‘Slavish’ copyist or fading giant — dueling narratives in play with Cisco-Arista copyright trial set to start

First published on MLex Digital Risk 25 November 2016. By Mike Swift.

Lawyers for Cisco Systems and Arista Networks will present a jury with two starkly different images as they face off Monday at the start of a copyright trial that will be closely watched in Silicon Valley and could be the prelude to a future antitrust battle between the companies.

In Cisco’s telling, Arista is a “slavish” copyist with duplicitous executives who decided to lift hundreds of lines of Cisco’s proprietary command line interface instructions, which route data through the Ethernet switches that are the neurons of the Internet. Arista’s goal? To use Cisco’s own creation to take its customers, it will tell the jury.

In Arista’s countering narrative, Cisco is an incumbent wanna-be monopolist with legacy products that cannot compete with its newer, superior technology designed for state-of-the-art cloud computing. Cisco, Arista will tell the jury, is a fading giant forced to use the courts to artificially preserve its market dominance.

Cisco will be seeking at least $500 million in damages, but its general counsel, Mark Chandler, told MLex that injunctive relief is key.

“What I want them to do is stop and compete with us on features they create on their own, and not on what they copied from us,” Chandler said.

Arista declined to comment on the record.

Opening statements in what is should be at least a two-week trial before US District Judge Beth Labson Freeman in San Jose, California, are expected Monday. Themes in the Cisco-Arista case will echo those in this year’s copyright trial in San Francisco between Google and Oracle over the Android mobile operating system, including whether copying of blocs of software is legal under the doctrine of fair use. Among the debated issues were how much copying constitutes an excessive amount, and whether copying a popular computer language to help make a new and competing technology platform more attractive can still be fair use.

Even some of the high-powered legal talent in the Cisco-Arista trial will be the same as in Google-Oracle. Robert Van Nest of the firm Keker and Van Nest, who successfully defended Google in the Android trial, will lead Arista’s defense in this trial.

Across the aisle representing Cisco will be Kathleen Sullivan and David Nelson of the firm Quinn Emanuel Urquhart & Sullivan. Sullivan is a formidable appeals specialist who recently argued for Samsung before the US Supreme Court against Apple’s $399 million design patent damages verdict.

Just as the software industry closely watched the Google-Oracle case to see whether it would lead to limits on the copying of application programming interfaces, or APIs, Silicon Valley’s networking industry will be closely watching the Cisco-Arista trial.

One key difference from Google-Oracle, however, is that while Oracle’s Java language runs on laptops and does not compete directly with Google’s Android, the CLI commands and Ethernet switches at issue in the Cisco-Arista trial are direct competitors.

The trial may get a little personal, with both companies fighting over whether top executives, such as Cisco Executive Chairman John Chambers. would have to testify. (US Magistrate Judge Nathanael Cousins ruled he would)

Many of Arista’s founders and executives are former Cisco executives, and Cisco plans to use their statements to undermine Arista’s fair use defense. One example is a public statement by Arista Chief Technology Officer Ken Duda, formerly with Cisco, who said the company copied Cisco’s CLI to ease “the transition” of customers buying its products.

“We actually copied it slavishly,” Duda said, speaking of Cisco’s CLI commands, in recorded comments the jury is sure to hear. “You know, it’s like, even the things we thought were really silly, we went ahead and copied them anyway, because we wanted it to be as seamless an experience for our customers as possible.”

Arista, meanwhile, will point out that many networking companies such as Brocade, Dell, Juniper Networks and Huawei also use the same Cisco commands.

Arista is likely to argue that it copied only a miniscule, 4 percent share of Cisco’s body of CLI commands. Its lawyers are expected to present evidence that Dell uses more than 1,000 identical CLI commands and to say that Cisco never went after Dell or others because those companies haven’t eroded its market share as Arista has.

Cisco is expected to counter that the amount of overlapping CLI commands used by competitors such as Brocade, Alcatel-Lucent, Juniper Networks and Extreme is dramatically less than Arista copied.

“Arista’s executives and engineers undertook a deliberate and willful campaign to ‘slavishly’ copy as much of Cisco’s user interfaces as possible,” Cisco said in its trial brief.

In denying summary judgment motions from both companies in August, Labson Freeman said significant questions of fact remain over whether the Cisco CLI was copyrightable and whether Arista infringed Cisco’s copyright and a patent at issue in the case.

An overarching issue central to both the copyright and antitrust cases will be the degree to which Cisco’s CLI could be considered a networking “standard.”

While Arista will contend that Cisco encouraged others to adopt its commands, promising to not lock them into its hardware, Cisco will argue its CLI is nothing like technology standards, such as 3G, that have been adopted by international standards bodies such as IEEE. At a hearing in September, Cisco moved to block an Arista expert witness from testifying that Cisco’s CLI was a “de facto” industry standard.

Arista’s witnesses are expected to tell the jury that it is “entirely fair” to build switches that understand common elements of a language widely used in the networking industry. “To hold otherwise would convey upon Cisco a stranglehold on competition that is unrelated to the purpose or scope of the copyright it received,” Arista said in its trial brief.

Labson Freeman denied Arista’s request to try its antitrust allegations in the copyright case, forcing the company to file a separate antitrust suit against Cisco in February.

In Cisco’s view, those antitrust claims evaporate if the verdict in the copyright trial is that Arista infringed.

“It’s like sneaking into a ballpark and then complaining about your seat. You just can’t do that. Our view is that the antitrust case will be irrelevant and will go away when Arista is found to infringe,” Chandler said.