throbber

`
`No. 18-956
`================================================================================================================
`
`In The
`Supreme Court of the United States
`---------------------------------  ---------------------------------
`
`GOOGLE LLC,
`
`v.
`
`Petitioner,
`
`ORACLE AMERICA, INC.,
`Respondent.
`
`---------------------------------  ---------------------------------
`
`On Writ Of Certiorari To The
`United States Court Of Appeals
`For The Federal Circuit
`
`---------------------------------  ---------------------------------
`
`BRIEF OF AMICI CURIAE
`CENTER FOR DEMOCRACY AND TECHNOLOGY,
`INSTITUTE FOR INTELLECTUAL PROPERTY &
`SOCIAL JUSTICE, NATIONAL CONSUMERS LEAGUE,
`AND NATIONAL FEDERATION OF THE BLIND
`SUPPORTING PETITIONER
`
`---------------------------------  ---------------------------------
`
`LISA A. HAYES
`ROBERT S. ADAMS IV
`AVERY GARDINER
`CENTER FOR DEMOCRACY
` AND TECHNOLOGY
`1401 K Street NW
`Washington, DC 20005
`
`
`January 10, 2020
`
`JOSEPH C. GRATZ
` Counsel of Record
`MARK A. LEMLEY
`SAMUEL J. ZEITLIN
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`(415) 362-6666
`jgratz@durietangri.com
`Counsel for Amici Curiae
`
`================================================================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`

`

`i
`
`TABLE OF CONTENTS
`
`5
`
`Page
`TABLE OF CONTENTS ......................................
`i
`TABLE OF AUTHORITIES .................................
`iii
`INTEREST OF THE AMICI CURIAE .................
`1
`SUMMARY OF THE ARGUMENT .....................
`3
`ARGUMENT ........................................................
`5
` A. Granting copyright to interfaces would
`harm consumers by giving incumbents a
`veto over the creation of programs and de-
`vices we now take for granted ...................
`1. Copyrighted interfaces would restrict
`the creation of devices that work with
`products from many manufacturers .....
`2. Copyrighted interfaces would restrict
`the creation of third-party software or
`devices that enhance or customize prod-
`ucts consumers lawfully purchase ........
`3. Copyrighted interfaces would harm the
`market for inexpensive third-party re-
`placement parts .................................... 12
` B. Granting copyright to interfaces would
`harm consumers by raising the costs of
`learning new software ............................... 14
`1. Consistent software interfaces make it
`easier for consumers to learn new soft-
`ware ..................................................... 14
`
`6
`
`9
`
`

`

`ii
`
`TABLE OF CONTENTS—Continued
`
`Page
`2. Copyrighted interfaces would make it
`harder for consumers to switch prod-
`ucts and enable developers to raise
`prices ................................................... 17
`CONCLUSION ..................................................... 19
`
`
`

`

`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`Cases
`Baker v. Selden, 101 U.S. 99 (1879) ........................ 5, 19
`Chamberlain Grp., Inc. v. Skylink Techs., Inc.,
`381 F.3d 1178 (Fed. Cir. 2004) .................................. 7
`Eastman Kodak Co. v. Image Tech. Servs., Inc.,
`504 U.S. 451 (1992) ................................................. 18
`Impression Prods., Inc. v. Lexmark Int’l, Inc., 137
`S. Ct. 1523 (2017) .................................................... 12
`Lexmark Int’l, Inc. v. Static Control Components,
`Inc., 387 F.3d 522 (6th Cir. 2004) ............................ 13
`Lexmark Int’l, Inc. v. Static Control Components,
`Inc., 572 U.S. 118 (2014) .......................................... 12
`Lotus Development Corp. v. Borland Interna-
`tional, Inc., 49 F.3d 807 (1st Cir. 1995), aff’d by
`an equally divided court, 513 U.S. 233 (1996) ........ 16
`
`
`CONSTITUTIONAL PROVISION
`U.S. Const. art. I, § 8 ............................................ 13
`
`OTHER AUTHORITIES
`Anhong Guo et al., StateLens: A Reverse Engi-
`neering Solution for Making Existing Dy-
`namic Touchscreens Accessible, 2019 Proc.
`ACM Symposium on User Interface Software
`& Tech. 371 (2019), at https://arxiv.org/abs/
`1908.07144 ................................................................ 8
`
`

`

`iv
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Apple, Functions, https://www.apple.com/mac/
`numbers/compatibility/functions.html (last
`visited Jan. 7, 2020) ................................................ 15
`Chris Jay Hoofnagle et al., The Tethered Econ-
`omy, 87 Geo. Wash. L. Rev. 783 (2019) .................... 18
`Clark D. Asay, Software Copyright’s Anticom-
`mons, 66 Emory L.J. 265 (2017) ............................... 9
`Compatibility List for GE Universal Remote,
`https://perma.cc/KVC6-FR22 .................................... 8
`Google, Google Sheets function list, https://support.
`google.com/docs/table/25273?hl=en (last visited
`Jan. 7, 2020) ............................................................ 15
`Kate Linebaugh, Citizen Hackers Tinker With
`Medical Devices, Wall St. J. (Sept. 26, 2014),
`https://www.wsj.com/articles/citizen-hackers-
`concoct-upgrades-for-medical-devices-1411762843 ........ 10
`Larry Tesler et al., Gypsy: The Ginn Typescript
`System, http://www.bitsavers.org/pdf/xerox/alto/
`memos_1975/Gypsy_The_Ginn_Typescript_
`System_Apr75.pdf ............................................. 16, 17
`Larry Tesler, A Personal History of Modeless Text
`Editing and Cut/Copy-Paste, Interactions, July
`& Aug. 2012 ............................................................. 17
`Lotus Dev. Corp., @Functions and Macros Guide
`(1991) ....................................................................... 16
`
`
`
`
`

`

`v
`
`TABLE OF AUTHORITIES—Continued
`
`Page
`
`Microsoft Corp, Excel Functions (alphabetical),
`https://support.office.com/en-us/article/excel-
`functions-alphabetical-b3944572-255d-4efb-
`bb96-c6d90033e188 (last visited Jan. 7, 2020) ....... 15
`Nightscout, Welcome to Nightscout, http://www.
`nightscout.info/ (last visited Jan. 7, 2020) ............. 10
`Severin Borenstein et al., Antitrust Policy in
`Aftermarkets, 63 Antitrust L.J. 455 (1995) ............ 12
`
`

`

`1
`
`INTEREST OF THE AMICI CURIAE1
`The Center for Democracy & Technology (“CDT”)
`
`is a nonprofit public interest organization working to
`ensure that democracy and individual rights are at the
`center of the digital revolution, and that technology
`serves as an empowering force for people worldwide.
`
`CDT is committed to ensuring that the benefits of
`
`technology flow to consumers. Companies should not
`be allowed to stifle competition or restrict consumer
`enjoyment of technology through claims to ownership
`of software interfaces. Consumers benefit from devices
`that can be operated by universal controls, from being
`able to modify and customize devices they have pur-
`chased, and from learning universal commands that
`transcend platforms.
`
`●
`The Institute for Intellectual Property and Social
`
`Justice (“IIPSJ”) was established to promote social jus-
`tice in the field of intellectual property law and prac-
`tice, both domestically and globally. Through core
`principles of access, inclusion, and empowerment, in-
`tellectual property social justice advances the social
`
`
`1 Counsel for the parties have consented in writing to the fil-
`
`ing of this brief. No counsel for a party in this matter authored
`the brief in whole or in part, and no party other than amici, their
`members, or their counsel made a monetary contribution in-
`tended to fund the preparation or submission of the brief. Counsel
`for amici curiae was previously engaged to advise Google in con-
`nection with this matter earlier in its history, and represents
`Google in other matters, but Google has had no involvement with
`the preparation of this brief.
`
`

`

`2
`
`policy objectives that underlie intellectual property
`protection: the broadest stimulation of creative and in-
`novative endeavor and the widest dissemination of cre-
`ative works and innovative accomplishments for the
`greater societal good. IIPSJ proposes and supports
`new paradigms for the creation, management, and
`exploitation of knowledge resources, and works within
`a wide spectrum of IP stakeholders, including artists,
`inventors, and rights holders, legal scholars, practi-
`tioners, and policy makers, and IP entrepreneurs, pur-
`veyors, and end-users, to achieve these goals.
`
`IIPSJ has an interest in a well-functioning copy-
`
`right system that fosters expressive intellectual en-
`deavor toward the greater societal good and balances
`the interests of all stakeholders in the IP ecosystem
`toward this end. IIPSJ supports the arguments ad-
`vanced herein as promoting that balance in the devel-
`opment and use of copyrighted software, particularly
`with respect to the preservation of opportunities for
`intellectual property achievement on behalf of “sec-
`ond comer” innovators who lack access to the social
`resources typically essential to the development, pro-
`tection, and commercialization of first generation inno-
`vation.
`
`●
`The National Consumers League (“NCL”) is the
`
`nation’s oldest consumer organization, representing
`consumers and workers on marketplace and work-
`place issues since its founding in 1899 by two of the
`nation’s pioneering social reformers, Jane Addams and
`
`

`

`3
`
`Josephine Lowell. Its mission is to protect and promote
`social and economic justice for consumers and workers
`in the United States and abroad. To that end NCL pro-
`vides government, businesses, and other organizations
`with the consumer’s perspective on a wide range of
`important concerns including developments in tech-
`nology.
`
`●
`The National Federation of the Blind (“NFB”), the
`
`oldest and largest national organization of blind per-
`sons, is a nonprofit corporation headquartered in Bal-
`timore, Maryland. It has affiliates in all 50 states,
`Washington, D.C., and Puerto Rico. NFB and its affili-
`ates are recognized by the public, Congress, executive
`agencies of state and federal governments, and the
`courts as a collective and representative voice on be-
`half of blind Americans and their families. The ulti-
`mate purpose of NFB is the complete integration of the
`blind into society on a basis of equality. This objective
`includes the removal of legal, economic, and social dis-
`crimination. As part of its mission and to achieve these
`goals, NFB has worked actively to ensure that the
`blind have an equal opportunity to access the Internet
`and other emerging technology.
`
`---------------------------------  ---------------------------------
`
`SUMMARY OF THE ARGUMENT
`A software interface is the point of connection
`
`between a computer program and something else—
`another program or a human being. In order to be
`
`

`

`4
`
`understood by computers, the commands received
`across an interface must take a precise form, and the
`author of a piece of software dictates what that form
`will be.
`
`But that initial choice imposes restrictions on
`
`those who come after. Anyone using a computer sys-
`tem, either directly or through software of their own,
`must follow the rules of the interface.
`
`Consumers benefit from the freedom to use and re-
`
`use software interfaces, and they would pay the cost if
`that freedom were taken away. Most Americans do not
`write code or build electronics, but we cannot escape
`these things. Modern life all but requires buying,
`learning, and using (or struggling to use) an ever-grow-
`ing catalog of interconnected devices, apps, and pro-
`grams. Interfaces are the means by which we manage
`this chaos. If copyright law were expanded to protect
`interfaces, fragmentation, higher prices, and frustra-
`tion would result. Fewer programs and devices would
`be able to talk to each other. Many efforts to make tech-
`nology accessible to the blind would be thwarted.
`Standard interface design would become a rarity, mak-
`ing each new program more burdensome to learn and
`making each program its own separate silo. Ultimately,
`we would have less control over the things that we buy,
`because copyright would take on a new role in restrict-
`ing how we can use our property.
`
` Moreover, an extension of copyright to cover inter-
`faces would harm competition. It would give the origi-
`nators of important interfaces the power to prevent
`
`

`

`5
`
`consumers from using their products with third-party
`software and electronics, to restrict the use of third-
`party replacement parts, and to interfere with compet-
`itors seeking to innovate and bring better offerings to
`market. It would also turn the time and effort con-
`sumers have invested in getting familiar with those
`interfaces into a barrier that impedes users from de-
`camping for a competitor’s alternative system.
`
`The anticompetitive control that would result
`
`from expanding copyright protection to software inter-
`faces does not stem from an author’s right to control
`his or her creative expression. Instead, it would repre-
`sent the misuse of copyright to obtain a monopoly over
`that which could not have been patented—what this
`Court has called “a surprise and a fraud upon the pub-
`lic.” Baker v. Selden, 101 U.S. 99, 102 (1879). This out-
`come was contrary to the public interest in Baker, one
`hundred and forty years ago, and it remains so to this
`day.
`
`---------------------------------  ---------------------------------
`
`ARGUMENT
`A. Granting copyright to interfaces would
`harm consumers by giving incumbents a
`veto over the creation of programs and de-
`vices we now take for granted.
`As long as software interfaces have existed, they
`
`have been treated as free for all to use. For this reason,
`it is difficult to imagine the world Oracle asks this
`Court to create. The stakes for the parties in this
`
`

`

`6
`
`case—whether one Fortune 100 company should re-
`ceive a payment from another—obscure the impact
`that an expansion of copyright to software interfaces
`would have on everyday life. Our homes and offices are
`full of software and electronics that interact with each
`other through software interfaces, and those interac-
`tions across products make our lives easier. Many com-
`monplace products and services would be disrupted if
`those interfaces became subject to copyright.
`
`
`
`1. Copyrighted interfaces would restrict
`the creation of devices that work with
`products from many manufacturers.
`Perhaps the most obvious casualty of a ruling for
`
`Oracle in this case would be “universal” devices that
`can communicate with many models or brands of prod-
`ucts. Such devices need to be able to send (and in some
`cases receive) commands in the idiom of each product
`they are compatible with. If software interfaces are
`subject to copyright, then the more products a univer-
`sal device supports, the more copyrights it will in-
`fringe.
`
`Consider the universal television remote. A home
`
`entertainment system today can easily involve half a
`dozen devices all wired together: a television, a cable
`box, a DVD or Blu-Ray player, a video-streaming box
`like an Apple TV, a receiver, and a speaker system.
`Each component may come from a separate manufac-
`turer, and each has its own remote control. These re-
`motes communicate with their respective devices
`
`

`

`7
`
`through flashes of infrared light, the patterns of which
`form a hierarchy of commands: channel controls (up
`and down), volume controls (up and down), numbers
`(zero through nine), and so on. A universal remote is
`one that copies the command structure of many differ-
`ent devices and can deploy each system’s individual
`commands verbatim. If those interfaces are copyright-
`able, then a universal remote infringes the interface
`specifications of each device it is compatible with. A
`previous copyright challenge to similar remotes met
`with failure in the lower courts. See Chamberlain Grp.,
`Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1182 (Fed.
`Cir. 2004) (rejecting suit by garage-door manufacturer
`against maker of universal garage-door remote). Adop-
`tion of Oracle’s rule would resurrect such claims and
`effectively mandate the use of a separate remote con-
`trol for each device in one’s home.
`
`Technology that adapts devices for use by blind
`
`people likewise depends on the freedom to copy com-
`mands used by one system into another system. For
`example, many devices we encounter in public places
`have touchscreens—coffee machines, payment termi-
`nals, subway ticket machines, in-flight entertainment
`systems, and so on. Unless the manufacturer has
`adapted them for use by blind people, they can be dif-
`ficult or impossible for those people to use.
`
`But by copying the command hierarchies used by
`
`those machines, researchers at the Human-Computer
`Interaction Institute at Carnegie Mellon University
`were able to develop software that runs on a
`smartphone and allows blind people to interact with
`
`

`

`8
`
`touch-screen devices using an audio interface.2 The
`software uses the smartphone’s camera to observe the
`touchscreen and provide spoken guidance on how to
`navigate the command structure—for example, where
`to press to order a decaf cappuccino from an automated
`coffee machine. Critically, this software operates by
`storing copies of all of the command structures for all
`of the touch-screen machines it works with. If groups
`of commands were copyrightable, the development of
`important accessibility technology would be hindered.
`
`This problem cannot be solved by a market for li-
`
`censes. Although some manufacturers of universal pro-
`grams or devices may be able to license individual
`interfaces, the transaction costs involved in attempt-
`ing to license every product on the market would serve
`as a major barrier to entry.3
`
`Even if money were no object, there is no guaran-
`
`tee that licenses would be available. Many companies
`may simply refuse to come to the bargaining table with
`a universal-device manufacturer if they deem control
`
`
`2 Anhong Guo et al., StateLens: A Reverse Engineering Solu-
`
`tion for Making Existing Dynamic Touchscreens Accessible, 2019
`Proc. ACM Symposium on User Interface Software & Tech. 371
`(2019), at https://arxiv.org/abs/1908.07144.
`3 In the universal-TV-remote context, for example, one ten-
`
`dollar universal remote contains a full hierarchy of commands for
`more than 300 different brands of television. See Compatibility
`List for GE Universal Remote, https://perma.cc/KVC6-FR22. And
`in the accessibility context, the software is designed to learn by
`watching sighted volunteers use different interfaces, providing
`benefits over a system with a rigid, centralized set of licensed in-
`terfaces. Guo, supra, at 376.
`
`

`

`9
`
`over the device ecosystem to be in their economic in-
`terest. See Clark D. Asay, Software Copyright’s Anti-
`commons, 66 Emory L.J. 265, 290, 296–97 (2017). Such
`companies would be able to deploy a copyright in inter-
`faces to control the market for compatible products,
`even if it means fewer and worse options for consum-
`ers.
`
` Moreover, if a compatible product is successful, li-
`censing fees will only go up over time. If universal
`products do come to market in a world of copyrightable
`interfaces, it will be at a much greater cost—and those
`costs will inevitably be passed on to the consumer.
`
`
`
`2. Copyrighted interfaces would restrict
`the creation of third-party software or
`devices that enhance or customize
`products consumers lawfully purchase.
`A rule that software interfaces can be copyrighted
`
`would limit not only what products are created and
`produced, but also how consumers can use products af-
`ter purchasing them. In general, developers of success-
`ful electronics and software try to implement features
`sought after by large portions of their user base. But
`some groups of users inevitably find that their needs
`are not being met by existing products, at least not in
`a timely fashion. This gap is filled by third parties who
`write code that interacts with the original product and
`customizes its functions. If command structures were
`copyrightable, it would be copyright infringement to
`create software that communicates with a lawfully
`
`

`

`10
`
`purchased program or device on the device owner’s be-
`half because such communication requires copying
`commands verbatim.
`
`The specialized needs of consumers can be acute.
`
`For example, many people with diabetes use continu-
`ous glucose monitors to track their blood-glucose lev-
`els in real time and respond quickly to dangerous
`spikes or drops. But caregivers also need to be able to
`see those glucose levels, because a rapid change can
`cause a person with diabetes to pass out and need im-
`mediate assistance. This is especially important for
`the parents of diabetic children, but many continuous
`glucose monitors are not designed to transmit data to
`parents or other remote caregivers. As an FDA official
`observed, parents were “clearly crying out for ways to
`access their children’s devices in a way that [wasn’t]
`available.” Kate Linebaugh, Citizen Hackers Tinker
`With Medical Devices, Wall St. J. (Sept. 26, 2014),
`https://www.wsj.com/articles/citizen-hackers-concoct-
`upgrades-for-medical-devices-1411762843.
`
`The situation changed in 2014 when a group of
`
`parents decided to take matters into their own hands.
`They created the Nightscout Foundation, which pro-
`duces open-source software that interfaces with con-
`tinuous glucose monitors and allows their output to
`be viewed remotely. Id.; see Nightscout, Welcome to
`Nightscout, http://www.nightscout.info/ (last visited
`Jan. 7, 2020).
`
`Nightscout’s software works by sending commands
`
`to continuous glucose monitors according to the rules
`
`

`

`11
`
`of their interfaces and receiving data in return. The
`software is legal because the law treats interfaces as
`wholly functional and therefore uncopyrightable, ra-
`ther than as creative expression subject to copyright.
`This allows parents who lawfully purchase monitors to
`modify their property to help them protect their chil-
`dren.
`
`By contrast, if Nightscout had needed a license to
`
`even get started, the project may never have gotten off
`the ground. Licensing negotiations with risk-averse,
`profit-seeking corporations can create just as much of
`a barrier for nonprofits and enthusiasts as they do for
`new market entrants—more, even, because nonprofits
`and enthusiasts have nothing to offer interface owners
`in return. And without consumers to lead the way,
`manufacturers will lag even further behind in meeting
`users’ needs.
`
`is the hashtag
`Nightscout’s rallying cry
`
`#WeAreNotWaiting: the need for some functionality is
`so urgent that it spurs consumers to take matters into
`their own hands and build the features that technol-
`ogy companies do not. If use of the interfaces that con-
`nect those consumers to their devices were restricted
`by copyright, consumers would be once again at the
`mercy of device makers. The very progress of science
`and useful arts that copyright exists to promote would
`be held back.
`
`
`
`

`

`12
`
`3. Copyrighted interfaces would harm the
`market for inexpensive third-party re-
`placement parts.
`Every seller of a product with replaceable parts
`
`would prefer to be the only source of those parts, since
`a single source can charge higher prices. Consumers,
`on the other hand, are best served when they have the
`option to buy replacement parts from third-party com-
`petitors at a lower price. See Severin Borenstein et al.,
`Antitrust Policy in Aftermarkets, 63 Antitrust L.J. 455,
`471 (1995) (“Manufacturers may exclude aftermarket
`providers with lower costs, different service qualities,
`or different product variety to protect their profits, all
`of which create consumer harm.”). Granting copyright
`in interfaces would open up a new way to lock out com-
`petition for replaceable parts: place a microchip on the
`part and require the microchip to communicate with
`the main device through a copyrighted system of com-
`mands.
`
`Perhaps the plainest example of the mischief of
`
`this sort that would result from a ruling in favor of Or-
`acle comes from the printer business. This Court is al-
`ready familiar with printer manufacturer Lexmark
`International, Inc., as its long-running effort to make
`consumers pay extra for the right to refill their toner
`cartridges has brought it twice before this Court. See
`Lexmark Int’l, Inc. v. Static Control Components, Inc.,
`572 U.S. 118 (2014); Impression Prods., Inc. v. Lexmark
`Int’l, Inc., 137 S. Ct. 1523 (2017). In Impression Prod-
`ucts, the Court brought an end to Lexmark’s attempt
`to use patent law to prevent the sale of refurbished
`
`

`

`13
`
`printer cartridges. But Lexmark also tried to use copy-
`right law to accomplish the same purpose.
`
`Lexmark installed microchips in its toner car-
`
`tridges with software that speaks in the idiom of
`Lexmark-brand printers. When a competitor began
`equipping its own toner cartridges with software that
`could successfully speak in that idiom, Lexmark sued
`for copyright infringement. The Sixth Circuit held that
`Lexmark’s copyright claim was unlikely to succeed, be-
`cause the copying at issue was necessary for interoper-
`ability between printer and toner cartridge. Lexmark
`Int’l, Inc. v. Static Control Components, Inc., 387 F.3d
`522, 541 (6th Cir. 2004).
`
`If this Court authorizes copyright protection for
`
`interfaces, it will provide a roadmap for Lexmark to re-
`sume its campaign to own the market for replacement
`toner cartridges. Other industries will have every
`incentive to follow in Lexmark’s tracks. Batteries,
`chargers, even non-electronic parts like car tires—all
`of these could be monopolized by manufacturers of the
`devices that use them. Granting copyright protection
`to a printer’s software interface would not serve the
`purposes of copyright. Instead, it would simply hand
`an additional tool to those who seek to misuse the in-
`tellectual-property laws to impede competition in mar-
`kets that have nothing to do with expression found in
`the “Writings” of “Authors.” U.S. Const. art. I, § 8.
`
`
`
`

`

`14
`
`B. Granting copyright to interfaces would
`harm consumers by raising the costs of
`learning new software.
`Software interfaces control the interaction be-
`
`tween people and computers just as they control the
`interaction between computer systems. As a result,
`this case is not just about the availability of interoper-
`able software and electronics. It is also about whether
`consumers should be forced to learn a new interface
`every time they switch to a new software application.
`
`
`
`1. Consistent software interfaces make it
`easier for consumers to learn new soft-
`ware.
` Mastering a software interface, especially a so-
`phisticated one, can be a serious investment of time,
`dedication, and skill. This process only becomes more
`difficult as time goes on—and the number of programs
`to learn only seems to go up. Nor is the choice to learn
`new software always a voluntary one. Many jobs, even
`non-technical ones, require frequent or constant use of
`computers. Workers must keep their technology skills
`current in order to stay employed. But the burden of
`doing so would be greatly increased if copyright law re-
`quired each program to have a novel command struc-
`ture.
`
`The cost to consumers of learning new software is
`
`currently much lower than it might be because suc-
`cessful interfaces become industry standards. For ex-
`ample, Microsoft Excel has a library of methods called
`
`

`

`15
`
`“formulas” that let users manipulate the data in its
`spreadsheets. To sum the values of a group of cells, one
`can use the formula =sum(), with the group of cells
`identified within the parentheses. To identify the larg-
`est value of the group, the formula is =max(). There are
`hundreds more, some widely used and others highly
`specialized, organized hierarchically.4 Excel also em-
`ploys a set of rules for how to identify the cells on which
`the formula will operate. Just like a method call in a
`Java program, if a formula is written in a different id-
`iom, it will not work.
`
`Learning the command structure of Excel requires
`
`a substantial commitment of time and resources. But
`doing so is not an investment in Excel alone. Because
`commands are not copyrightable, many of Excel’s
`competitors, like Google Sheets and Apple Numbers,
`use the same formula conventions, making it easier
`for consumers to switch among spreadsheet pro-
`grams.5 In fact, many of the commands in Excel did
`not originate with Microsoft at all. Instead, they were
`
`4 See Microsoft Corp, Excel Functions (alphabetical), https://
`
`support.office.com/en-us/article/excel-functions-alphabetical-b394
`4572-255d-4efb-bb96-c6d90033e188 (last visited Jan. 7, 2020).
`For example, each command is organized into a category (e.g.,
`“Math and trigonometry”). And some commands are named
`hierarchically, like the NORM.DIST, NORM.S.DIST, NORM.INV,
`and NORM.S.INV functions, each of which is a function providing
`a different type of normal (“NORM”) cumulative distribution for
`use in statistics.
`5 See Google, Google Sheets function list, https://support.
`
`google.com/docs/table/25273?hl=en (last visited Jan. 7, 2020); Apple,
`Functions, https://www.apple.com/mac/numbers/compatibility/
`functions.html (last visited Jan. 7, 2020).
`
`

`

`16
`
`used previously by a spreadsheet program called Lotus
`1-2-3. See Lotus Dev. Corp., @Functions and Macros
`Guide (1991). (Lotus 1-2-3 is the very program whose
`command structure was the subject of Lotus Develop-
`ment Corp. v. Borland International, Inc., 49 F.3d 807,
`811 (1st Cir. 1995), aff ’d by an equally divided court,
`513 U.S. 233 (1996)).
`
`As with Java and Android, the implementing code
`
`for all of these programs is proprietary and unique.
`The shared commands, however, permit users who
`have learned one spreadsheet program to transition
`easily to another as work or life demands.
`
`Not all widely used systems of software commands
`
`are as complex as Excel. Perhaps the most ubiquitous
`are the popular keyboard commands that are used in
`a wide variety of programs: Control-C to copy; Control-
`V to paste; Control-Z to undo; Control-P to print; Con-
`trol-S to save; Control-I for italics; Control-U for under-
`line; Control-B for bold. (Mac computers use the same
`commands, but with the Command key held in place of
`the Control key.) These commands (and others) are im-
`plemented throughout Microsoft products like Win-
`dows and Office, Google software like Docs, Gmail, and
`Chrome; MacOS and Apple’s productivity software;
`and countless applications made by smaller develop-
`ers.6 On trying a new piece of software, it is only
`
`
`6 Indeed, like the Excel formulas, many of these shortcuts
`
`originated with a system no longer in use. The cut-copy-and-paste
`idiom, as well as the Control-I, Control-B, and Control-U com-
`mands for text formatting, originated with the Xerox Alto com-
`puter developed at Xerox PARC in the 1970s. See Larry Tesler
`
`
`

`

`17
`
`natural to assume that most of these commands will
`function normally. They have become part of our un-
`derstanding of how computers work. As with the Excel
`formulas, the implementation of each of these com-
`mands is unique to each program. Only the commands
`are shared.
`
`These commands are, of course, somewhat simpler
`
`than the commands Oracle seeks to control in this
`case. But they are no different in kind: they are com-
`mands used by humans, sometimes in a sequence, to
`get a computer to do what the human desires.
`
`
`
`2. Copyrighted interfaces would make it
`harder for consumers to switch prod-
`ucts and enable developers to raise
`prices.
`Oracle no more owns the right to control who may
`
`use the command java.lang.Math.max() than Microsoft
`owns the right to control who may use the command
`=sum() or Apple owns the command Control-C to copy.
`
`If this Court rules that interfaces are copyrighta-
`
`ble, the habits and instincts we have acquired through
`learning and using dozens of programs will cease to
`serve us, because developers will risk copyright liabil-
`ity if they reuse or adapt common interfaces. The result
`
`
`et al., Gypsy: The Ginn Typescript System, http://www.bitsavers.org/
`pdf/xerox/alto/memos_1975/Gypsy_The_Ginn_Typescript_System_
`Apr75.pdf, at 5; Larry Tesler, A Personal History of Modeless Text
`Editing and Cut/Copy-Paste, Interactions, July & Aug. 2012, at
`70.
`
`

`

`18
`
`will be that copyright law will interfere with software
`development, incentivizing needlessly baroque and
`complex interface design to minimize the risk of sub-
`stantial similarity to an existing group of commands.
`
`The most direct consequence, however, will be that
`
`co

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