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Software Copyrights in Crisis, Part 2

High courts wrestle with limits of copyright, as a protection for software.

By Jonathan T. Kaplan, Esq.

The software copyright case of Oracle v. Google rolls on, with the Supreme Court actively considering whether to hear Google’s Petition to review the case. Just to very briefly summarize the case (for more information, please see my last post on the topic), Oracle sued Google in 2010 for use of Java’s libraries, of preprogrammed functionality, when Google developed its Android operating system for smart phones. In Java terminology, such libraries are called “packages,” and the collection of packages, that Oracle provides with Java, is called the Java “Application Programming Interface” or API. Oracle lost its suit, after a trial on the merits in 2012, in the Northern District of California (the “District Court”). But then, in a stunning reversal, Oracle won on appeal, in an opinion dated May 9, 2014, from the Court of Appeals for the Federal Circuit (CAFC). However, this story is far from over, with Google seeking review of the CAFC decision, by the Supreme Court, in a Petition for Certiorari it submitted, in October of last year.

Currently, the Supreme Court actively considering, whether it will accept review of the case. As part of its decision making process, the Supreme Court accepted, in November and December of last year, “friend of the court” (or amicus) briefs, from third parties, on the question of whether it should review the CAFC’s decision. On December 8, Oracle filed its brief in opposition to Google’s Petition. On December 23, Google filed its reply brief, to Oracle’s opposition brief. In an indication of how seriously the Supreme Court is considering Google’s request, on January 12 of this year, the Supreme Court asked the Solicitor General to file a brief expressing the views of the United States, and the court is currently waiting for the Solicitor General’s response.

Understanding the scope of software copyright is often a “mind-bending” experience, given the contradictory directives of the copyright law itself.

Section 101 of US copyright law contains two key definitions (emphasis added):

  • A “computer program” is defined as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.”
  • The term “literary work” is defined very broadly, to include a work “expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects … in which they are embodied.”

The Congressional record, regarding the Copyright Act as modified in 1976 and going forward, makes it clear that these above definitions are intended to place computer software under the category of “literary work.”

Section 102(a) of the copyright law establishes the basic grant of copyright protection. It states, among other things, that “literary works” are protected under copyright if they are “original works of authorship fixed in any tangible medium … from which they can be … communicated … with the aid of a machine or device.”

The real tension in software copyright then arises from Section 102(b), which places an important limit on 102(a): “In no case does copyright protection … extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

Section 102(b) is often described as expressing what is called the “idea/expression dichotomy.” The basic idea of this dichotomy is that ideas are not protectable by copyright, only their expression. The idea/expression dichotomy is viewed as the foundational basis for keeping copyright protection distinct from patent protection: if protection of the way something functions is desired, it is to be obtained, if at all, through patent and not copyright.

With traditional literary works, understanding the dividing line between 102(a) and 102(b) is a lot easier. Essentially, it is saying that if an author chooses to describe a new process for doing something, such as a new kind of accounting system, the author is only entitled to a copyright in the particular way the author has chosen to explain the process. Unless some other form of intellectual property protection can be obtained (e.g., patent protection), practice of the new process itself, by others, cannot be prevented by the copyright.

However, with software, there is a kind of inherent merger, between description and implementation of the process described. This is due to the dual-nature of software: it is both a means of communication between persons (including between a programmer and herself, as she writes code), and is also a very precise vehicle for instructing the behavior of a machine.

While both sides in Oracle v. Google recognize that software is entitled to some level of copyright protection, predictably, the essence of both side’s argumentation differ, depending upon whether Section 102(a) or 102(b) is emphasized.

Oracle focuses on the grant of copyright protection by Section 102(a), and on the policy reasons for providing property grants to creative works. These policy reasons include incentivizing their creation, and distribution. Google focuses on the important limits, on that property grant, resulting from Section 102(b), and on the policy reasons for not letting the property grants become too broad. The policy reasons stated focus mainly on preventing undue restriction of competition.

The dual nature of software, combined with unique qualities of the Java language itself (at least with respect to the technologies considered in earlier, foundational, copyright cases), seem to be important sources, for the difference of opinion between the District Court and CAFC.

For a detailed discussion of the unique qualities of the Java language, and how they are effecting the court decisions in this case, please stay tuned for my next post.

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