Last week, the Solicitor General of the White House weighed in on Google’s request for the Supreme Court to overturn the Federal Circuit’s ridiculously confused ruling in the Oracle/Google case concerning the copyrightability of APIs (and whether or not repurposing them is fair use). Not surprisingly, as the Solicitor General has been siding with Oracle all along, it suggests that the Supreme Court not hear the case. Of course, it does so by completely misrepresenting what’s at stake in the case — pretending that this is about whether or not software source code is copyright-eligible:

This case concerns the copyrightability of computer code. To induce a computer to perform a function, a person must give the computer written instructions. Typically, those instructions are written in “source code,” which consists of words, numbers, and symbols in a particular “programming language,” which has its own syntax and semantics. The source code is then converted into binary “object code”—ones and zeros—that is readable by the computer.

It is both “firmly established” and undisputed in this case that computer code can be copyrightable as a “literary work[].” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2A.10[B] (2019). Section 101 defines a “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. 101. And various Copyright Act provisions recognize that a person may own a copyright in a “computer program.”

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Annette Hurst, prior to this nonsense, was fairly widely respected intellectual property lawyer and a big time partner at Orrick, one of the largest law firms in the world. She’s been involved in some big copyright cases in the past, such as the famed Mattel v. MGA case (she was on the right side of that one) and also in the important Kirtsaeng case in which she again represented the correct side.

However, when it comes to the Oracle case, she seems to jump in to argue things that are blatantly ignorant of how software actually works. You may recall, after the jury in the district court found that Google’s use of the Java APIs were fair use, she laughably insisted that it would kill open source software because it meant software source code couldn’t be opened up any more. Except, once again, she was totally confusing an API with executable software code.

Years on, and she’s still not just confused, but actively misrepresenting things. Famed and well-respected litigator and law professor Mark Lemley called out the Solicitor General’s “indefensible” statement that Lotus v. Borland does not conflict with this ruling, and Hurst responded dismissively:

Mark Lemley @marklemley
· Sep 27, 2019
Replying to @marklemley

including that the decision doesn’t conflict with Lotus v Borland and that “petitioner does not contend that the court of appeals’ fair-use decision conflicts with the decision of any other court.” 2/2https://www.supremecourt.gov/DocketPDF/18/18-956/117359/20190927165110897_18-956%20Google.pdf …