A Legal Blog by Aaron | Sanders, PLLC


Google v Oracle (Part 3): Why Copyright Is a Bad Fit for Software

NOTE: This is the third (and final) in a series. Part 1 is here. Part 2 is here. See Part 1 for my sources for information about the trial.

But it’s All We’ve Got

After two trials, one appellate reversal, another appeal on the way, millions on millions of dollars in attorney’s fees, thousands on thousands of attorney hours, thousands on thousands of pages of testimony, and we are no closer to understanding whether, and when, APIs are copyrightable? Wasn’t that the whole point?

Precedent, Bright Lines & Justice

Lawsuits are often disappointing to interested observers, even when their “side” wins. Lawsuits resolve disputes between parties. They only incidentally—and haphazardly—make law. Courts make law through precedent, which means a lower court cannot diverge from a “holding” of the court. By definition, trial courts, like the one that just heard Oracle v. Google fair use trial, cannot make law, since there are no courts below it. Still, decisions rendered by trial courts can still be powerful “persuasive” authority. Another trial court, faced with a lack of precedent, can read how other trial courts handled the question and say, “That looks like the right way to handle it.” They can also say, “No, that’s…

Coding as art? (From Oracle's slides used in its closing arguments.)

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Federal Circuit Feeds Us Some Humble Pie: Oracle v Google Reversed

Humble Pie Taste Like Sawdust but at Least it’s High in Roughage

It’s fair to say that I was a little bit invested in the district court opinion in Oracle v. Google. I really thought it was a great opinion, thought it really helped clear the air about the vexed issue of copyright protection for computer programs—and I said so, both in a published article, and in a multi-part blog post (starting here).

So when it became clear that the Federal Circuit Court of Appeals was set to reverse the decision, I had to resist getting defensive. While my Twitter feed exploded, mostly in outrage, at the actual reversal, I put off reading the decision until I could read it fairly. The Federal Circuit might have been reversed by the Supreme Court five times out of five this year, on the very subject (patents) it is supposed to be an expert on, but that doesn’t make it wrong. And just because I had publicly supported the now-reversed trial court opinion, doesn’t mean I was right.

Most of the criticism that I read had mostly to do with policy. In essence, they contended that the Federal Circuit to be legally wrong because APIs should…

Buttermilk_Pie

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Copyright Protection for APIs after Oracle v. Google: The Trees Mattered More than the Forest

Part V: Oracle Wanted the Court to See the Forest for the Trees

Last time, I explained the painstaking “abstraction-filtration-comparison” test (or “AFC test”) that most courts use to determine the extent of copyright protection for computer code. The test is tedious and difficult to apply because you have to look at the software at several levels of abstraction—from basic concept to actual lines of code—and apply the test to each level.

Oracle’s Forest

From Oracle’s point of view, the problem with the AFC test isn’t so much that it’s difficult—Oracle has plenty of money for experts and lawyers—but that Oracle loses under the AFC test. Recall that Google deliberately avoided copying the protectable part of the Java API code (the implementation), and the rest of the Java API code was (the declaration) unprotectable under the Merger Doctrine. What Oracle needs is protection for a higher level of abstraction, but the individual methods are so short, there just isn’t enough levels of abstraction before you’ve run out of protectable expression and are completely engulfed by ideas, processes and functionality.

So Oracle needed a new way of looking at the problem: to stop looking at the API as a set of individual works, but…

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Oracle v. Google: Copyright, Coding Choices and the Merger Doctrine

Part III: What Happens to Copyright Protection When There’s Only One Reasonable Way to Code Something

Through philosophical discussions of motorcycle maintenance, pancakes and old 1980’s TV ads involving peanut butter and chocolate, my last two posts can be boiled down into three fundamental rules of copyright law:

1. There is no copyright protection for ideas, facts, functionality, etc., or where the expression is dictated by outside forces, such as tradition, efficiency or compatibility.

2. Where a work has both unprotectable elements and protectable elements, you have to conceptually filter out the unprotectable elements, focusing on just the protectable expression.

3. But, when there’s only one reasonable way to express an idea, fact, function, etc., that entire expression is unprotectable (because otherwise you’d get de facto copyright protection over the idea, fact, function, etc., in violation of principle no. 1).

These principles are very important—fundamental even—for all types of copyrightable works, but they are central importance for computer code precisely because computer code is fundamentally functional. Therefore, these principles play the key role in the court’s holding in Oracle v. Google that the Java APIs are not copyrightable.

I Do Declare

The great thing about a Java “method” is that each has two separate parts, which…

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Copyright and APIs after Oracle v. Google: Functional Expression or Expressive Function?

Part II: When Expression and Function Collide

We’re talking about computer code in Oracle v. Google, and computer code is challenging because it’s expressive but also functional. Last time, I explained that when functionality gets mixed up with expression, we try to separate the expression from the functionality and protect just the expression. But I implied that sometimes they can get too mixed up to be separated. What do we do then? A couple of examples might help.

Consider a manual for motorcycle maintenance that describes a method for cleaning out a motorcycle’s carburetor. The manual is certainly copyrightable, but you have to exclude from copyright protection the method for cleaning the carburetor. If you photocopied the pages describing the method, you’d be violating copyright. But if you described the method in your own words, you’d be fine. The expression is what’s protected, not the ideas (or facts or functions).

With software, this principle takes on overwhelming importance, since software is, by its nature, functional. It makes computers do useful things. Indeed, it may strike some (non-developers) as strange that computer code should be protected the same way novels, movies and music are protected—that code can be “expressive” in the first place.

Merge…

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