., 975 F.3d 832, 837 (Fed Cir. 1992); Amini Innovation, 439 F.3d at 1368. In an appeal from a bench trial, the Ninth Circuit applies “clear error” review to factual findings, whether based on oral or documentary evidence. Saltarelli v. Bob Baker Group Med. Trust, 35 F.3d 382, 384 (9th Cir. 1994); see also FED. R. CIV. P. 52(a)(6). “The question whether a product feature is functional” and thus uncopyrightable under section 102(b) “is a question of fact” reviewed for clear error, while “[d]etermination of the correct legal standard to apply in evaluating functionality . . . is a question of law” reviewed de novo. Sega, 977 F.2d at 1530-31; see also Atari, 975 F.2d at 840.
Two controlling Ninth Circuit precedents -- Sega129 and Sony130 -- hold that section 102(b) filters out and denies protection to computer-program elements that must be copied to achieve interoperability with that program. As applied to the district court’s unchallenged factual findings, those cases compel the conclusion that copyright law does not protect the SSO of the 37 packages. Sega and Sony also dispose of Oracle’s six main appellate arguments.
district court found, and Google does not contest, that the 37 packages’ SSO met this low threshold.
Oracle’s appellate arguments relate almost entirely to the first stage of the copyrightability inquiry (originality under section 102(a)); but Sega, Sony, and the Order focus on the second stage (section 102(b) filtration). The district court held that the SSO of the 37 packages could not survive that second stage and therefore was unprotected. As discussed below, the governing precedents compelled that conclusion.
protected, if at all, by patent law.
Section 102(b) codifies the Supreme Court’s landmark holding in Baker v. Selden, 101 U.S. 99 (1879). Baker held that extending copyright protection from a writing that explained a new bookkeeping system to the bookkeeping system itself would circumvent the demanding requirements for obtaining patent protection and thereby work “a surprise and a fraud upon the public.” Id. at 102.
Selden sued Baker for publishing account books employing a similar plan. Selden asserted that no one could practice his system without using the forms in his copyrighted books, or substantially similar ones. Id. at 101. The district court agreed and enjoined Baker from publishing or selling his book. Id. at 100, 107; Baker Story at 166.
The Supreme Court reversed, drawing “a clear distinction between the book, as such, and the [practical] art which it is intended to illustrate.” Id. at 102. Selden’s book had obtained copyright protection “without regard to the novelty, or want of novelty, of its subject matter”; but granting him, in addition, “an exclusive property in the art described therein, when no examination of its novelty ha[d] ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright.” Id. (emphasis added).
operation, even when they are embodied in copyrighted works.” Why Copyright at 1935. Had Selden’s copyright claim succeeded, “Baker and his fellow bookkeepers would have been precluded from engaging in the kind of incremental innovation characteristic of practical fields such as bookkeeping,” and Baker’s customers would have had to pay “substantially higher fees to use a Selden-like system or [else] refrain from using a more efficient system to keep their accounts and balance their books.” Id. at 1934.
Baker and its progeny thus “constitute the principal case law foundations for the system, method, and process exclusions embedded in § 102(b).” Id. at 1923.133 Those exclusions describe subject matter that is beyond copyright’s scope and is “more appropriately protected, if at all, by the patent system.” Id. at 1952.
the legitimate purpose of accessing functional elements that were excluded from copyright protection under section 102(b).
a. The facts and holding in Sega.
In Sega, plaintiff Sega manufactured the “Genesis” game console as well as Genesis-compatible game cartridges. Functional program elements necessary to achieve compatibility were hidden within each game cartridge (unlike here, where they were published and supposedly free for anyone to use). 977 F.2d at 1514.
that restricted compatibility between the console and the cartridges. 977 F.2d at 1515. Accolade then wrote a development manual containing “functional descriptions of the interface requirements,” but none of Sega’s code. Using that manual, Accolade created its own Genesis-compatible game cartridges. Id. at 1514-15. Accolade’s end product—the cartridges—contained code implementing the Genesis interface specifications, but no other Sega code. Id. at 1515.
Sega then released a new Genesis III console featuring a more sophisticated “trademark security system” (“TMSS”) hidden inside the platform. Accolade responded by decompiling a Genesis III-compatible game to discover the TMSS initialization code. Id. at 1515. Accolade added that code segment to its development manual in the form of a standard header file to be used in all games. Again, the code in the Accolade header file was the only portion of Sega’s code that Accolade copied into its own game programs. Id. at 1515-16.
b. The facts and holding in Sony.
The facts and result in Sony were similar. Plaintiff Sony made and sold the PlayStation game console and owned the copyright on the console’s basic input- output system (“BIOS”)—the built-in “firmware” that operated the console. 203 F.3d at 598-99. Sony sold PlayStation games on CDs that users loaded into the top of the console. Id. at 599.
PlayStation’s “system interface procedures”—the signals sent between the BIOS and the Mac-based hardware emulator that Connectix was developing. Id. at 600. Connectix also copied the PlayStation BIOS to obtain CD-ROM code for a Windows version of the emulator. Id. at 601. Connectix’s product, called Virtual Game Station (“VGS”), reimplemented 137 of the Playstation BIOS’s 242 functions135 but did not contain Sony’s copyrighted code. Id. at 604 n.7, 606-07.
A district court preliminarily enjoined Connectix. Relying on Sega, the Ninth Circuit reversed. The appeals court defined the issue as being the same one posed in Sega: “to apply the principles of copyright law to computers and their software, to determine what must be protected as expression and what must be made accessible to the public as function.” Id. at 598.
In answering that question, the Sony court distinguished between copyright eligibility under section 102(a) and the copyright exclusions of section 102(b): “The object code of a program may be copyrighted as expression, 17 U.S.C. § 102(a), but it also contains ideas and performs functions that are not entitled to protection. See 17 U.S.C. § 102(b).” Sony, 203 F.3d at 602.
Act protects expression only, not ideas or the functional aspects of a software program.” Id. at 603. The court concluded that the intermediate copying necessary to reverse-engineer the Sony BIOS was “fair use for the purpose of gaining access to the unprotected elements of Sony’s software.” Id. at 602.
Echoing Baker, the court added: “If Sony wishes to obtain a lawful monopoly on the concepts in its software, it must satisfy the more stringent standards of the patent laws.” Sony, 203 F.3d at 605.
court and reject Oracle’s SSO-infringement claim.
to the “overall SSO” of the 37 packages—i.e., their class-and-package structure. As Oracle itself admits,137 Java’s fully qualified method names do not merely reflect or reveal the hierarchical organization of the Java class libraries—they dictate and determine that organization.138 Thus, there is effectively no “daylight” between the unprotected class and method names and the “overall SSO” that Oracle seeks to protect—no additional structure that is not already implicit in the names. Indeed, the “overall SSO” is, if anything, one step further removed from copyrightable expression because it is even more of an abstract “idea” or “concept” than the names themselves.
programs. See Sega, 977 F.2d at 1514, 1520, 1525, 1526; Sony, 203 F.3d at 602, 603.
5. Sega and Sony dispose of Oracle’s key arguments.
Sega and Sony also compel rejection of the six main arguments that Oracle and its amici proffer on appeal.
section 102(b) filtration process is wrong.
performed” or must be copied to meet “compatibility requirements” or “industry standards.” Sega, 977 F.2d at 1524.
instructions and arranged them in a unique sequence to create a purely arbitrary data stream” so that there were “a multitude of different ways to generate a data stream which unlock[ed]” the console. 975 F.2d at 840.
essential for invoking the functions of the 37 packages and for achieving interoperability. Oracle demonstrates no clear error in those findings.
b. Oracle’s “creativity” argument is wrong.
Oracle and its amici miss the point when they harp on the theme that writing a Java API package is creative and challenging.142 Originality and creativity are relevant primarily to the threshold section 102(a) copyright-eligibility inquiry, not to the section 102(b) filtration stage that concerned the district court here.
Under Sega and Sony, once a program element is found to be necessary for compatibility, section 102(b) takes over and the focus shifts from originality to functionality. Indeed, both cases denied copyright protection to functional elements that were original, complex, and creative. In Sony, the inter- and intra-chip signals sent and received by the Sony BIOS were both complex and integral to the working of the PlayStation platform—not just simple, numerical compatibility codes or “trivial communication protocols.”143 Yet those signals went unprotected.
Likewise, the TMSS code in Sega was not just a simple system for restricting compatibility; it also doubled as a clever device for imposing trademark and unfair-competition liability on anyone who managed to achieve compatibility through reverse engineering. See Sega, 977 F.2d at 1515. Despite this ingenious dual function, however, the Ninth Circuit held that the TMSS code was unprotected by copyright because it was required for compatibility. Nor did it matter that Sega had invested “considerable time, effort, and money” in developing its product, for the Supreme Court had “unequivocally rejected the ‘sweat of the brow’ rationale for copyright protection.” Id. at 1527 (quoting Feist, 499 U.S. at 359-60).
Thus, the fact that designing the Java API was creative and “labor-intensive” is irrelevant to whether the SSO of the 37 packages is necessary for compatibility and thus uncopyrightable under section 102(b).
c. Oracle’s merger arguments are wrong.
Oracle argues that the district court erred in applying an “ex post” merger analysis that examined the expressive choices available to the alleged infringer (Google) when it created the allegedly infringing work (Android). Instead, argues Oracle, the court should have applied an “ex ante” merger analysis that considers only the expressive choices available to the plaintiff/author (Sun) when it created the allegedly infringed work (Java). Under that view, no merger occurred because Sun exercised creativity in choosing from among a multitude of ways that it could have organized the Java API.
copyright exclusions. When applying section 102(a), the issue is whether the allegedly infringed work is sufficiently original to be eligible for copyright protection. In that context, it may make sense to look at the options available to the author when she created the work (ex ante).
But when applying section 102(b), the issue (under Sega and Sony) is whether some aspect of the work has become an industry standard or is necessary for compatibility. In that context, it only makes sense to look at the options available to the alleged infringer (ex post).
compatible game cartridges. Id. at 1524 n.7. Ex ante, of course, plaintiff Sega had chosen from among a “multitude of different ways” to unlock its console; but Sega’s ability to make original and creative choices ex ante did not render the choices that it made copyrightable.
Thus, Sega demonstrates that, “in the Ninth Circuit, . . . it is the range of expressive choice that existed at the time the competing product was created -- not the range of expression that existed at the time the copyrighted work was created -- that controls” the merger analysis. 1 Paul Goldstein, GOLDSTEIN ON COPYRIGHT § 2.3.2 & n.46, at 2:39-2:40 (3d ed. 2013) [hereinafter GOLDSTEIN] (emphases added); cf. Lotus, 49 F.3d at 816 (holding that “[t]he fact that Lotus developers could have designed the Lotus menu command hierarchy differently” was “immaterial” under section 102(b)).
One amicus objects, however, that the Ninth Circuit’s ex post view of merger could result in a program element losing copyright protection over time as it becomes an industry standard with which programmers seek to achieve compatibility.146 At most, this would occur on the level of individual compatibility elements, not entire programs, because that’s how section 102(b) works. Moreover, the argument fails for two reasons.
First, Sega’s ex post analysis cites not only “industry demands” but also “compatibility requirements” as constraints on the defendant’s choices. A compatibility requirement restricts choice just as much on the program’s release date as it does a decade later, and is therefore uncopyrightable from the start under Sega.
1 GOLDSTEIN § 2.3.2 at 2:41-2:42 (footnote omitted). Likewise, the scènes à faire doctrine—which was “originally developed to recognize that certain plot structures are to be expected from works exploring certain literary or dramatic themes”—has been “adapted, especially in the software copyright case law, to recognize that expressive choices of subsequent authors may become constrained over time by the emergence of industry standards.” Pamela Samuelson, Questioning Copyrights in Standards, 48 B.C. L. REV. 193, 215 (2007) (footnote omitted) (emphasis added). This loss of protection for works that become industry standards reflects the fact that, “over time,” a work’s “importance may come to reside more in the investment that has been made by users in learning” and using it. Lotus, 49 F.3d at 819-20 (Boudin, J., concurring) (emphasis in original).
e. Oracle’s “fragmentation” arguments are wrong.
In any event, Oracle’s fragmentation arguments are an irrelevant and hypocritical diversion. No statute or case law prohibits fragmenting. Oracle claims that its Java Specification License imposes anti-fragmentation obligations contractually; but the district court recognized that that argument “begs the question whether or not a license was required in the first place to replicate some or all of the command structure.”153 The answer is “no,” because Google had no obligation to license a command structure that lacked intellectual-property protection.
make money.”155 Java’s self-fragmentation made the platform “ever less stable,” leading some Sun employees to propose a “OneJava” project aimed at “[c]ommonizing Java for Java ME and SE and EE.”156 But Sun never pursued OneJava.157 Under Oracle’s “all-or-nothing” criterion for interoperability, therefore, Java isn’t even “interoperable” with itself.
f. Oracle’s “commercial expediency” argument is wrong.
Oracle and its amici also contend that Google focused on commercial expediency rather than technical interoperability. In other words, Google was just trying to make Android more attractive to programmers who know the Java API conventions. But it is both lawful and desirable to adopt an industry standard that allows programmers to express themselves using familiar methods and interfaces and to reuse code that is “clearly [their] own work product” on multiple platforms. Lotus, 49 F.3d at 818. Indeed, the district court found that using the Java API method names, declarations, and SSO gave Android “a degree of interoperability” with existing Java programs that used the same names, declarations, and SSO.158 Oracle demonstrates no clear error in that finding.
Oracle’s “commercial expediency” argument also fails in light of the facts in Sega and Sony. In those cases, defendants Accolade and Connectix surely were motivated by commercial expediency when they sought to achieve interoperability with platforms that gamers around the world already knew and loved. But the Ninth Circuit still held that the platforms’ functional compatibility elements were unprotected. The same approach applies here. “[I]ndustry programming practices” constrain developers’ expressive choices just as much as technical compatibility. Gates Rubber, 9 F.3d at 838. The question is “not whether any alternatives theoretically exist; it is whether other options practically exist under the circumstances” and are “feasible within real-world constraints.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522, 536 (6th Cir. 2004). Programmer expectations and capabilities are real-world feasibility constraints; and courts likewise acknowledge that program elements are dictated by external factors if selected in response to “customer demand.” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1375 (10th Cir. 1997).
applications more quickly and efficiently—an inherently functional objective that denotes a lack of copyrightability under section 102(b). Cf. Apple Computer, Inc. v. Microsoft Corp., 799 F. Supp. 1006, 1023 (N.D. Cal. 1992) (finding Apple’s user interface uncopyrightable because its “collection of visual displays and user commands” was “designed to render use of the computer . . . more ‘utilitarian’”), clarified, 27 U.S.P.Q.2d 1081 (N.D. Cal. Apr. 14, 1993), aff’d, 35 F.3d 1435 (9th Cir. 1994).
The district court held that the SSO of the 37 packages was a “command structure”—Oracle CEO Larry Ellison’s phrase159 —- that functioned as an uncopyrightable “system” or “method of operation” under section 102(b). As discussed below, that holding finds direct support in Lotus, 49 F.3d 807, which likewise held that a spreadsheet program’s “menu command hierarchy” was a “method of operation” excluded from copyright protection under section 102(b).
controlled the program via a series of menu commands, such as “Copy,” “Print,” and “Quit,” which they selected either by highlighting them on the screen or by typing their first letter. Lotus 1-2-3 had 469 commands arranged into more than 50 menus and submenus. Id. The program also allowed users to write customized “macros” that enabled them to execute a series of commands automatically by typing in a single pre-programmed macro keystroke. Macros shortened the time needed to set up and operate the program. Id. at 809-10. In the business world, a macro could have thousands of steps and represent a significant investment by the user. INTERFACES at 26.
Defendant Borland released its competing “Quattro” spreadsheet program after three years of development. Quattro included a “Lotus Emulation Interface” that allowed users to control the program through a virtually identical copy of the entire Lotus 1-2-3 menu tree, as an alternative to using Quattro’s own command system. But Borland didn’t copy Lotus’s underlying computer code; it copied only the words and structure of Lotus’s menu command hierarchy so that spreadsheet users familiar with Lotus 1-2-3 could switch to Borland’s programs without learning new commands or rewriting their Lotus macros. Id. at 810.
file included a virtually identical copy of the Lotus menu tree structure, but used only the first letters of Lotus command terms. Id. at 812.
The district court found that the Lotus Emulation Interface and the Key Reader infringed Lotus’s copyrights, and it permanently enjoined Borland. Id. But the Court of Appeals reversed on the ground that the Lotus menu command hierarchy was a “method of operation” excluded from copyright protection under section 102(b).
The appeals court explained that the term “method of operation” refers to “the means by which a person operates something, whether it be a car, a food processor, or a computer.” 49 F.3d at 815. “If specific words are essential to operating something, then they are part of a ‘method of operation’ and, as such, are unprotectable.” Id. at 816. The Lotus menu command hierarchy met that definition because it “provid[ed] the means by which users control and operate Lotus 1-2-3 . . . . Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3’s functional capabilities.” Id. at 815.
have designed the menu command hierarchy differently was “immaterial,” because “the ‘expressive’ choices of what to name the command terms and how to arrange them [did] not magically change the uncopyrightable menu command hierarchy into copyrightable subject matter.” 49 F.3d at 816; see also Apple, 799 F. Supp. at 1023.
Equally central to Lotus was the fact that “users employ[ed] the Lotus menu command hierarchy in writing macros.” 49 F.3d at 818. This fact confirmed that the menu command hierarchy was a method of operation, because users employed it to write macros that “perform[ed] an operation automatically.” Id.
The appellate court’s reversal of the injunction in Lotus “lifted the cloud of uncertainty that had been hanging over developers of interoperable software products and their many customers.” INTERFACES at 36. Like the Ninth Circuit in Sega and Sony, the First Circuit “ruled unambiguously that program elements necessary to achieve interoperability—to attach as well as to compete—were, by definition, methods of operation not protected by copyright.” Id. at 36-37.
Lotus’s reasoning affirms that the SSO of the 37 packages is an uncopyrightable method of operation under section 102(b).
These findings align perfectly with Lotus’s holding that a program element is an uncopyrightable “method of operation” if it is essential to accessing, controlling, or using the program. Here, the relevant “user” is the programmer who uses the JPL to write new applications. For that user, the Java class and method names, declarations, and command structure (or SSO) are essential to accessing, controlling, and using the Java API packages. Accordingly, those elements constitute an uncopyrightable “method of operating” the Java class libraries.
copyrightable.” 49 F.3d at 818.
Lotus fully supports the district court’s ruling—which is why Oracle and its amici mount a series of misguided attacks on it.
3. Oracle fails to distinguish or discredit Lotus.
Lotus’s “method of operation” definition. Indeed, the decision states that the screen displays (apart from the command structure) as well as the code implementing the Lotus Emulation Interface and the Key Reader still could receive copyright protection. 49 F.3d at 815-16. Thus, applying the Lotus “method of operation” definition to computer programs will not strip all programs of copyright protection as Oracle predicts—indeed, it didn’t even strip protection from most elements of Lotus 1-2-3.
Oracle infers from the fact that the Supreme Court affirmed Lotus without opinion by a 4-4 vote in 1996 that Lotus is doomed to eventual overruling. But Oracle can only speculate why a Supreme Court with three different members voted as it did 17 years ago, or how the current Supreme Court would vote now in a hypothetical case presenting the exact same facts. If anything, “the flow of the [Lotus] oral argument suggests that none of the justices was troubled by the First Circuit’s refusal to extend copyright protection to program elements necessary for software interoperability.” INTERFACES at 36.
filtration-comparison method” over Lotus’s “method of operation” approach (id. at 1371-72), it declined to apply the preferred method because it was needlessly complex for the case at hand. Id. at 1373. If anything, Mitel shows that courts have “selected different legal theories” to reach the common conclusion that “developers should be permitted to make copies of . . . programs to the extent necessary to achieve interoperability.” INTERFACES at 50.
based on the copyrightability of 7,000 lines of non-implementing code.
Oracle is wrong for two reasons.
Second, both here and below, Oracle did not challenge jury instructions and a verdict form that barred the jury from considering whether the 7,000 lines were infringed on a “standalone” basis. Accordingly, that theory is not in the case, any argument on Oracle’s “7,000-lines theory” is waived, and any alleged error in rejecting that theory would be harmless.
Oracle waived any challenge to this aspect of the instructions and verdict form by failing to object below173 or to brief the issue here. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Yet Oracle now claims that its 7,000-lines theory forms an independent basis for reversal.
Not so. A reversal based on copyrightability of the 7,000 lines viewed apart from SSO could not alter the judgment because it would not relate to the jury’s verdict that the SSO was infringed. The claimed error is therefore harmless, because it was “inconsequential to the ultimate . . . determination.” Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (citation omitted); see 28 U.S.C. § 2111. The 7,000-lines theory also is waived due to Oracle’s failure to object to instructions and a verdict form that effectively eliminated that theory from the case. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1110-11 (9th Cir. 2001).
Thus, Oracle does not get a second bite at the apple if its SSO claim fails.
E. Oracle’s challenge to the court’s words-and-short-phrases ruling fails.
Although the jury hung on Google’s fair-use defense, nine presumably reasonable jurors reportedly found that Google had proved that defense;176 and many of Judge Alsup’s copyrightability findings confirm that a new jury could reach a unanimous decision in Google’s favor on remand. Oracle’s argument that Google should be precluded from retrying that defense on remand is therefore a clear case of overreaching and should be rejected.
different character, altering the first with new expression, meaning, or message.’” Id. at 579 (citation omitted); see also Cariou v. Prince, No. 11-1197-CV, 2013 WL 1760521, at *5-6 (2d Cir. Apr. 25, 2013).
Android also is transformative because it incorporates the 37 packages into an entirely new smartphone platform that accommodates existing works while making new creative works possible. Indeed, the asserted copyright is in Java SE—which was designed for desktops, not mobile phones. Android has fostered a world of new smartphone applications. A defendant’s use of copyrighted material to create a new platform that is compatible with existing programs is “a legitimate one under the first factor of the fair use analysis.” Sony, 203 F.3d at 607. Here, as in Sega and Sony, Google’s use fosters the “dissemination of other creative works” through interoperability. Sega, 977 F.2d 1523.
Oracle and its amici argue that the fact that “Google considered, negotiated, and ultimately rejected” a partnership arrangement that might have included some form of IP license indicates bad faith and “weighs heavily” against a finding of fair use.180 But Campbell rejected the argument that the defendant’s request for permission to use the original “should be weighed against a finding of fair use,” noting that the request “may simply have been made in a good-faith effort to avoid this litigation.” 510 U.S. at 585 n.18. Sega likewise found Accolade’s use fair as a matter of law even though it, like Google, “explored the possibility of entering into a licensing agreement with Sega, but abandoned the effort because” it did not like Sega’s licensing terms. 977 F.2d at 1514.
Thus, a jury could find that the first statutory factor favors Google.
essential means of accomplishing a given task, their later use by another will not amount to infringement.’” Id. at 1524 (citation omitted).
Here, a jury could find—as the district court did—that the “command structure” of the 37 packages is the essential means for accomplishing interoperability with “third-party source code relying on [those] packages.”181 A jury also could find that the Java API is functional, and therefore entitled only to weak protection. Thus, a jury could find that the second factor favors Google.
interoperability—a small fraction of the overall code.
The third factor—the amount and substantiality of the use—asks whether the defendant used more of the copyrighted work than it needed to in light of “the purpose and character of the use.” Campbell, 510 U.S. at 586-87. “If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her.” Kelly v. Arriba Soft Corp., 336 F.3d 811, 820-21 (9th Cir. 2003).
Thus, a jury could find that the third factor favors Google.
The fourth factor—the use’s effect on the market for or value of the copyrighted work—also favors Google because a transformative work like Android is “less likely” to cause a substantially adverse impact on the original’s market than “a work that merely supplants or supersedes” the original. Sony, 203 F.3d at 607.
In any event, Sega defeats Oracle’s argument that Google’s use was unfair because it supposedly interfered with Oracle’s licensing opportunities. By “facilitating the entry of a new competitor, the first lawful one that is not a Sega licensee,” Accolade “undoubtedly ‘affected’ the market for Genesis-compatible games in an indirect fashion.” 977 F.2d at 1523. But the fourth statutory factor still favored Accolade, because a contrary holding would allow copyright holders “to monopolize the market by making it impossible for others to compete,” which “runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.” Id. at 1523-24.
Thus, a jury could find that the fourth factor favors Google.
(2) the issues are too intertwined to be decided by separate juries. See Witco Chem. Corp. v. Peachtree Doors, Inc., 787 F.2d 1545, 1549 (Fed. Cir. 1986).
Google concurs in the Jurisdictional Statement on pages 5-6 of Oracle’s Opening Brief. Google timely cross-appealed from a final order on October 4, 2012.189 The cross-appeal is proper because Google “seeks to enlarge its own rights under the judgment or to lessen the rights of its adversary under the judgment.” Aventis Pharma S.A. v. Hospira, Inc., 637 F.3d 1341, 1343 (Fed. Cir. 2011).
Google appeals from two erroneous decisions on the parties’ post-trial JMOL motions.
The district court erred in granting Oracle’s JMOL motion, thereby overruling the jury’s verdict that Google did not infringe Oracle’s copyright by duplicating eight “decompiled files”—a verdict supported by substantial evidence.
Arrays.java file of the Java 2 Standard Edition (“J2SE”) platform. The district court’s rulings on these two motions therefore should be reversed.
A. The “work as a whole” is the entire J2SE version 5.0 platform.
Accordingly, the jury should have been instructed to evaluate the alleged literal infringement of rangeCheck and the eight decompiled files in light of the fact that the entire J2SE platform is the copyrighted “work” at issue.
eight decompiled test files was de minimis.
The jury concluded that Google’s use of the eight decompiled files was de minimis and did not infringe any copyright. Although the district court found that those files were “minor items,” it erroneously granted Oracle’s JMOL on this issue and overturned the jury’s verdict.
“A jury’s verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). When ruling on a JMOL, a court should “disregard evidence favorable to the moving party that the jury is not required to believe.” Id. In this case, Oracle, as the accuser, bore the burden of proof at trial. See Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 723 (9th Cir. 1976).
For an “unauthorized use of copyright work to be actionable, the use must be significant enough to constitute infringement.” Newton v. Diamond, 388 F.3d 1189, 1192-93 (9th Cir. 2004). No legal consequences attach to the copying of a copyrighted work “unless the copying is substantial.” Id. at 1193.
“Substantiality is measured by considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.” Id. at 1195 (emphasis added). The copied portion of the copyrighted work is de minimis and not actionable unless it is qualitatively or quantitatively significant to the plaintiff’s work. See Newton, 388 F.3d at 1193; Ringgold v. Black Ent’mt Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997).
The jury had ample evidence that Oracle failed to prove that Google’s use of the eight decompiled files was significant enough to constitute infringement.
Second, Oracle offered no evidence of the eight files’ quantitative significance to the Java platform. The trial testimony revealed nothing about the size of the eight files or the number of lines of source code that comprise them; nor did Oracle offer any testimony as to how the size of those files compared to the Java platform as a whole.
Thus, the trial record substantially supports the jury’s verdict that Oracle failed to meet its burden as to Google’s use of the eight decompiled files. The district court erred in granting Oracle’s JMOL on this issue.
Google’s use of those nine lines was therefore de minimis and could not constitute copyright infringement. Accordingly, the district court should have granted Google’s JMOL on this issue.
The Court should affirm the copyrightability judgment while granting Google’s cross-appeal on two minor issues of literal infringement. However, if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google’s fair-use defense (as well as the inseparable issue of infringement).
3 The evidence was presented in the course of a parallel jury trial on copyright infringement.
8 See Parts V.B.1.-4. & V.B.5.a.-b., below.
9 See Part V.B.5.f., below.
10 See Part V.B.5.c., below.
11 See Parts V.B.5.d.-e., below.
12 See Oracle’s Opening Brief (“Br.”) 31-32.
13 See Part V.D., below.
14 See Cross-Appellant’s Brief, below.
15 See Part V.F., below. 16 A22132-33,22138-39.
24 A20475,8248(47:05-47:10), 21133, 21651, 22100, 22131-32, 22137.
30 A21946:2-5, 22326-45, 22272:24-22274:2, 22276:16-21, 21738-39.
31 A20463-64, 20737-38, 20530-31, 21400.
33 A4568-69, 3590, 20868, 21414.
37 Interfaces in this sense (which is distinct from “Application Program Interface,” discussed below) link methods of different classes. A22364, 22381-82, 20758-91, 21391-93, 21411.
39 A20753-54, 20455, 22348, 22136-37.
42 A3576-4104, 20939, 22134-36, 22326-45.
45 A20944; see also A4709.
47 A166, 20939-41, 20944-45. Some of the API packages at issue start with “javax” instead of “java.” A20785, 21152, 21176, 22536, 1971-72.
49 An “implementation” of an API method is the code that makes a computer actually execute the method. A22137-38, 22225-26,22362. It is the functionality that lies “on the other side” of the API and that is invoked by a programmer’s use of a proper method name. A21946:3-5.
50 A21472-75, 21960-62, 22359-61, 22362-63.
51 A21472-75, 21960-62, 22359, 22362-63.
53 A20955-67; see also A3666,3671,1968-70.
54 A20955-67; see also A3744,3816.
56 A21962, 22281, 22341, 21750.
64 A22266, 20853, 20877-78, 21678, 21720-21.
66 A3676-83; see also A4103 (including java.lang, java.io, java.util, and java.net among libraries that are “the foundation of the Java language” and “fundamental to every Java program”); A5875 (accusing java.lang, java.io, java.util, and java.net, among other packages and files in Android).
68 A20946; see also A21446.
77 Br.6, 16, 28. Cf. A22082-87, 22114, 8259-61 (Cizek depo 32:14-33:18), 21246-47.
79 A21272; cf. A22241 (patent infringement discussed in 2006).
94 See A142-4; see also Cross-Appellant’s Brief, below.
96 A21674-77, 21959-60, 21971-77, 21155-56, 21359-61, 21865-73.
100 A6541. The Open Handset Alliance is a group of cell-phone manufacturers, wireless carriers, and technology providers that support Android. A21768-69.
103 A21694-97, 8262, 22168-69, 21880-84, 21691, Trial Exhibit(“TX”)3103 (video).
113 A131. The parties also agreed that Judge Alsup could decide any subsidiary fact questions relating to his copyrightability determination. See A24602,24598-99.
123 “All declarative fact statements set forth in the order are factual findings.” A133n.3.
131 H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 56-57 (1976) (emphases added), reprinted in 1976 U.S.C.C.A.N 5659, 5670; S. Rep. No. 94-473, 94th Cong., 1st Sess. 54 (1975) (emphases added).
132 Pamela Samuelson, The Story of Baker v. Selden: Sharpening the Distinction Between Authorship and Invention, in INTELLECTUAL PROPERTY STORIES 159, 174- 175 (Jane C. Ginsburg & Rochelle Cooper Dreyfuss, eds., 2006) [hereinafter Baker Story].
133 See also Baker Story at 180.
134 By contrast, the allegedly copied elements of the program in Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173 (9th Cir. 1989)—cited by Oracle—were not “dictated” by anything as they were “customized to the needs of [each] purchaser.” Id. at 1176. Moreover, Johnson Controls parallels the Third Circuit’s approach in Whelan Associates v. Jaslow Dental Lab, 797 F.2d 1222 (3d Cir. 1986), which has been “widely—and soundly—criticized as simplistic and overbroad.” Sega, 977 F.2d at 1525-26; see also A156, 161, 169 (district court’s discussion of Johnson Controls).
136 The SSO of the 37 packages is limited to the functional requirements for compatibility, so there is no need to reach the fair-use question addressed in Sega and Sony.
137 See Br.39 (copied code “identifies, specifies, and defines the components and their arrangement within the packages”); id. at 45 (copied lines “embody the structure of each package”).
139 Compare Sega’s Opening Brief, 1992 WL 12011898 at 15-22, with Accolade’s Appellee’s Brief, 1992 WL 12011899 at 35-38.
140 Congress later reinforced that message by creating a safe harbor in the Digital Millenium Copyright Act for those who circumvent anti-copying technology to identify and analyze program elements “necessary to achieve interoperability . . . with other programs . . . .” § 1201(f).
141 In the software context, courts apply various versions of the “analytic dissection” method to filter out unprotectable program elements. But the method is complicated and courts only apply it to the extent that it is “helpful,” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994), recognizing that “[n]ot every case requires an extensive abstraction-filtration-comparison analysis.” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1372 (10th Cir. 1997). “It is essential that one keep in mind that the approaches adopted by the circuits merely are a means to a very important end: filtering out all unprotectable material.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1545 n.27 (11th Cir. 1996).
142 See Br.3 6, 12, 18, 30, 31-32.
145 Oracle and an amicus cite Practice Management Information Corp. v. AMA, 121 F.3d 516 (9th Cir. 1997), as authority that industry standards have no bearing on copyrightability. But that case held that a defendant could not engage in “wholesale copying” of a book describing a code system. Id. at 520 n.8. The book identified “more than six thousand medical procedures” and provided “a five-digit code and brief description for each.” Id. at 517 (emphasis added). Copying the entire book was as if Baker had copied the entire bookkeeping treatise in Baker v. Selden, including Selden’s copyright-protected explanatory essay. Here, by contrast, Google did not copy any explanatory work. See A42 (finding that Google did not copy Java documentation).
151 A167 (emphasis in original).
160 Judge Boudin’s concurrence also discussed “user lock-in,” observing that “[r]equests for the protection of computer menus present the concern with fencing off access to the commons in an acute form. . . . Better typewriter keyboard layouts may exist, but the familiar QWERTY keyboard dominates the market because that is what everyone has learned to use.” Lotus, 49 F.3d at 819-20 (Boudin, J., concurring).
164 Br.62, A136, 163, 165, 169.
170 A41(emphasis added). Although the definition of “compilable code” included “declarations,” A22770, the jurors were not asked to determine whether any declarations were literally infringed.
177 See § 107 (listing fair-use factors).
183 A136 (emphasis in original).
188 A24604-11. The district court did not reach this issue because the copyrightability determination rendered it moot.
193 Oracle cannot plausibly contend that the Arrays.java file, or any one of the eight decompiled files, constitutes the “essence” of the J2SE platform; indeed, it is not clear from the record what function any of these files performs. Cf. Hustler Magazine Inc. v. Moral Majority Inc., 796 F.2d 1148, 1154-55 (9th Cir. 1986). And Oracle introduced no evidence that these files can “stand totally alone” or that they are “stored separately” from the rest of the J2SE platform. Id.; see also Am. Geophysical Union v. Texaco Inc., 60 F. 3d 913, 926 (2d Cir. 1994).
195 A21490-92, 21502, 21982-84, 5875.