by Dennis Crouch
In recent years, much attention has focused on whether the output of computer software engineers is properly the subject of patent rights. Now, however, an important case is pending before the U.S. Supreme Court regarding whether computer programs are protectable under copyright. Here, the particular issues involve copyright protection over program interface (API) function calls that allow programs to communicate with one another.
Google v. Oracle (awaiting writ of certiorari).
When Google developed the API-toolkit for Android, it wanted to use Java-like functionality, but didn’t want to pay the license fee. So, rather than copying the Java code, the company had its engineers re-code the functionality. Because copyright doesn’t cover functionality, this approach works to avoid copyright infringement. The one caveat was that Google did not want to force developers learn a whole new toolkit of functional calls and so the company copied the set of more than 6,000 function calls. This approach allows Google to free-ride off of the popularity of Java. As I wrote earlier:
As an example, Google used the Java method header “java.lang.Math.max(a,b)”. When called, the “max” function returns the greater of the two inputs.
In considering the case, the Federal Circuit ruled that the Java API taxonomy was copyrightable — rejecting the idea/expression merger doctrine since there are many other ways that functionally equivalent method-calls could have been constructed besides those found in Java. The court wrote: “merger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them.”
The petition for writ of certiori to the Supreme Court asks the following question:
Whether Section 102(b) [of the Copyright Act] precludes copyright protection for original software code that defines and organizes a set of functions that are useful in writing computer programs.
In the most recent filing in the case, the Solicitor General has suggested that the court not take the case – because it was correctly decided by the Federal Circuit. For the SG, computer programs are unquestionably copyrightable, including the API function calls at issue here. Rather than being a question of copyrightability, the SG suggest that Google’s best argument is fair use — although the SG does not offer an opinion of whether that is a winning argument.
[Read the New SG Brief: SGBriefGoogleOracle]
Petitioner contends, however, that even if the declaring code is an “original work of authorship” under Section 102(a), it is not entitled to copyright protection because it constitutes a “method of operation” or “system” within the meaning of Section 102(b). That argument is incorrect. . . . Section 102(b) is not a limitation on what kinds of expressive works may be protected by a copyright. Rather, it is a limitation on how broadly the copyright extends. Although a book on how to build a bicycle may be eligible for copyright protection, that copyright does not include any exclusive right to practice the bicycle-building method that the book explains; nor can the author prevent another person from writing a better book with a clearer explanation of the same process.
In years past, the Supreme Court has often followed the recommendation of the SG in deciding whether to grant petitions for writ of certiorari. However, this particular brief does not wrestle with the copyright issues in a straight way, but rather appears to argue in favor of a politically chosen conclusion. In my mind, this suggests that the court should give less weight to the brief than may have been expected apriori.