Supreme Court to Take-On Software Copyright Case

Issues: (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.


17 thoughts on “Supreme Court to Take-On Software Copyright Case

  1. 5

    Can I copyright the expressive names I give to the new species of bacteria and notes that I discover when I kick over an anthill?

    What about methods of referring to those new things using my new names? Can I patent those processes?

    Why or why not?

    1. 5.1

      “notes” in my comment above was intended to be “mites” (spellchecker changed it)

      Thank goodness for all those awesome and totally not-junky patents on new spellchecking “apps.” That’s some amazing “progress” we’re making. Maybe I’m not watching enough ads to entitle me to the better version? Must be.

  2. 4

    And as all of you argue about software, like records, to cassettes, to reel to reel to,CD’s like reel to reel, to the VCR to DVD’s as you argue software will be ancient like the type writer to computers, and they too will be taken over by the next great wonder. We can only hope that whoever does doesn’t get trolled by those that want what is not theirs. but that is way to much to consider. But by then, we will all be under water. Maybe not me per say but those that come behind me.

    1. 4.1

      Pc (and I chuckled at that),

      Your feelings, as Slashdot/TechDirt lemming-like and as divorced from actual innovation considerations as they are, are duly noted.

  3. 3

    I note that the case is seen by commenters here as “epic” but I should like to know why. Is it because copyright protection endures for decades longer than the patent term?

    What springs to mind is the 1960’s UK Supreme Court case in which a car manufacturer (British Leyland) went to law to stop after-market makers of replacement exhaust pipes. They were said to be infringing the copyright in the engineering drawings of the exhaust pipes. Is it right that the patent owner can enjoy such protection after the patent has expired? If it is right that copyright should last longer, why not also for engineering drawings of exhaust pipe systems and components?

    Since then, and informed by the issues debated in that Supreme Court case, Europe has reformed its design patent law, with a maximum term of 25 years for Registered Designs and a term of protection for unregistered designs that is less than the 20 year patent term. What will SCOTUS do here? Epic!

    1. 3.1

      The “epic” is not due to the difference in term between the two forms of IP protection.

      More so is the distinction between protection of expression and protection of function — and the fact that an item may provide overlap of these two distinct forms of expression (distinct, mind you, but HERE, arising under the same provision of Constitutional authority.

      There is certainly a US Sovereign aspect here that you should try to appreciate, MaxDrei.

      1. 3.1.1

        OK, anon, so be it. In that case, tell me please, in your sovereign jurisdiction, does copyright subsist in engineering drawings? Surely that is no longer an open question. Surely the answer must have been given already, many years ago.

        And if it does subsist, is it an infringement of that copyright to reproduce in material form what is depicted in those drawings? Surely you know the answer to that one too.

        And if it is, for how many years does the owner of copyright enjoy such protection from infringement. You must know that, surely.


          No (just don’t copy the blueprint yourself to have the reference in hand).

          Any other questions?

          Also, I suggest that you visit the copyright office website and search there for “circulars.” Many details are available at your fingerprints (and I am sure that you will be more receptive to information from the source).


            (most likely, I should add a caveat that something in the blueprint may give rise to an item that IS protected by copyright in any “item made from.”

            For example, plenty of physical goods retain the copyright protection (aside from a copyright on a blueprint) from an ornamental effect captured in the physically made good. I did presume that the thrust of your question was solely to a copyright IN the blueprint.


            Well, yes, since you ask, two. First, is it in the statute or in the case law, that the act of reproducing in 3-D material form what is depicted in 2-D in the engineering drawing is NOT an infringement of the copyright that does subsist in the drawing itself?

            Second question. Suppose the original copyright work is not a 2-D drawing but, rather, a 3-D wax model of a prototype yacht hull or racing car. Does copyright subsist and, if so, is it infringed by a 3-D copy?

  4. 2


    As stated: Issues: (1) Whether copyright protection extends to a software interface; and (2) whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

    Of course, copyright protection extends to a software interface. The real question though is how thin the protection of a software interface is there in ANY protection so extended.

    This is a different type of question.

    ANY item that may have an element of expression is an item to which copyright protection may extend to (all other elements of what are needed for copyright protection being given as being met).

    The second issue of Fair Use, is of course, very fact and situation dependent.

    1. 2.1

      There is another issue that comes to mind with the Supremes taking cert in Google v. Oracle, and this pops up immediately if you type it into Google:
      “Scholarly articles for copyright and functional interoperability:
      … legal analysis of interoperability in computer programs – ‎Van Rooijen – Cited by 27
      … Engineering of Software: Copyright and Interoperability – ‎Abbot – Cited by 9
      … and Future of Software Copyright Interoperability … – ‎Samuelson – Cited by 7”

      1. 2.1.1

        Are you viewing “interoperability” as separate from the consideration of “functionality?”

        Are either of these not subsumed into the “thinness” aspect I allude to?


          “wherein said item is subsumed into said aspect”

          Totally patent-worthy, right? Oh wait: only if carried out by a computing machine.

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