Brief of Amici Curiae Mozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia in Google v. Oracle (Cert. Petition 2019)

This Amicus Brief was filed in the United States Supreme Court in the case of Google v. Oracle in support of Google's 2019 petition for certiorari. Competition and innovation are two principles at the heart of a healthy internet and the field of software development that fuels it. For decades, software engineers have relied heavily on reuse and reimplementation of functional protocols, such as the Application Programming Interfaces (APIs) in this case, to create competing alternatives to incumbent industry players and new markets for development without fear of copyright infringement. In accord with the Supreme Court’s ruling in Baker v. Selden, 101 U.S. 99 (1879), and the plain language of 17 U.S.C. § 102(b) (2012), the software industry has flourished utilizing this approach to make internet and software ecosystems more accessible, affordable, diverse, and robust. By reversing this rule in the context of APIs, the Federal Circuit upended decades of industry practice and the well-established expectations of developers, investors, and consumers. API reimplementation is a common theme among developers of all sizes — from those wishing to create entirely new platforms to those wishing to develop on them. The court below heedlessly unraveled this reasonably predictive rule and set of reliable norms that are critical to software coders for understanding what is appropriate to carry over from one project to another and what is not. This is especially true for individual coders, small startups, or nonprofit software projects, who often lack legal counsel or large financial reserves to defend themselves against unwarranted litigation. In this brief, Amici urge the Court to grant Google’s petition for certiorari in order to correct this misreading of copyright law. Specifically, Amici wish to highlight two fundamental concerns with the lower court’s opinion. First, the court’s dramatic expansion of copyright protection to include APIs, which Amici believe are not copyrightable under U.S. law, stifles innovation and competition by privileging powerful incumbents and creating artificial barriers to entry for new players and innovators where none existed before. Second, the Federal Circuit’s rejection of the fair use doctrine stands to undermine not only reimplementation and reuse of APIs, but also other valuable software engineering practices, such as reverse engineering, interoperability, and the creation of competing platforms, as well as innovations in data analytics, search engines, and many other groundbreaking advancements. Specifically, by creating irreconcilable conflicts with bedrock software fair use principles that have set the norms of engineering practice for over two decades, the Federal Circuit has opened the door to re-litigating many status quo software engineering practices — practices that open source projects and small startups depend on every day to produce new platforms, programs, features, and interfaces. This brief was prepared with the help of NYU Law clinical students Iman Charania and Michael Pizzi under the supervision of Professor Jason Schultz.