Sony asks top EU court to enforce copyright law against cheat software that changes variables in PlayStation memory, not program code

The last time this blog talked about an IP enforcement case to which Sony was a party was 12 years ago when hundreds of thousands of PlayStations were seized in the Netherlands over a patent infringement allegation by LG Electronics. More recently, Sony has been mentioned as the only vocal complainer over Microsoft's acquisition of Activision Blizzard King (most recent blog post, tweet about latest court filing by Microsoft, Twitter thread flagging errors in GamesIndustry.biz article previously identified by two of my followers, tweet about likely Chinese approval, tweet about European game developers' support, Microsoft's president's latest tweet about Nintendo deal).

Now Sony is the plaintiff in the most interesting software copyright case that has been referred to the European Court of Justice since SAS (decided in 2012). On Thursday, the Bundesgerichtshof (Federal Court of Justice of Germany) announced (in German) its decision to make a request for preliminary ruling--briefly called preliminary reference--to the European Court of Justice (ECJ). Yesterday, Graf von Westphalen--the law firm that represents the defendant, Datel Group--issued a press release as well (in German, too), from which I learned the names of the parties, which the court itself was not allowed to reveal.

In the IP law community, this case will, however, be widely referred to as Sony v. Datel. And the question is whether cheat software--that allows video gamers to make faster progress or unlock features in games through technical manipulation--infringes copyright law.

These are the questions referred to the top EU court (in German, plus my unofficial translation):

1. Wird in den Schutzbereich eines Computerprogramms nach Art. 1 Abs. 1 bis 3 der Richtlinie 2009/24/EG eingegriffen, wenn nicht der Objekt- oder Quellcode eines Computerprogramms oder dessen Vervielfältigung verändert wird, sondern ein gleichzeitig mit dem geschützten Computerprogramm ablaufendes anderes Programm den Inhalt von Variablen verändert, die das geschützte Computerprogramm im Arbeitsspeicher angelegt hat und im Ablauf des Programms verwendet?

2. Liegt eine Umarbeitung im Sinne von Art. 4 Abs. 1 Buchst. b der Richtlinie 2009/24/EG vor, wenn nicht der Objekt- oder Quellcode eines Computerprogramms oder dessen Vervielfältigung verändert wird, sondern ein gleichzeitig mit dem geschützten Computerprogramm ablaufendes anderes Programm den Inhalt von Variablen verändert, die das geschützte Computerprogramm im Arbeitsspeicher angelegt hat und im Ablauf des Programms verwendet?

Unofficial translation by FOSS Patents:

1. Is the object of [copyright] protection of a computer program under Art. 1 (1) to (3) of EU directive 2009/24/EC ["the Software Directive"] encroached if neither the object code nor the source code of a computer program or a copy thereof is altered, but a different computer program running separately with the protected computer program modifies the values of variables stored in memory by the protected computer program and used by it in the execution of the program?

2. Is it an alteration within the meaning of Art. 4 (1) (b) of the Software Directive if [what follows now is the same conditional subclause as in question 1] neither the object code nor the source code of a computer program or a copy thereof is altered, but a different computer program running separately with the protected computer program modifies the values of variables stored in memory by the protected computer program and used by it in the execution of the program?

To understand the technical background of the dispute, it's helpful to look at how long this litigation has been pending: well over a decade. In January 2012, the Hamburg Regional Court sided with Sony, but was overruled in October 2021 by the Hamburg Higher Regional Court. This is an unusually long time almost ten years between the two decisions, and from the publicly available information I cannot deduce the reason for the delay. Anyway, the case was then appealed further (by Sony) to the Federal Court of Justice (case no. I ZR 157/21, caption: Action Replay).

The Wikipedia page about Datel indicates that the company has a long history of making cheat devices and was sued by Sony as early as in the 1990s. I suspect that the case that has now been put before the ECJ involves a product called Lite Blue Tool, which according to Wikipedia "caused a Sony PlayStation Portable (PSP) to enter into Jigkick or Factory programming mode, allowing the execution of the boot code from a removable storage."

It is extremely difficult to execute unauthorized code on today's PlayStations. It's like with the iPhone: one has to "jailbreak" (or "mod") the device.

Those practical hurdles don't render the legal question here irrelevant. Cheat programs that manipulate games are hated by the industry and by honest players.

I don't want to be a hypocrite: I did something similar in the 1980s on Commodore home computers. There was a BASIC command named POKE that made it possible to modify the value stored in memory (POKE address, value). Plenty of cheat codes were known at the time, and for a couple of games I looked into the program code (using what was called a monitor--a program that displays machine language code in a more legible form) to find out where, for instance, the number of lives was stored so I could just increase it from, say, 3 to 255 (maximum value of a byte). And back then it was even done prior to execution (those were single-tasking devices), meaning that what we altered was the copyrighted work that we had downloaded.

While I understand Sony's desire to combat cheating with copyright law, it may not be the best vehicle. It would take DMCA-style legislation (even going beyond the DMCA in my opinion), but the ECJ may just decide to legislate from the bench as it did when it held website operators liable for copyright infringements on third-party websites they link to (good for right holders) or when it declared a programming language unprotectable regardless of the level of creativity (SAS Institute v. World Programming) (bad for right holders).

Copyright has always been a suboptimal--but still pretty useful--means of protecting computer programs. In practice, it's really a mix now of various intellectual property rights that software makers rely on: copyright, patents, trade secrets (particularly in the age of cloud computing), and trademarks.

Copyright is meant to protect creative expression, such as art and literature. The fact that it extends not only to source code (which comes with legible variable and function names) but also to object code (which is derived from source code, but typically stripped of such clearly expressive elements) is a bit of a stretch, but justifiable because it's still the same structure, sequence, and organization as the source code. However, technical functionality--whatever happens at runtime--is the prerogative of patent law. Art. 1 of the EU Software Directive says that it "shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works" and "[p]rotection ... shall apply to the expression in any form of a computer program." The directive clearly says:

"Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive."

Art. 4 of the EU Software Directive relates to restricted acts, meaning acts for which one has to be the creator or needs a license from the creator. Of the three types of restricted acts, the first (reproduction) and third (distribution) are not at issue. It's the one in the middle that matters:

"(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;"

The passage that could help Sony here is "any other alteration of a computer program"--though we are talking about an alteration of an in-memory value as opposed to the protected program code, and the final part protects "the rights of the person who alters the program" (which could include the right to just change values stored in memory after you've paid for the device and the software).

If the ECJ focuses on the effect, Sony has a strong case: if, for example, a runner game puts obstacles in the way of a gamer and a cheat program just writes zeroes into the memory section where the data points for those obstacles (type of obstacle and location) are placed, you get the same effect as if you removed the obstacles by altering the program code that displays them, checks for collisions, or penalizes players for hitting them: the obstacles don't appear or at least don't affect the player. But we're talking about runtime technical effects while copyright is about design time and more static than patent law. I believe the appeals court in Hamburg was right when it held that it would have to take something more than just modifying variables in memory to perform a copyright infringement in the sense of an alteration of a copyrighted work itself. But there is no court above the ECJ, and like in the link liability case I mentioned further above, it may again take an expansive view on the scope of copyright protection.

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After Google's announcement of bad-faith compliance with in-app payments law, South Korean lawmakers must go back to the drawing board if they respect themselves and want to be respected

Barring the unforeseeable, I intend not to comment again on app store matters after this post until the Ninth Circuit has ruled on (and most likely will have granted) Apple's motion for a stay of Epic's injunction. But a follow-up to the previous post, which I just linked to, is warranted by Google's official announcement of how the search giant and mobile operating system market leader intends to "comply with the [new South Korean in-app payments] law" (quotation marks are not enough to put this into perspective). I had not addressed this part in my previous post, but it's the same pattern as what Apple intends to do--and Google's announced new terms just took effect yesterday.

The issue is precisely the same one. The South Korean law theoretically requires Apple and Google to do what Epic Games has so far failed to win in court (except in the eyes of a journalist who may never stop reiterating clearly erroneous legal interpretations) and the odds tend to be against Epic's appeal). Yet the bill proves pointless, useless, worthless in practice. But I strongly suspect that this is not how the South Korean legislature wants to be seen, so this is presumably not the end of the story.

The tax and review tyranny of the two leading mobile app stores (Apple's iOS App Store and Google's Android equivalent named Google Play) is under attack on multiple fronts in different ways. There is litigation, which has so far not helped in any meaningful way other than exposing certain issues; there are antitrust investigations, the mere specter of which already played a key role in getting Apple and Google to change some of their terms; and there are legislative initiatives, with South Korea theoretically having been ahead of the rest of the world but now risking to be nothing more than Apple and Google's laughing stock.

Here's the problem with what Google describes as compliance with the South Korean law requiring alternative in-app payment options:

"Service fees for distributing apps via Android and Google Play will continue to be based on digital sales on the platform. We recognize, however, that developers will incur costs to support their billing system, so when a user selects alternative billing, we will reduce the developer’s service fee by 4%."

So, if you're large enough that you normally pay 30%, the Google Play tax goes down to 26%; if you're eligible for small business terms, or if you're large and a particular customer's subscription has been in place for long enough, it's reduced from 15% to 11%; and for Google's Media Experience Program, it changes from 10% to 6%.

4% is just marginally above payment processing fees. If developers don't use Google Play, they have to use some other service or, if large enough, they might opt to work directly with credit card companies. To put this into perspective, let me quote the Bankrate.com website:

"Visa and Mastercard tend to charge merchants between 1.5% and 2.5% to accept their credit cards, whereas American Express charges between 2.5% to 3.5%."

So Google's reduction would leave a margin for third-party payment processing of only about 2.5% in the best case and 0.5% in the worst case (Amex's peak rate).

As a result, end users wouldn't save enough money to even bother to enter payment credentials elsewhere.

No app developer could profitably offer users a non-negligible discount if they used an alternative payment system. The saving (on what the developer owes Google) is just not going to make a difference.

The same would happen in the U.S. if the Epic Games v. Apple injunction ever got enforced (which it never might).

As I wrote yesterday, Apple has already declared its intent to levy its app tax on payments made by users who follow external links that take them out of an iOS app to complete a transaction. I'm sure Apple would not offer "sweeter" terms in that hypothetical scenario of Epic enforcing its consolation-prize injunction (again, I think the injunction will be stayed, and I don't think the anti-anti-steering injunction based on California UCL is all that solid).

The difference is just that the Epic Games v. Apple judgment explicitly authorizes Apple to do this. The judge recognized Apple's right to tax app developers. The South Korean law, as far as I can see, neither endorses the app tax nor does it prevent Google from at least trying to get away with bad-faith compliance that is not against the letter of the law.

Whether Apple will play the same game in South Korea or just stop selling devices there remains to be seen. South Korea is pretty much "Samsung Country." It might not be worth it for Apple to serve a limited number of Korean customers if it has to make the kind of concession that no other jurisdiction, for the time being, requires it to make. It could always return to the market later, and various South Korean Apple fans would probably buy their devices abroad.

But Android is huge in South Korea, so Google won't leave the market: it just capitalizes on the in-app payment law's biggest structural weakness.

In the short term, this may be the right move for Google. It might backfire, however, in the event that South Korean lawmakers recognize that their original bill was not intelligently designed, and come back to require an equal footing for alternative app stores, ruling out that alternative app stores can be taxed. But that would then raise the question of whether South Korea would expropriate Google (and Apple, if the iPhone maker even wanted to stay in that market under those circumstances). There is intellectual property involved, even though--ironically, in no small part as a result of Google's 11-year litigation with Oracle--it would be hard to enforce profitably through infringement litigation. Here, the platform makers can just leverage the market power of their platforms. And at some point the question would then be whether any jurisdiction could and would force them to make their developer tools available to everyone. Theoretically, third-party developer tools could do the job. Practically, constant operating system changes might put alternative tool makers at a fundamental disadvantage, or simply out of business.

There would be challenges even if alternative app stores were allowed. But app store diversity would be structurally stronger and more enforceable, provided that the platform makers would be barred from self-preferencing or from sabotaging third-party app stores. Any restrictions of access to API, or performance degradations by design, could be proven with the help of technical experts, and then those companies could be fined.

So far, Russia and Japan have been most effective, though I think that the European Commission, just by looking at certain issues over many years, was intimidating enough that Apple started to lower its fees, such as the 15% rate for long-running subscriptions (most subscriptions are actually not in place for very long, so what looks like a generous gesture has limited financial impact in practice).

Russia broke the app review monopoly by enabling its government to dictate what Russian apps Apple needs to pre-install. There was some doubt about whether Apple would accept this, but ultimately Apple wanted to keep the rubles rolling and acquiesced. Japan reached an "e-reader" settlement with Apple, which has global impact, but the jury is out on whether Apple will figure out a way of rendering it a lot less effective, such as by restrictions on cross-purchases.

South Korea initially appeared to make the boldest move, but after Google's announcement the question is just whether Apple will adopt the same approach or, more likely, refuse to comply altogether. Either way, the South Korean bill doesn't help developers or consumers in the slightest as things stand.

The South Korean parliament needs to amend its bill or Google will be laughing all the way to the bank.

And there's a geopolitical issue here: South Korea is somewhat dependent on the United States (not just for military reasons). For a variety of reasons it may not be feasible in the foreseeable future, but the best solution for countries like South Korea and even Japan, Russia, India, or possibly Latin American countries, would be to cooperate more closely than ever with the European Union on the regulation of digital markets. I'm not doubting the good intentions of U.S. lawmakers, such as the one and only David Cicilline (just one example), to address these issues. But should it turn out that the U.S. government would ultimately stand behind Apple and Google once countries like South Korea seriously regulated digital marketplaces, smaller countries might have to team up with others lest they be bullied around.

Microsoft is on the right side of history with respect to app distribution. It never did anything even 1% as bad as what Apple and Google have been doing for more than a decade now. But there was a time when Microsoft's conduct raised issues, and in a way, Google's announcement reminds me of Microsoft having been forced by the European Commission (and the EU judiciary) to offer a "Windows N" edition without the Media Player: it did nothing to create additional opportunities for alternative media players as customers saved nothing, Microsoft obviously had no incentive to promote it, and hardly anyone ever spotted, much less purchased, a "Windows N" edition. However, the far more important part of the EU Microsoft case involved network protocols, and that one did have an impact. Interestingly, in that part of the case IP was key (as Microsoft could have tried to enforce patents against third-party implementations of its protocols, and asserted copyright over documentation), and the EU ensured that only a small license fee could be charged. Also, Microsoft has been extremely careful to avoid antitrust issues ever since (there may still be occasional complaints, but they don't appear to have substance), which is more than Apple and Google can say at this stage.

Google's announcement is just the South Korean equivalent of "Windows N": a jurisdiction tells them to offer choice, and the target of the new regulation says "you can have choice, but it's not our problem whether anyone will actually end up choosing the alternative we are forced to provide."

South Korea didn't get this right the first time because Google can just provide a choice that makes no business sense. But no one is ever beaten unless they give up the fight. Better luck next time, South Korea! And may lawmakers and other decision makers (judges, regulators) around the globe learn from South Korea's initial mistake.

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Intellectual property rights might not entitle Apple to any 'commission' on app revenues, but in any event nowhere near 30%: court misunderstood Epic's lawyers

For a blog with "patents" in the name it would actually have made a lot of sense to start the discussion of the Epic Games v. Apple ruling with the intellectual property aspects of the case. But I had to combat disinformation of app developers regarding the practical effects of the injunction (should it ever be enforced).

The court ruling is unfair to Epic with respect to what it actually wanted and argued. (Some would argue that it's unfair in other ways, too, but I wish to keep a narrow focus in this post.)

In the decision, Judge Yvonne Gonzalez Rogers accuses Epic of "overreach" and suggests that Epic wanted Apple to receive nothing from app developers, though even her own decision notes that "Epic Games does not venture to argue that Apple is not entitled to be paid for its intellectual property." The passage I just quoted is an understatement. Epic's counsel unequivocally said during closing argument that Apple is entitled to reasonable and non-discriminatory compensation for any intellectual property, but an antitrust case is always about putting an end to illegal practices (without necessarily replacing them with an alternative compensation scheme right away). It was not about a free ride. It was about not letting Apple (ab)use its App Store monopoly, and subsequently one could still talk about IP (but not in that same case).

I have no idea what Epic's appeal will focus on, but I wouldn't be surprised if the appeals court agreed with Epic that a sequential approach is precisely the way antitrust law works: you stop the illegal practice first, and then the defendant can come up with a new practice, which may invite further challenges (but those won't happen, or at least won't have merit, if the new practice is reasonable and non-discriminatory). The appeals court may tell the district judge that the purpose of a unilateral conduct case is not to replace an illegal practice with a legal one.

One question that some people are asking themselves already is whether Apple will seek its App Store commission on payments made outside an iOS app but because of an app linking out to, for example, a website. As I explained in my previous two posts, there's no way that Apple would have to tolerate alternative payment systems. The court made it clear that it's just about generating awareness for offerings on other platforms while Apple remains free to require the exclusive use of its own IAP system, and Apple will benefit from the legal standard, which allows Apple to interpret the injunction (in light of the underlying order) in the way most favorable to its own interests, as long as it's not unreasonable.

In practical terms, it would be possible but a real hassle for Apple to have to collect app commissions from developers that are generated through other payment systems. Apple couldn't possibly audit each and every developer's books. Maybe it could impose some severe penalties for fraud and then just perform audits in suspicious cases plus a few random audits. But we don't really have to think too much about that. Again, the injunction--if and when it actually gets enforced--is not going to be a major problem for Apple. They can reasonably interpret the court ruling as not having to condone any "end run" around its IAP rule, such as a mere web shop where users purchase digital items they consume on iOS.

With some console makers not allowing cross-wallet/cross-purchase (or seeking an additional compensation for cross-play), Apple could take the same position now. That would have political implications, but the Epic v. Apple ruling doesn't prohibit it.

As some people are discussing now, the court says that Apple could collect a commission even on sales through other app stores--though it would then be an IP license fee in the form of a percentage of sales, which is why the term "commission" doesn't fit. I think the court should have defined the term more narrowly. (On a previous occasion I also criticized Apple for broadening its meaning.)

What the court got absolutely right is that the 30% cut is not a market rate for the intellectual property in question. The court even takes note of "Apple’s low apparent investment in App Store-specific intellectual property." The commission is practically imposed and enforced because of Apple's app distribution monopoly. The term "gatekeeper" (which is very popular in EU tech policy and law) doesn't appear in that ruling, but that's what it's all about.

That leads us to an interesting question: what is the commission rate going to be in a future scenario (it's really a question of when--not if--this happens) where new legislation and/or a successful appeal by Epic would do away with the gatekeeper toll and would instead leave Apple with only one tool at its disposal--IP enforcement--to collect money from developers?

What if (actually, when) developers can publish iOS apps without depending on Apple's app review because they can go through alternative app stores (and "sideloading")?

The Epic v. Apple ruling explains the following:

"Apple distributes its basic developer tools for free but charges an annual fee for membership in its developer program to distribute apps and which allows access to, for instance, more advanced APIs (many of which are protected by patents, copyrights, and trademarks) and beta software."

"Apple’s intellectual property as it relates to the iOS ecosystem generally are significant. The record is undisputed that Apple holds approximately 1,237 U.S. patents with 559 patent applications pending. With respect to the App Store itself, Apple holds an additional 165 U.S. patents with 91 more U.S. patent applications pending. Other than these patents, Apple does not identify specifically how the rest of its intellectual property portfolio impacts the technology at issue in this case nor does it specifically justify its 30% commission based on the value of the intellectual property. It only assumes it justifies the rate."

Given this year's Supreme Court decision in Oracle v. Google, I can't see how developers' use of Apple's APIs would not constitute fair use. Google even got away with incorporating APIs into a new product that competed with (and ultimately displaced in the mobile market) the original platform (Java). Developers, however, don't use Apple's APIs to build a new operating system: instead, they build applications, with a strong presumption in each case that it constitutes transformative use.

Patent counts mean little. Epic wasn't going to turn this antitrust dispute over Apple's App Store monopoly into a declaratory judgment case over Apple's iOS and App Store patents.

If Apple had to resort to patent litigation against app developers in order to collect a commission, it would have to overcome developers' non-infringement and invalidity defenses. Developers would likely also raise equitable defenses, but let's not get into that here.

Those patent numbers may seem staggering, but they could melt down very quickly as most of those patents might simply never be infringed by a developer and others might get invalidated once challenged. If any valid patents are actually infringed, the next question is whether developers could work around them. Let's assume, just hypothetically, that there would be one or more valid patents left that are infringed and cannot be worked around. Then we get to the remedies stage.

Seriously, Apple wouldn't get anywhere near 30% (or even 15%) of developers' revenues in the form of damages or ongoing royalties.

The only way Apple could theoretically still get its 30% cut would be if it obtained an injunction. In the U.S., Apple would have to meet the eBay v. MercExchange standard. Developers would argue that Apple actually benefits from the availability of apps and makes money on its devices. That would up the eBay ante for Apple. In some other jurisdictions, particularly Germany, Apple could obtain injunctions more easily, but it probably has fewer patents there.

Even if Apple obtained an injunction, it might then face an antitrust challenge to its rates--with the same arguments Apple makes against standard-essential patent (SEP) holders. Sure, Apple would argue that it never made a FRAND licensing promise with respect to its iOS IP. But in Europe, SEP case law is antitrust-, not contract-based, and Apple made the same arguments there (and it also brought antitrust claims in the U.S. over SEPs, such as against Samsung, though in vain, and against Qualcomm, though the San Diego Apple v. Qualcomm case settled during opening arguments).

To sum it up, Apple needs the gatekeeper's leverage to collect its 30% (or 15% under the Small Business Program) commission from app developers. On an IP basis, at least in the U.S. (where it would likely be denied patent injunctions against developers), Apple would get nothing or a much smaller amount. In light of the risk-opportunity ratio, Apple might not even have an incentive to bring any IP infringement litigation against developers.

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Supreme Court deems Google's use of Java APIs in Android fair use, thus no infringement--doesn't reach API copyrightability

Based on how the Google v. Oracle Supreme Court hearing went in October 2020, it appeared to be a given that the Java APIs in question were copyrightable, and the fair use debate was over whether the Federal Circuit had correctly ruled against Google or whether the San Francisco jury would have had to be afforded so much deference that a judgment as a matter of law wasn't warranted. In the former case, the case would have gone back to San Francisco for a remedies determination. In the latter case, the Federal Circuit would likely have remanded for a retrial, as Oracle was disadvantaged by the district court.

Surprisingly, the Supreme Court has just declared Google's copying of thousands of lines of declaring code to be fair use, thereby substantially weakening software copyright protection in the United States as there had not previously been a case involving such a substantial amount of undisputedly original and creative program code that someone else was allowed to incorporate into a competing product and distribute billions of times.

This decision was supported by six of the nine justices. Only Justices Thomas and Alito dissented (and noted that the majority didn't want to address copyrightability because it couldn't have reached its fair use conclusion thereafter). Justice Barrett was appointed after the hearing.

The per curiam focuses only on fair use. Copyrightability didn't have to be addressed as the case has been resolved in Google's favor, more than ten years after it was brought. Last July, I already expressed concern that the court might not say much about copyrightability. At the time, I wrote:

"If the Supreme Court answered the 'fair use' question in Google's favor on the basis of jury deference [it now actually did so on the merits], it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit's copyrightability holding would be affirmed explicitly or (by reaching "fair use") mostly implicitly, the copyrightability of API code would continue to be a reality in the United States."

Given that the justices were pretty much unanimously leaning toward copyrightability in October, it would be quite risky for anyone to consider API declaring code uncopyrightable. However, technically the Federal Circuit's copyrightability decision hasn't been affirmed either.

Contrary to what many others will say, today's decision is bad news for software developers. We do need certain fair use rights, sure. But overreaching fair use encourages infringement. The simplest way to put it is this: if someone created a platform and later turned around on developers, alleging copyright infringement by continuing to use some API code in the apps themselves, that would raise issues--and if developers didn't have an equitable defense anyway, they should at least have fair use rights. In Oracle v. Google, however, the issue was much more narrow: it was about a new platform using another platform's API code to compete--in fact, displace--the older one.

The syllabus says: "In reaching this result, the Court does not overturn or modify its earlier cases involving fair use." That sounds like the ruling is meant to be of only a narrow scope. But it doesn't change anything about this being a major departure from what the fair use standard used to be, especially with respect to software. It definitely stretches the envelope, weakening copyright as a vehicle for protecting software.

Copyright and patents are intellectual property regimes that were created in centuries before the advent of computer programs. Without digressing into details, software patents are among the most controversial categories of patents (second only to so-called "patents on life"). With copyright, there are plenty of issues as well. For example, it is commonly accepted that object code--and not only source code--is protected by copyright. But object code is technical, binary, machine-readable, not human-readable. It's a stretch to apply copyright protection to object code, but in the alternative one would have to come up with a software-specific sui generis IPR. It has been suggested that a sui generis right--somewhere between copyright and patents--is needed, though no such initiative has gained traction to date. I wouldn't rule out that it might happen in the future, but certainly not in the near term.

There are also external factors due to which copyright protection of software as well as software licenses that rely on copyright to mandate reciprocity, which is called copyleft (and also weakened by today's ruling) are less key today than they were, say, 20 or 30 years ago: cloud computing and platforms.

• When software actually gets distributed to end users, it's much easier to identify copyright infringements. And copyleft generally applies only to distribution. As long as software stays on a server, it may commit infringements that are never detected, and most copyleft licenses just don't apply.

• In the platform economy, might all too often makes right. That's why Epic Games is suing Apple (the trial is less than a month away). Apple's airtight control of iOS and of what gets installed on a billion users' devices doesn't depend on whether APIs are copyrightable or whether software is patentable. Some copyright protection is needed because otherwise someone could just steal iOS and build alternative iOS devices--but they don't even need to own the copyright in their APIs as long as the operating system allows only Apple's own App Store to install apps, which in turn are "curated" by Apple and only Apple. It's all about market power, and the only remedy against that one is antitrust--or antitrust-like laws such as the upcoming EU Digital Markets Act--as fair use wouldn't open the App Store.

  There's plenty of people out there now who are celebrating today's Supreme Court decision as promoting innovation, competition, and openness. In reality, the net effect will be the opposite. When Sun created Java, they allowed everyone to make and publish apps for it. Sun adopted a dual-licensing model under which you could either get Java under the GPL free software license or take a commercial license. Sun is history--it was acquired by Oracle. The next company contemplating the development of a comparable platform will look at what happened in Oracle v. Google. Against that background, it may either be discouraged from making the investment in the first place--or it may be encouraged to pursue an Apple-like platform business model ("walled garden") and create network effects through a non-open system with cloud components, an exclusive app store, and so forth. In other words, if you can't own software, you'll try to own (access to) users.

The case appeared dead in 2012 after the district judge held thousands of lines of program code uncopyrightable, and a few years later after a second jury agreed with Google on fair use. The appellate attorney they call the Defibrillator, Orrick Herrington Sutcliffe's Joshua Rosenkranz, twice managed to revive the case. Every time he won an appeal, Google appointed a new lead counsel. Ultimately, Goldstein &amp, Russell's Thomas Goldstein won the case for Google. (By the way, Mr. Rosenkranz is on Apple's team against Epic, so we may soon see him in action in a high-profile software platform case.)

Lawyers are not the reason Oracle lost this. Google's network of allies and supporters, including a number of organizations funded by Google, have for more than a decade been campaigning against Oracle's case. Oracle never managed to convince large parts of various relevant communities (which are mostly just vocal minorities) that what it was trying to achieve here would ultimately be good for developers. Certain justices indicated at the October hearing that they were aware of widespread concern over an Oracle victory being harmful to software development. That was just fear, uncertainty, and doubt (FUD). But it worked.

It may also have helped Google that the Supreme Court has had to overrule the Federal Circuit in a number of patent cases, so the Fed. Cir. may have a certain reputation of being exceedingly right holder-friendly. I've seen Federal Circuit decisions that really went too far. In this case, however, the Federal Circuit was absolutely right about (un)fair use.

[Update 1] I tweeted this remark concerning the term "user interface":

„User interface“ is apparently a term with an ever-expanding scope. Until I saw the passage attached to the tweet below, I used to think the Java APIs weren’t a UI. I know other cases where API and UI overlap, such as SQL queries or when I manually made SYS calls on a Commodore. https://t.co/OgbH27qkd1

— Florian Mueller (@FOSSpatents) April 5, 2021

[/Update 1]

[Update 2] Oracle issued the following statement attributable to Dorian Daley, Oracle's EVP and General Counsel:

"The Google platform just got bigger and market power greater — the barriers to entry higher and the ability to compete lower. They stole Java and spent a decade litigating as only a monopolist can. This behavior is exactly why regulatory authorities around the world and in the United States are examining Google's business practices."

[/Update 2]

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Stifling creativity, chilling innovation, and now even killing people: the EU needs to rethink its approach to industrial policy

With VaxGate, Brussels--as a metonym for the EU--is going through its worst credibility crisis ever, while Brexit is already a success story in one particularly important regard: the UK is outvaccinating the Continent. It's also a fact that British elite universities outperform their continental counterparts in global rankings.

Even EU-friendly mainstream media such as German newsweekly Der Spiegel now feel forced to talk about some of what's going wrong. Spiegel author Michael Sauga today criticizes the Merkel-Macron doctrine (to me, they're simply the Axis of Evil, or even the Axis of Death) that COVID vaccines be both developed and manufactured in Europe in order to become more independent from other economic regions. Just yesterday, the European Commission granted provisional approval to Moderna's mRNA-based COVID-19 vaccine, further to a recommendation by the European Medicines Agency. While Moderna's vaccine is already in use in the U.S., the EU clearly treated it as its lowest priority among the top six candidates, simply because it's an American company that didn't have much, if any, European manufacturing capacity at the time.

If I had to choose which of the vaccines to take today, and if I even had the choice, I'd presently--subject to what we'll learn throughout the year--prefer Moderna's vaccine. The only known issue with all those mRNA-based vaccines is that the risk of an anaphylactic shock is about 20-25 times higher than with conventional vaccines. I don't have any known allergies (there a few measurable ones, but so minor I don't even notice anything, such as when I eat hazelnuts), so I'm particularly unlikely to be that one person among 40,000 or 50,000 who would suffer an anaphylaxis. I'd just want to be under observation for 30+ minutes after the jab. What makes me feel better about Moderna's vaccine than Pfizer/BioNTech's is that it may be slightly more advanced. BioNTech hopes to make further progress this year to bring down the cooling requirements. With Moderna already being where BioNTech is trying to get, it's possible that Moderna's product is more mature. Both are 95% effective, though it remains to be seen how well they work against new mutations (for B.1.1.7, a gradual reduction of efficacy is possible, but for the South African mutation, it's not even clear whether the existing vaccines will work at all).

So the EU initially treated as a low priority the COVID-19 vaccine that may actually turn out to be the best of all, and has already turned out to be one of the first two to become available. For industrial policy reasons. One has to be highly unethical or simply deranged to let so many people die for some ill-conceived industrial policy.

When Merkel and Macron were just the Axis of Evil--not yet the Axis of Death--, they already did a horse trade that was unbelievably stupid: Article 13, which then became, after a renumbering, Article 17 of the EU Copyright Directive. It's still high on the EU Commission's priority list. The Merkel government primarily wanted something else: the news snippets tax. That's because German media giants had lobbied for it very hard. For France, however, upload filters were going to be the grand prize. So Merkel and Macron agreed to do both.

There's something I really, really wish to clarify here: I don't disagree that some smart regulatory approaches are needed to certain platforms that have become extremely powerful. In fact, some of what they're discussing in the EU with respect to "gatekeepers" makes a whole lot of sense, and a majority of the House of Representatives raised similar concerns. The question is, however, what will ensure a level playing field and what is just going to be negative on the bottom line, like cutting one's nose to spite one's face.

Upload filters stifle creativity. The right holders who benefit from it are collecting societies, and they are problematic in various ways. Ultimately, just like some overreaching data privacy rules, such a framework may even raise barriers to entry.

Some simple-minded, totally incompetent people came up with the idea at some point that copyright could have a redistributive effect favoring France and Europe as a whole. Of course, the collective European market share of copyrightable works found on Internet platforms used in Europe is far higher than the market share of European platform makers. So if you give copyright holders more leverage over the platforms, it means that far more money will flow in a certain direction than in the opposite one. But those Merkel-supported French idiocies, such as upload filters, are not well-thought-out. From a holistic perspective, they do more harm than good. They just please some lobbyists, and some fools.

It gets slightly more complex, but no less clear, in the automotive standard-essential patent (SEP) licensing context. In that case, there isn't even a clear French beneficiary such as copyright holders or Sanofi (which is going to get a lot of money for a vaccine research project that is otherwise a huge disappointment and failure so far). There actually would be French beneficiaries--car makers like Renault and automotive suppliers like Valeo--from the better policy alternative. But French EU fake news commissioner Thierry Breton is beholden to Nokia and Ericsson, probably just because he has a long history with them due to his own industry background (France Telecom).

Not only Europe's automotive industry but even more so the wider IoT industry would have benefited from allowing the European Commission's Directorate-General for Competition (DG COMP) to investigate Nokia's refusal to grant exhaustive component-level licenses to "all comers" from all tiers of the automotive supply chain.

The concept of "digital sovereignty" (which in this case means having European telecommunications infrastructure providers) could and should be separated from competition enforcement. Give them subsidies, or allow their national governments to do so. But don't let other industries--automotive and, more generally, IoT--suffer, especially when the vast majority of 5G patents aren't even owned by EU-based patent holders.

Ideally, industrial policy shouldn't influence antitrust enforcement. It's a reality that it often does, but if that's what you want to be the case, you at least have to think things through holistically. That doesn't appear to be a strength of people like Macron and Breton, and Merkel just follows them because she lives in an ivory tower and is detached from reality. A few years ago, she referred to the Internet as "Neuland" ("new land" or "unchartered territory"), which tells you all you need to know in this respect.

IP policy is industrial policy, but upload filters are insane. Competition enforcement should be principled, yet is often driven by industrial policy considerations, and whether you look at the merits of those complaints against Nokia or take an industrial policy perspective, the result would be the same: go after Nokia (and, by extension, Ericsson). And when it's about life or death, such as in the SARS-CoV-2 context, industrial policy almost literally kills people.

If the EU takes a smart and holistic approach to its Digital Markets Act/Digital Services Act initiative, and to competition enforcement in the app distribution context, its efforts may actually have a positive impact. But where things stand today, EU industrial policy, especially if devised by French politicians, all too often results in extremely stupid decisions. The EU can rely on many journalists failing to figure it out, or being ideologically biased and therefore unwilling to speak truth to power. In European media you find all those excuses that no one could foresee which vaccine research projects were going to be most successful when one would just have to compare the timeline of the EU's decisions (all of which are public) with the official progress reports of those projects (all of which are public, too, such as on the New York Times Coronavirus Vaccine Tracker). But ignorance, ideology, and spin-doctoring only do so much. Throughout this year, the EU's most miserable failure will become clearer and clearer. The decision makers in Brussels and their advisers will have realized by now that they've failed European citizens. Will they draw the necessary conclusions from it and do better in other areas?

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European Commission's Action Plan on Intellectual Property deemphasizes automotive industry concerns, prioritizes upload filters

Today the European Commission formally adopted and announced its Action Plan on Intellectual Property ("IP Action Plan").

A near-final draft of the document already leaked last week and generated some media attention. I elected to wait for the final document (also because I'm very busy with the impending launch of my iOS and Android game). Given that some significant changes have been made, I'm glad I did hold off.

So here's my rapid response, and I may go into more detail on some of these issues later or in a follow-up post:

• While a draft version of the document placed a great deal of emphasis on the need to engage with the automotive sector (given the particular issues it is facing with a view to the licensing of standard-essential patents (SEPs)), the final plan downgrades that industry's problems or at least seeks to defocus from them:

  "Although currently the biggest disputes seem to occur in the automotive sector, they may extend further as SEPs licensing is relevant also in the health, energy, smart manufacturing, digital and electronics ecosystems." (emphasis added)

  "With a view to clarifying these issues and identify [sic] best practices, the Commission has launched a study, with a specific focus on strategic sectors including the healthcare and automotive sectors." (emphasis added)

  The fact that the Commission deemphasizes the automotive industry's SEP issues may be attributable to the immense lobbying firepower and persistent, highly professional efforts by major SEP holders such as Nokia and Ericsson, which is not a conspiracy theory but based in fact (and would serve to explain the repeated postponement of the publication of this document). The automotive industry's lobbying departments are basically one-trick ponies that only know about emissions standards and similar topics. Those organizations may need another decade or two before they figure out IP policy.

  I actually doubt that the automotive industry would have had to expect anything positive to come out from the Commission's DG GROW (formerly called DG MARKT) "brokering" an agreement between the automotive sector and major SEP holders. That's because the commissioner in charge of DG GROW, Thierry Breton, is totally in the tank for Nokia and Ericsson, even up to the point where he describes fake news as "a fact! A fact! It is a fact!".

• The paper recognizes that small and medium-sized enterprises (SMEs) don't account for lots of patent filings. But basically the answer this plan attempts to give is just a combination of ever more internationalization and subsidies. Nowhere does the plan recognize that many SMEs would rather be protected from patents than by patents.

• One of the top two or three fallacies in the patent policy context is reiterated by the IP Action Plan:

  "Between 2010 and 2019, the number of European patents granted rose from 58 000 to 137 000, approximately - although the rise is less marked than in other parts of the world, notably Asia, where economies are quickly catching up on IP generation."

  A European patent is a patent that can be asserted in Europe--not a patent granted to a European company. None of the top four filers with the European Patent Office (EPO) is European.

• Artificial Intelligence (AI) patents are software patents, which actually shouldn't be granted in Europe in the first place. Here's what the paper says about Europe's low share of AI patent applications:

  "[A]lthough 26% of high-value research publications on AI comes from Europe, only 4 out of the top 30 applicants (13%) and 7% of businesses, engaged in AI patenting worldwide, are European."

  The reason for that is mostly that major platform companies (in the digital platform economy, Europe is at a level with Africa and irrelevant compared to the U.S. and Asia) generate a lot of income from their core businessees and invest some of that money into AI, enabling them to offer the most attractive working conditions to researchers--and to file for many patents in that field. I can't see how the IP Action Plan would change a thing about that.

• The Commission loves its upload filters:

  "A crucial part of this work concerns the implementation of Article 17 of the Copyright Directive, which sets out a specific legal regime for the use of copyright-protected content by user-uploaded content sharing platforms. The Commission has carried out an extensive stakeholder dialogue to gather the views of relevant stakeholders on the main topics related to this article's application. Taking into account the results of the dialogue, the Commission will soon issue guidance to support Member States in implementing this provision."

  Just last week, a senior Commission official actually acknowledged that Article 17 may not survive a pending court challenge. I opposed it (even spoke at a couple of demonstrations against it).

• While this is outside the industry focus of this blog, I believe it would make a whole lot of sense for the Commission to "to introduce a unified [Supplementary Protection Certificate] grant mechanism and/or create a unitary SPC title," which the IP Action Plan mentions as possibilities.

The IP Action Plan is per se underwhelming and unspecific, but that doesn't mean that the initiatives it outlines as potential measures couldn't be impactful in the end--possibly even with respect to SEPs. We'll have to stay tuned.

[Update] The Fair Standards Alliance (FSA) just issued a statement, saying the organization "welcomes the European Commission’s goal to bring more transparency to standard essential patent (SEP) licensing." [/Update]

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Don't blame EU competition chief Margrethe Vestager if SAP customers' antitrust complaints are fundamentally flawed, get copyright law wrong

You'd be hard-pressed to find anyone less SAP-friendly than me, given that I harshly criticized the German enterprise software maker (just the week before last) for botching--together with Google and Daimler--the German patent injunction reform and even called Microsoft, BMW, and Deutsche Telekom "lemmings" for following SAP's lead. The last occasion on which I collaborated with SAP was over a decade ago when we were co-complainants against Oracle's acquisition of Sun Microsystems--and the individuals I worked with at the time have meanwhile retired. Also, SAP is absolutely irrelevant to my business as a game app maker (I finally submitted a beta version to Apple on Thursday for TestFlight approval, and we'll submit our Android version to Google this week).

But I am interested in reasonable and balanced competition enforcement. While I

• dislike the notion of EU Commission vice president Margrethe Vestager being in charge of both the EU's antitrust watchdog and digital industry policy (a result of precisely the kind of backroom horse trading the EU is notorious for),

• believe some recent EU competition decisions against U.S. respondents lack merit (in one of those cases, the EU General Court recently agreed with me), and

• have been criticizing the Commission's reluctance to take action against Nokia,

it's overly simplistic and sometimes just propagandistic to cry wolf over protectionism each and every time Mrs. Vestager and the Directorate-General for Competition (DG COMP) investigate a U.S. company or fail to take action against a European industry player. It depends. Sometimes it's actually true, such as in the Nokia case, though the politician to blame for inaction in that context is EU fake news commissioner Thierry Breton. But there are cases in which it's not the real issue, and I see some initial indications of a strong case against the case against my non-friends at SAP.

Politico--to be clear, I'm not attacking that publication--reported on allegations (also found elsewhere) that Mrs. Vestager had a conflict of interest with respect to SAP. This is different from the situation in October 2019, when I actually disagreed with the focus and message of a Politico article on the automotive component-level standard-essential patent (SEP) licensing issues involving Nokia and, by short extension, Ericsson. A few weeks later I met Politico's Thibault Larger in Brussels and we understood each other's positions quite well; I also apologized should my post have appeared to insinuate anything improper or unreasonable on Politico's side.

At the heart of those complaints against SAP--one was lodged with the Bundeskartellamt (Federal Cartel Office) in 2018, and another with DG COMP--is some customers' disagreement with SAP's policy that it charges for how its software is used, which often involves third-party applications. The complainants--a group named VOICE including the likes of Siemens and Volkswagen--argue that the 2009 EU directive on the legal protection of computer programs (summary) protects interoperability to the extent that SAP couldn't do that. With my combined IP and antitrust background, I can't help but find that argument not only spurious but downright nonsensical.

What the directive in question actually refers to is the decompilation (a step that is typically at the beginning of a reverse-engineering effort) of program code. If a certain set of conditions are met, the right holder's ability to enforce copyright may be limited for interoperability's sake.

There's no such theory in Europe as copyright misuse, which is a very American concept. SAP is free to define the terms of its copyright licenses, even if those terms make whatever reference to third-party products--unless there's an antitrust violation, and the aforementioned directive explicitly says that it's not meant to restrict competition enforcement. At the same time, I can't find anything in that directive that would lower the hurdle for establishing an antitrust violation, contrary to what the complainants say.

They acknowledge that there are alternative Enterprise Resource Planning (ERP) offerings by world-class vendors such as Microsoft (way bigger than SAP, not in the ERP market, but genrally speaking) and Oracle (whose relational database management system powers most SAP installations). But they argue there's a lock-in (it's too costly to switch), and that the others are just as bad. So what do they want to make? A collective-dominance case? It's not clear from what they say publicly.

About ten years ago, I raised concerns over many customers' lock-in into IBM's mainframe technology. But here, it does appear that there are successful migration case studies. All that the VOICE group alleges is that switching costs are so high "that no [chief information officer] would survive" such a decision. What's different from the IBM mainframe case (in which the EU, by the way, ultimately did nothing) is that SAP isn't really doing anything that would make it harder for Oracle or Microsoft to compete in the ERP market--at least I can't find any such allegations on VOICE's part.

Pollitico quotes anti-SAP blogger Shaun Snapp as saying that the general counsel of a typical SAP customer has "no clue" about the exact meaning of the terms of a software license agreement. I don't think antitrust law is meant to make up for the shortcomings of in-house legal departments.

Another argument from the same source comes down to making the exploitation of a lack of sophistication a violation of competition law: SAP offers combination discounts, and according to Mr. Snapp, the average SAP customer's "procurement team [which chooses the vendor] only cares about getting the price down."

I'd have to find out more about the complaints to be able to comment on market definition and the allegations of abusive conduct in more detail. But what they've made public so far is pathetic.

I do wish to stress that copyright is far narrower in scope than patents, so it's simply not like the way SAP factors the use of third-party products in when determining a license fee could in any way be compared to, say, SEP abuse by Nokia and its partners in crime. What Nokia does has very negative implications for automotive suppliers and their direct and indirect customers all the way down to consumers--and those who will likely suffer the most, though they're far smaller and therefore in a weaker position, are all those Internet of Things startups that face shakedown after shakedown from SEP holders. But that's because patents are broad, and a SEP doesn't even have to be broad: just by virtue of being essential to a standard, it can keep someone out of a market (if an injunction gets enforced).

I'm not saying that no one could ever violate the antitrust laws through copyright assertions, but it's like 1,000 or 10,000 times harder to do on that basis than with patents, especially with standard-essential patents, and the allegations those SAP customers make in public fall far short of persuading me that SAP needs to be investigated by the European Commission or the Federal Cartel Office of Germany. I may comment on this again on some other occasion.

In the automotive SEP licensing context, Mrs. Vestager need not feel any conflict of interests: on the bottom line, the digitization of Europe's economy would benefit from component-level licensing, not only with a view to the automotive sector but also considering IoT, so even if it had to happen over Mr. Breton's objection, the Commission should take action, which is overdue now that the fourth SEP injunction has come down against Daimler since mid-August. In the SAP (by coincidence, a difference of just one letter vs. "SEP") context, it appears to me that there simply may not be a case to begin with. Rejecting those complaints is probably just a reasonable application of competition law, as opposed to an inhibition to go after a "European champion."

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Afraid of losing the Android-Java copyright case, Google was looking for patents to countersue Oracle, but failed to find any suitable ones

I just published a detailed fact check that highlights at least ten major untruths Google's lawyer told the Supreme Court on Wednesday. Over the last 24 hours I received information on what was going on inside the Googleplex about four to five years ago. At that stage, Oracle had won its first Federal Circuit appeal against Google (the one over copyrightability), and the case had become a pure copyright case, as Oracle didn't pursue its patent infringement claims on appeal.

There was a lot of concern on Google's part that they were going to lose the "fair use" retrial. So they were asking themselves what they could do to gain leverage.

In the patent litigation context, the way most disputes between companies of the Oracle-Google type end is a cross-licensing deal: if both sides had "nuclear" patents, "mutually assured destruction" would ultimately solve the problem.

I know from a first-rate Google source (which I must protect and which contacted me through non-Google channels) that Renny Hwang, by now Google's patent litigation chief but then already on this case, conducted a search for patents that Google could use to countersue Oracle.

The criteria that Mr. Hwang defined were the following four:

• They had to be capable of inflicting serious damage.

• They had to target Oracle's core business, not just one of the various lines of business Oracle had acquired over the years (such as the MySQL open source database).

• They absolutely positively had to be no search patents, even though Google had identified at least four search technologies in Oracle's offerings that it could have attacked. Google's strongest patents are in search--but with Google being a monopolist in that market, it couldn't seek injunctive relief over search patents without serious antitrust implications. The latter is my explanation--my source just told me that search technologies were off limits, and antitrust is a plausible reason.

• They had to be homegrown as opposed to patents acquired from the likes of IBM. It would have looked bad in the eyes of a judge and, especially, jury if Google had countered litigation over Sun's homegrown IP with patents acquired from third parties.

It turned out Google didn't own any patents that would have met all four criteria at the same time. Therefore, they didn't bring a countersuit.

What my source doesn't know for sure is whether Google was going to sue right away (possibly delaying the retrial by persuading Judge Alsup to consolidate all claims, in which case Google would have told the jury "look, they also infringe on our rights") or, which I actually consider more likely, would firstly have threatened Oracle with a countersuit in an effort to work out a settlement.

I've been able to verify that my source is indeed a person who at the time held a position with Google in which the source would have been likely to be in the know. I try to be careful about "inside baseball" except when it's too relevant not to share with you, my esteemed readers. Earlier this year I broke the news on an EU-ordered patent/antitrust mediation effort between Nokia, Daimler and many of the world's leading automotive suppliers failing. No one has been able to find out who my sources were, but the accuracy of the information was subsequently confirmed.

I wish to reiterate, and elaborate on, something I said in my previous post (the fact check): I have my longstanding positions on this dispute, but there are other contexts, such as the ongoing Epic Games app distribution antitrust cases, in which I believe I'm more balanced than others who would simply blame Google for all sorts of things. Google does many good things, and I actually supported Google's core positions on EU copyright reform last year (in blog posts and by speaking at a couple of demonstrations, including the largest one of all those anti-Article-13 demonstrations). Also, in 2014 I expressed positions during an Apple v. Samsung trial that were definitely closer to Google's than Apple's. In fact, Google paid for the lawyers who successfully defended Samsung against two of Apple's patents-in-suit. And even in connection with Oracle v. Google, I said I wanted Google to win cert, though I was hoping for SCOTUS affirmance unlike everyone else who supported Google's petition.

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Supreme Court inclined to affirm Federal Circuit's copyrightability holding in Oracle v. Google, possibly unanimously--fair use may be remanded

Judge William H. Alsup of the United States District Court for the Northern District of California may go down in history as the only U.S. judge ever to have found that code related to application programming interfaces (APIs) is not copyrightable only because it's related to APIs. Or one of only two judges, should Associate Justice Sonia Sotomayor dissent from what otherwise looks like a unanimous affirmance of the Federal Circuit's copyrightability holding. But even Justice Sotomayor is at best having second thoughts and far from being totally in the tank for Google on this part.

The points that Google's attorney, Thomas Goldstein, made on the copyrightability part were simply ridiculous (he's a fantastic lawyer--the problem is that Google has no non-copyrightability case), and in the first part, every one of the Justices asked questions that suggested a strong inclination to side with Oracle on this part.

There was pretty much a consensus that copyrightability is determined based on the situation when something is written, so the merger and method-of-operation exceptions don't apply if they're basically used as a defense to subsequent infringement (which is where fair use comes into play, but irrelevant to copyrightability). Therefore, Google has no path to victory on copyrightability. Game over in that regard.

I've been saying for about ten years--and this case just celebrated its tenth anniversary in August--that regardless of the Merger Doctrine or any other theory, API declaring code is simply code. The Supreme Court of the United States made it clear today, and will do so in writing. I already considered this outcome quite likely when I looked at a procedural order three months ago.

Words cannot express how much I look forward to the SCOTUS opinion after all of this time and absolutely unjustified attacks. Certain morons will get their comeuppance. But, to be very clear, there are some people who sided with Google on this question whom I respect a great deal. Those people know, or they can figure based on how respectfully I've interacted with them at all times, and because they didn't disparage me regardless of our disagreement on API copyrightability. By "morons" I only meant the unreasonable ones who blamed me in unacceptable ways against the backdrop of what was simply a massive legal error on the district judge's part.

Now, with respect to fair use, the problem is the standard of review because the "fair use" finding was a jury verdict.

Orrick's Joshua Rosenkranz argued that the Federal Circuit applied the "no reasonable jury could have found otherwise" standard, but that the correct standard would be de novo for the legal conclusions that a fair use determination involves.

My feeling is that the Supreme Court may find that the more deferential substantial evidence standard needs to be applied, and that in this case a majority of the justices may very well remand the case to the Federal Circuit. It's also possible that Oracle wins affirmance on "fair use" (especially since a split 4-4 decision would be sufficient for affirmance), but I doubt it. There appears to be some concern among the justices that with all the support Google got from amici curiae warning against the consequences of affirmance they somehow feel they shouldn't decide against what Google managed to present as industry practice and expectation.

Assuming that there is a remand of the "fair use" part, which I consider more likely than the other way round (though nowhere near as certain as affirmance of the copyrightability holding), the Federal Circuit would not be too likely to overrule the jury again. But it would then pick up where it left off last time, and Oracle had strong arguments (that also appeared to get traction with the appeals court) for a retrial. Judge Alsup made some pretrial decisions that unfairly disadvantaged Oracle.

I think is a clear case of unfair use, but I'm like ten times more interested in the copyrightability part, and so happy that this one is going to be clarified for good. I was the only one to openly welcome Google's petition for writ of certiorari despite hoping for affirmance. That's because I'm all about the issues, not about the parties. I wanted the copyrightability part to be resolved for good, and on a nationwide basis. A Federal Circuit decision applying Ninth Circuit law would have been of only limited value--it wouldn't have been binding on anyone, not even on the Federal Circuit itself. The highest court in the land is going to provide definitive clarification that API code is not going to be treated differently from a copyrightability point of view than other program code. It's about original creativity, stupid.

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Supreme Court affirmance of API copyrightability ever more likely--deference to jury (with respect to "fair use") is Google's last line of defense

For a few years I've limited my commentary on the Oracle v. Google Android-Java copyright case to procedural matters, without reiterating the reasons for which I believe the thousands of lines of Java API code asserted in that case are protected by copyright, and their use by Google was unfair. While I agree with Oracle on substance, I did publicly support Google's successful cert petition because I care about the key issues far more than about specific cases.

I'm going to continue to steer clear of arguing the issues. But I am still following the proceedings, and I have bad news for those who hated the Federal Circuit's copyrightability holding: with respect to copyrightability, it looks like Google is more likely than not to lose.

Due to the coronavirus crisis, oral argument was postponed on very short notice in mid-March, and later rescheduled for the next term (October 2020 at the earliest). Then, in early May, the following order was entered:

The parties are directed to file supplemental letter briefs addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard. The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, August 7, 2020.

This is about deference to the jury with respect to "fair use." The jury had found in Google's favor, so this is, per se, a potential Get Out of Jail Free card for Google, and apparently one that a group of law professors had raised in an amicus curiae brief. But it also means Google's non-copyrightability argument is struggling--or may already have failed definitively--to get traction with the top U.S. court for the second time in about six years.

That's simply because the second question ("fair use") won't be reached unless the first (copyrightability) is answered in the negative for Oracle. "Fair use" is a defense to infringement, and you can't infringe what isn't protected in the first place.

It's unclear how many justices proposed the request for supplemental briefing. It might have been only one, but it will have taken support from several others for this order to be entered. There is quite a possibility of multiple justices--potentially a majority--already having concluded that Google can't prevail on its non-copyrightability argument. The hearing was postponed on such short notice that many if not all of the justices are quite informed; at a minimum, their clerks had concluded their analysis at that stage.

If the Supreme Court answered the "fair use" question in Google's favor on the basis of jury deference, it might or might not discuss the standard for software copyrightability in detail. Whether the Federal Circuit's copyrightability holding would be affirmed explicitly or (by reaching "fair use") mostly implicitly, the copyrightability of API code would continue to be a reality in the United States.

In the same scenario (and I'm not suggesting that it's likely--the fact that the SCOTUS requests additional briefing doesn't mean it will necessarily agree with Google on jury deference), those opposing the protection of API code under copyright law wouldn't really make headway beyond this particular case (and even in that one, there'd simply be a remand to the Federal Circuit). It would be a procedural decision, centered around the standard of review, far short of agreeing with Google's "fair use" defense in its own right--and next time a different jury, ideally instructed by a different (more balanced) judge, might simply find otherwise. It wouldn't be precedential with respect to the substantive issue.

After Oracle won the first of two rounds in the Federal Circuit (with Orrick Herrington Sutcliffe's Joshua Rosenkranz as lead counsel), Google already requested certiorari, but the Supreme Court declined. That fact, combined with the May 4, 2020 order that implies copyrightability, suggests quite strongly that Google is facing an uphill battle in that regard.

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Procedural implications of Google obtaining certiorari for its appeal of Oracle's Java-Android copyright victory

Last January (2019) I wrote that I wanted Google to be granted certiorari (Supreme Court review) of Oracle's copyright win(s) in the Federal Circuit, but I also made it clear I wnated affirmance (no surprise to anyone who knows what I wrote about the case in previous years). The first wish has come true: on November 15, Google's petition for writ of certiorari was indeed granted.

I'm not going to reiterate positions on the merits that I'm tired of repeating. A while ago I stopped doing that, and instead I just wish to talk about procedures.

Google's cert petition had two parts: copyrightability and "fair use." The Supreme Court sometimes grants petitions with respect to only one question. Copyrightability was already raised years ago (but at an interlocutory stage) and that petition was denied. Now the top U.S. court will look into both questions, which is a good thing given the importance of the issues.

If Google prevails on copyrightability, the case is over. I can't imagine that a conservative Supreme Court majority would disagree with Oracle on the standard for copyright protection, for the reasons I stated on many past occasions. But if it happened, Oracle would have no case.

Assuming that Oracle defends its copyrightability win, the case will then hinge on "fair use." Here, Oracle needs affirmance of a judgment as a matter of law (JMOL) that the Federal Circuit found Judge Alsup in San Francisco should have entered (but didn't, as he did hardly anything throughout the years that didn't disadvantage Oracle).

Google's "fair use" opportunity is that U.S. courts generally afford immense deference to jury verdicts. The standard for JMOL is very high. I still believe, as my longstanding readers know, that JMOL was perfectly warranted here. If the Supreme Court views it the same way, after affirming copyrightability, then the case will go back to the trial court for a determination of remedies. In that context, it may just be about damages. Oracle could seek an injunction, but Google has meanwhile changed its open-source licensing strategy for Android.

There's also a possibility--and it's at least the second-most likely outcome--of the Supreme Court affirming copyrightability but vacating JMOL on "fair use." Theoretically, the court could make it sound like Google, not Oracle, would have been entitled to JMOL on "fair use"--but that's something I absolutely can't imagine. What might happen, however, is that the court finds the jury wasn't entirely unreasonable. In that case, the matter would be remanded to the Federal Circuit first. Based on what the Federal Circuit found, there can be no reasonable doubt that a re-retrial on "fair use" would be ordered. The Federal Circuit would address at least some of the ways (more than Oracle could have raised even in three appeals) in which Judge Alsup's decisions prejudiced Oracle. So the re-retrial would take place on terms more favorable to Oracle than the last two "fair use" trials in this case.

This case has been going on since August 2010. It started when this blog was only a few months old. Next April (2020), this blog will turn 10, and we'll probably just have seen Google's Supreme Court opening brief by then...

Orrick, Herrington & Sutcliffe's Joshua Rosenkranz is still Oracle's appellate counsel. Each time he defeated a Google lawyer on appeal (the first one was Robert van Nest, the trial counsel), Google fielded someone else. My bets are on Mr. Rosenkranz again because he's incredibly effective--and the higher the court, the better for him.

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Fair licensing terms for content to be focal point in transposition and application of EU Copyright Directive: statement by German government

On Monday of last week (April 15), the EU Council--the decision-making body in which the governments of the 28 EU member states cast their votes--adopted the arguably most controversial piece of EU legislation ever, the Directive on Copyright in the Digital Single Market, commonly referred to as the EU Copyright Directive. To do so about six weeks prior to EU Parliament elections was as arrorgant as it was unwise. While skepticism of the EU was traditionally more of a right-wing concern, the mostly left-leaning and mostly young people who opposed Article 13 (which became Article 17 and is generally known as the "upload filter" paragraph) could not have been more disappointed. They still say and write that they believe in "Europe," mostly because they fail to understand economic and other issues (see this Wall Street Journal article entitled "Incredible Shrinking Europe" on the EU's miserable economic failure), but they've lost a lot of their faith in the EU institutions.

If there had been a similar level of public debate and street protests across the EU as in Germany, Article 17 wouldn't have secured a qualified majority in the Council or a simple majority in the European Parliament. But for a mix of reasons I can't claim to have fully understood yet, concerns about overblocking of legitimate user-generated content were more of a luxury problem of the North than an issue that would also have mobilized people in the economically and technologically weaker South. Smartphone usage isn't lower in the South, but there are some discrepanices such as with respect to digital startup activity. Even France is far behind; Macron's "Startup Nation" is a case of all hat and no cattle, like pretty much everything he does and wants. He's a walking, talking failure, and the more he fails, the more he walks and talks. But he did get the Merkel administration to engage in a horse trade that also involved the Nord Stream 2 gas pipeline.

No political party will pay as dearly for this as the Social Democratic Party of Germany (SPD). In EU elections polls, its support among 18- to 24-year-old first-time voters was cut in half just during the month of March (toward the end of which the European Parliament adopted the proposed directive). What affects the SPD's reputation more than anything else is that YouTubers and other Article 17 opponents rightly accuse the party of hypocrisy: on the one hand, the SPD spoke out against upload filters; on the other hand, it's part of the government coalition that ultimately voted for them in the EU Council, where Germany has several times more voting weight than what would have been required, on top of nine other countries that opposed (also including abstentions, which have the same effect there as voting against).

In a futile attempt--so futile it just serves to underscore the growing disconnect between career politicians and voters in the Internet era--to mitigate the impact on this, the SPD-led Federal Ministry of Justice insisted on attaching a long-winded, legally non-binding declaration to the EU Council decision. That declaration didn't change public sentiment in Germany. For an example, a leading YouTuber, Herr Newstime, said it wasn't worth the paper it's written on. However, the purpose of this post is to take a more analytical approach to that declaration since it will have some political weight and even potentially influence legal interpretations of the new directive going forward.

The EU Council's English translation of the German government's statement is the final part of this updated Council document. Such non-binding declarations can serve multiple purposes:

• to voice dissent;

• to apologize for doing something unpopular, such as by emphasizing one's good intentions in a bad context;

• to make political demands and take positions that are indirectly related to the measure in question;

• to propose certain aspects of national implementations of the directive (EU directives must be transposed into national law by the member states, giving them some--though limited-wiggle room); and

• to influence the future interpretation of the text by courts of law.

The German government did a mix of all of that with its April 15 statement. What's most relevant here is that the German government makes multiple references to the need for copyright holders (without making a distinction there between collecting societes, which due to their market power often fall under antitrust rules, and individual right holders) to be cooperative and reasonable in their royalty demands. Otherwise, platforms would face a very difficult situation given the directive's utterly unreasonable "best efforts" requirement with respect to licensing--a term that reflects the unbalanced nature of what the EU institutions, under the negative influence of French thought leadership, came up with. The many U.S. lawyers reading this blog (a majority of the readership) would almost certainly advise their clients against ever committing to "best efforts" in any contractual provision...

We're now basically going to have to talk about FRAND (fair, reasonable and non-discriminatory) licensing terms in the copyright context. The "ND" part will be officially part of the equation whenever right holders have a dominant market position; in all other cases, it will effectively be considered as part of what terms are fair and reasonable.

These are the various references the German statement makes to fair and reasonable licensing terms and generally cooperative behavior by copyright holders:

• In paragraph 9: "For all other uses platforms should acquire licences, if available relatively easily and for a fair tariff." (emphasis added)

• In paragraph 10: "Workable solutions for obtaining licences must be found. Although requirements which are unreasonable in practice cannot be imposed on platforms, it is necessary to ensure that efforts to obtain licences are combined with fair offers of remuneration." (emphases added)

  The final part ("are combined with...") is an awkward wording for saying that right holders must also do their part and make fair offers, but to the EU Council's translators' credit, this is a context in which it's better to stay close to the original text than to take the libertie necessary to phrase it more elegantly.

• In paragraph 11: "the obligation to conclude contracts on reasonable terms" (emphasis added)

Those are, effectively, references to a FRAND licensing framework. Note that it's not just about royalty amounts but also about the overall terms and conditions, including accessibility ("available relatively easily").

Instead of stressing this now, the German government should have blocked the directive in the Council until a FRAND licensing requirement would have been incorporated into Article 17 (formerly known as Article 13), but at least they're aware of the problem the EU has potentially created and they're trying to address it--better late than never.

Below I'll finally go over the statement paragraph by paragraph and analyze it from a political as well as a legal angle.

1. The German Federal Government agrees with the proposed Directive on copyright and related rights in the Digital Single Market (hereinafter: ‘the Directive’) in the version set out in the trilogue compromise of 13 February 2019, because the reform as a whole achieves urgently needed adjustments to the outdated European legal framework, such as the provisions on text and data mining, out-of-commerce works and contract law for performers.

COMMENT: This is just apologetic. It's another way of saying "we know Article 17 sucks, but everything else is so great and couldn't possibly have been delayed." The reference to provisions on text and data mining is ridiculous, given that the EU directive leaves a lot to be desired in that area, too (which like Article 17 will further weaken Europe in the digital economy, where the EU already is a big-time failure).

2. At the same time, the German Federal Government regrets that it was not possible to agree on a concept for the copyright responsibility of upload platforms that could be broadly supported by all parties. There is widespread consensus that creatives should participate in the exploitation of their content through upload platforms. However, in particular the obligation provided for in Article 17 of the Directive to ensure the permanent ‘stay down’ of protected content and the algorithm-based solutions (‘upload filters’) likely to be used in this context have met with serious reservations and widespread criticism from the German public. The vote in the European Parliament on 26 March 2019 also revealed the huge gulf between supporters and critics.

COMMENT: Here they acknowledge that it's an unpopular measure and seek to make the rest of Europe aware of the fact that this part is going to be problematic. But judges are unlikely to give consideration to public sentiment: their job is to interpret the text as it stands, not to legislate from the bench.

3. The focus of our efforts is on performers, authors and ultimately all creatives who naturally make use of the new tools that digitisation and connectivity provide for creative work. The German Federal Government is of course not questioning the need to protect creative work on the internet, and to ensure creatives receive appropriate remuneration for such work.

COMMENT: That third paragraph is meant to placate the lobbying entities representing artists and performers (though most of the time they actually represent publishers rather than individual creators).

4. Under Article 17(10), the European Commission is required to conduct a dialogue with all interest groups concerned in order to develop guidelines for the application of Article 17. The provision explicitly calls for a balance to be maintained between fundamental rights and the possibility of using protected content on upload platforms within the framework of legal authorisations. The German Federal Government therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market. On the basis of this declaration, the German Federal Government will participate in this dialogue.

COMMENT: The only positive aspect of that fourth paragraph is that the German government promises to go into the further EU process (working with the Commission to develop implementation guidelines) on the basis of its April 15 declaration. And by expressing concern over divergent national implementations they acknowledge that Article 17 is too vague (although it is, if one includes the relevant recitals, almost as long as the original version of the U.S. Constitution...). Other than that, that paragraph adds nothing new, nor does it influence future interpretation.

5. Where technical solutions are used at all in that connection, the data protection requirements of the General Data Protection Regulation must be adhered to and the EU should encourage the development of open-source technologies with open interfaces (APIs). Open-source software guarantees transparency, while open interfaces ensure interoperability andstandardisation. This can prevent market-dominant platforms from further consolidating their market power by means of their established filtering technology. At the same time, the EU must develop concepts that counteract a de facto copyright register in the hands of dominant platforms by means of public, transparent notification procedures.

COMMENT: The fifth paragraph was obviously inspired by a prior statement by Germany's Federal Commissioner for Data Protection and Freedom of Information, Ulrich Kelber. However, it's hard to see how this part of the government's statement would have any real-world impact. They can "encourage" platforms to use open-source software, but they won't be able to impose such a requirement--and Internet companies generally make their own technology choices (which quite often are open-source solutions) regardless of what some European governments "encourage" them to select. It's a pointless paragraph.

6. First of all, the requirements laid down in Article 2(6) of the Directive must be addressed and clarified, since the rules are aimed solely at those market-dominant platforms which make large quantities of copyright-protected uploads accessible and which base their commercial business model on such a practice, i.e. services such as YouTube or Facebook. At the same time, we will make it clear that services such as Wikipedia, university repositories, blogs and forums, software platforms such as Github, special-interest offers without any connection to the creative industry, messenger services such as WhatsApp, sales portals or cloud services are not platforms within the meaning of Article 17. In addition, we will ensure an exemption for start-ups.

COMMENT: That paragraph is the most nonsensical one in the whole statement. I wonder how anyone can write something so obviously stupid with a straight face. Exceptions like Wikipedia and Github are already in the directive, and the "exemption for start-ups" mentioned at the end of that sixth paragraph exists as well, but is far too narrow a carve-out to be useful.

7. Furthermore, it is clear that upload platforms should continue to be available as free, uncensored communication channels for civil society in the future. Article 17 (7) and (8) stipulate in that connection that protective measures for upload platforms must not impede the permitted use of protected content. We are particularly committed to this because upload platforms are also a springboard for creatives, enabling them to reach a worldwide audience without a publisher or a label.

COMMENT: This merely states a motivation for ensuring that overblocking of legitimate user-generated content should be prevented, without proposing any particular solution. Roughly as stupid and pointless as the previous paragraph.

8. The aim must be to make the ‘uploadfilter’ instrument largely superfluous. Each permanent ‘stay down’ mechanism (‘uploadfilter’) must comply with the principle of proportionality. Procedural guarantees, in particular, could be considered, for example when users notify that they are lawfully uploading content from third parties. In these cases the deletion could not be performed automatically, but only after a check by a person. At the same time, the proprietorship of any content that has to be removed should be sufficiently proven, unless the information comes from a ‘trusted flagger’. In all events the platforms must guarantee easy access to a complaint mechanism for solving contentious cases effectively and as rapidly as possible.

COMMENT: The idea of users being allowed to indicate that they are convinced of their content being lawful is not bad. However, the practical issue is going to be that platforms are rarely sued by users who wish to publish content (it does happen, particularly in Germany, but rarely) and face much more of a threat from right holders. The eighth paragraph makes a valid point, but a workable situation is not in sight.

9. In addition, the use of protected content on upload platforms for criticism or reviews, for caricatures, parodies or pastiches, or even in the context of the ‘quotation barrier’, is permitted and free of charge. In such cases the rightholder does not suffer any economic loss anyway. For all other uses platforms should acquire licences, if available relatively easily and for a fair tariff. We will examine how the fair participation of creatives in this licence revenue can be guaranteed through direct payment claims, including in those cases where the label, publisher or producer have the exclusive rights. It is also necessary to guarantee an appropriate remuneration for any new content created on upload platforms and used for commercial purposes. Above all, the proceeds from uses on upload platforms that are desired for political reasons must also reach the creatives themselves.

COMMENT: This is the first one of the three paragraphs that make reference to FRAND licensing terms. Most of the emphasis here is on how to ensure that payments reach individual creators as opposed to just their publishers. However, the EU Copyright Directive generally weakens creators vis-à-vis publishers. Also, it won't be easy to avoid double recovery in this context.

10. Article 17 aims to monetise the use of protected content on upload platforms and to ensure appropriate and fair remuneration for authors and performers. The German Federal Government shares this goal. In the European compromise, licensing is the method chosen to achieve this. Article 17(4) provides that, in order to fulfil their responsibilities, upload platforms must have ‘made best efforts’ to obtain licences. This will be crucial in the implementation of this provision. Workable solutions for obtaining licences must be found. Although requirements which are unreasonable in practice cannot be imposed on platforms, it is necessary to ensure that efforts to obtain licences are combined with fair offers of remuneration.

COMMENT: The tenth paragraph is the very best, most useful and most meaningful paragraph; maybe it would have been better if the German government had just made a short and focused statement consisting mostly of this one instead of hiding such a gem in a longwinded, mostly meaningless statement.

11. In order to resolve this issue – of how licences can, as far as possible, be concluded for all content on upload platforms – copyright law provides for many other mechanisms besides ‘traditional’ individual licensing (e.g. exceptions and limitations, possibly combined with remuneration rights; the option of converting exclusive rights into remuneration rights; the obligation to conclude contracts on reasonable terms; and the involvement of associations of creative artists such as collecting societies).

COMMMENT: The open-ended nature of this 11th paragraph shows that the German government either hasn't fully analyzed the feasibility of different approaches or hasn't been able to reach an internal agreement on which way to go. The reference to "exceptions and limitations" is consistent with a position paper put forward by the digital policy experts of the Christian Democratic Union (Merkel's party). However, the SPD appeared to be unconvinced of its compatibility with EU law, which is understandable since EU law provides for only a limited set of limitations to and exceptions from copyright law.

12. The Federal Government will examine all of these models. Should it appear that the implementation has led to a restriction of freedom of expression or should the guidelines set out above encounter obstacles in EU law, the Federal Government will work to ensure that the shortcomings identified in EU copyright law are corrected.

COMMENT: This vague promise of amending the directive reflects a significant degree of uncertainty as to what the ultimate impact will be. However, the EU is not particularly good at admitting mistakes. Typically, it just blames citizens. Nevertheless, the EU Copyright Directive could be an exception where a legislative initiative to amend the bill may be taken relatively soon. There are politicians who have spoken out in favor, including the Free Democratic Party's top-listed candidate Nicola Beer--and the FDP is reasonably likely to be part of a post-Merkel government. Also, Manfred Weber, a politician from the CDU' sister party (the Christian Social Union) and the European People Party's candidate for the presidency of the EU Commission, also stated in a recent TV interview that he, in his potential capacity as Commission president, would push for a legislative amendment should "censorship" occur as a result of Article 17.

All in all, the German government's statement isn't too bad. There's a lot of nonsense in it that just distracts from the more interesting and relevant parts. But I do like the references to fair and reasonable licensing terms and easy access to such licenses, as well as the commitment to look for ways to obviate upload filters to the greatest extent possible--and while I'm not too hopeful about that, I do appreciate the fact that the statement leaves the door open to a near-term amendment.

I do not plan to comment on the further process (transposition into national laws and subsequent litigation) on this blog. Since February I've blogged about the EU copyright reform process on various occasions because it was the most interesting and important legislative process concerning intellectual property in many years, but the focus of FOSS Patents will remain on patents and antitrust, and copyright only to the extent it is asserted against mobile device makers or app developers. I may, however, set up a separate copyright blog at some point.

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