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Software Copyrights in Crisis

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

By Jonathan T. Kaplan, Esq.

Software has been in the legal IP spotlight for the past several years, both with respect to patents and copyrights.  The dividing line between patents and copyrights may seem simple, at first glance: patents protect the way software functions (if the functionality is new and unobvious), while copyright protects a particular way in which that functionality has been expressed (if that expression is the original work of an author, and reflects a minimum level of aesthetic creativity).

It may seem strange to some that copyright, which was originally developed to protect such things as novels, paintings, and sculpture, should even be applicable to software.  Yet software is written in a kind of language, albeit quite different from human (or “natural”) language, and our copyright laws, since 1980, have included specific statutory language to provide at least some level of protection for it.  Congress tasked the courts with determining the precise contours of that protection, and there has been complex litigation on the issue ever since.

There is no disagreement that literal copying should not be permitted.  For example, if someone has written a complex software program, and someone else decides to simply copy it exactly, word for word (or, more precisely, symbol for symbol), this should not be permitted.  However, determining the extent of the software copyright becomes complex when at least some of the copying is nonliteral.

Clearly, at least some amount of nonliteral copying must be accommodated, if copyright is to provide any meaningful level of protection.  Otherwise, for example, someone could change just a few lines of code, out of the thousands of lines of code in a complex program, and then be able to use it without fear of copyright infringement.  But how far should this principle be applied, and how can it be defined in a way that is clear, to both the copyright holder, and those who wish to create new expressive works?

This is the issue at the focus of Oracle v. Google, a case that was tried in the Northern District of California in 2012, and was recently the subject of a Court of Appeals decision in May of this year.  The technological subject of the case is the Java programming language, originally released by Sun Microsystems in 1995.  Oracle acquired all rights to Java when it acquired Sun in 2010.

In order to encourage the widespread adoption of Java, Sun made the language freely available, for anyone to use.  However, along with the language itself, Sun also provided libraries of preprogramed functionality, over which it retained control.  In Java parlance, a library is called a “package.”  Since Java is an object-oriented language, a package consists of one or more classes, and a class provides one or more methods.  It is this organization, of packages, classes, and methods that is often referred to as the Java “Application Programming Interface” (or API).  According to the District Court opinion, by 2008 the Java API provided 166 packages.

While not formally part of the Java language itself, at least some of the API packages have been part of the Java platform for a long time (some since the very beginning).  As such, their presence has come to be expected by experienced programmers of Java.  Also, the classes and methods of such packages have been written into a large number of Java programs.

When Google began developing its Android operating system for smart phones in 2005, it wanted to base it on the Java language.  Licensing negotiations between Google and Sun failed to reach agreement, but Google decided it could use the Java language anyway.  To avoid copyright infringement, while still providing Java programmers with at least some of the packages they had come to expect, Google devised the following approach.  For certain packages, it would duplicate the overall structure of its classes, and methods.  The Java code for implementing each method, however, would be totally re-implemented by Google.  Despite being expressed differently, however, Google made sure that the method code was functionally identical to the corresponding method of the Java API.

The net result of Google’s efforts can be summarized as follows.  Of Java’s 166 API packages, Google decided that they only really needed to provide Android programmers with 37 of them.  Further, because they re-implemented each method, only about 3 percent of the total lines of code, of Google’s 37 packages, were the same as (or very similar to) a line of code in a corresponding Java package.

In 2010, shortly after acquiring Sun, Oracle filed suit against Google for copyright infringement by its Android OS (patent infringement was also alleged, but the copyright part of the case is much more interesting, and is the focus of this article).  In a decision dated May 31, 2012, the trial court (Federal District Court, Northern District of California in San Francisco) decided that Oracle’s organization of 37 packages, along with their classes, and methods, did not represent the kind of creative expression that is protectable by copyright.  This appeared to be a spectacular win for Google, until Oracle appealed the decision.  In an opinion dated May 9, 2014, the Court of Appeals for the Federal Circuit (or CAFC) reversed the trial court’s ruling, finding that such structure is protected by copyright.

Now Google is now seeking review by the Supreme Court, via a Petition for Certiorari filed on Oct. 6 of last month.  Google’s Petition states, among other things, that prohibiting the kind of copying represented by Android will hinder innovation.  For its part, Oracle states that it is just trying to protect its investment in software development, and that such protection is necessary, to spur the extra expense of being a marketplace innovator.

Supreme Court review of any case is purely voluntary, and many in the legal IP community are waiting, with great anticipation, to see whether the Supreme Court will decide to address this issue.  As is often done with cases of this import, the Supreme Court is currently accepting “friend of the court” (or amicus) briefs, from third parties, on the question of whether it should review the CAFC’s decision.  Even if the Supreme Court does not accept review, the case will be far from over.  Although it found copyright infringement, the CAFC also ruled that Google’s infringement may still be excusable under a doctrine called “fair use.”  The CAFC ordered the case back to the trial court, for re-trial on this question (the Jury in the 2012 trial deadlocked on this issue).

Stay tuned, for more exciting developments to come!

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