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Oracle has gained some powerful support in its appeal of its loss in the Android-Java patent-infringement case against Google, as Microsoft and a host of other industry leaders lend their support for the Oracle side.
Microsoft, along with EMC, NetApp and the Business Software Alliance (BSA), has filed amicus curiae or “friend of the court” briefs in support of Oracle’s appeal. Feb. 19 was the deadline for amicus briefs, and they came pouring in from potent supporters such as Microsoft, EMC, the BSA, Sun Microsystems co-founder Scott McNealy, a trio of academics and other supporters of copyright law.
“The persuasive impact of amicus curiae briefs depends not only on what is said but also by whom it is said,” wrote Florian Mueller, author of the FOSS Patents blog and a close follower of the Oracle case, in a Feb. 20 post. Mueller also has been a consultant for Oracle in this matter.
Microsoft’s support is important, but also somewhat ironic, as Microsoft’s early attempts to undermine Java played a key role in the government’s landmark antitrust case against the software giant. However, now, with Google as a formidable competitor, Microsoft sides with Oracle in a play to weaken the search behemoth. Microsoft has hired Gregory Garre, a former U.S. solicitor general who is now a partner at the law firm of Latham & Watkins, as its attorney in support of Oracle’s appeal.
EMC and NetApp filed a joint submission to the court in support of Oracle. The BSA, which is an advocate for the global software industry, also threw its weight behind Oracle. BSA members invest billions of dollars annually “to create software solutions that spark the economy and improve modern life,” the association says on its Website. BSA members include Adobe, Apple, CA, IBM, Intel, Intuit, Microsoft, Oracle, Progress Software, Symantec and a host of others.
In addition to major software vendors, Oracle also enlisted the support of a former copyright leader. Ralph Oman, who served as register of copyrights—the director of the U.S. Copyright Office within the Library of Congress, also filed a brief in support of Oracle’s claims. Oman served as register of copyrights from 1985 to 1994.
Mueller said Oman’s brief stands out because “it not only states supports for plaintiff-appellant (Oracle) but also ‘urges reversal'” of U.S. District Judge William Alsup’s finding for Google in the case. Oman’s participation also is important because Oracle’s appeal focuses solely on the copyright portion of the case.
Meanwhile, creative organizations, including the Picture Archive Council of America (PACA) and Graphic Artists Guild filed a joint brief supporting Oracle. PACA is a trade organization that represents stock archives that license images for commercial reproduction, and the Graphic Artists Guild’s members include graphic designers, Web designers, digital artists, illustrators, cartoonists, animators, art directors, surface designers and other creative types.
The push for appeal would not be complete without an academic presence, and Oracle garnered support from a computer security expert, an engineering professor and a computer networking and intellectual-property professor. The three professors filed a joint brief. Professor Eugene Spafford, who teaches computer science at Purdue University, joined Zhi Ding, a professor of electrical and computer engineering at the University of California Davis, and Lee Hollaar, a professor of computer networking and intellectual property at the University of Utah, in filing the brief in support of Oracle.
Oracle filed a motion to appeal earlier this month with the U.S. Court of Appeals for the Federal Circuit asking the court to overturn Judge Alsup’s ruling that the material Google copied is not protected by copyright. Alsup ruled that Oracle only used non-copyrightable elements of 37 Java APIs in creating Android. Google won its case on the most important infringement claims, but the jury found that the company had copied portions of Oracle’s Java code. However, Judge Alsup deemed these portions non-copyrightable.
Oracle sued Google claiming that the search giant infringed Oracle’s Java patents and copyrights in creating its Android operating system. Google argued that it did not violate any patents and that Oracle could not copyright the APIs for Java. Oracle also asked the appellate court to rule against Google’s “fair use” defense and find that Google’s use of Java where Oracle already has a presence is not fair use. The jury hung on the fair use issue in the original case.