Recent court decision in Oracle v Google raises serious copyright questions in certain types of software
In a decision in the Oracle v Google case, the court held that APIs – application program interfaces – small amounts of human readable source code, are not sufficiently original to qualify as copyrights. This decision can impact API licenses, which most likely are based on copyrights.
What Google did. Google decided that to construct a mobile platform operating system (ultimately, the Android operating system) it wanted to be able to “interoperate” with java programs – in this way, developers could rapidly publish their programs written in Java, to the mobile platform. In order to do this, however, Google either needed a license to the Java virtual machine to allow it to “port” it to the mobile hardware, or it needed to emulate that environment. Google approached Sun (later bought by Oracle) for this license, but the parties never agreed. Google eventually copied the names of the base classes and methods, and wrote its own original code to implement the particular functions. So as an example, a Java program would call a function, using the precise identical name of the function, class or method, but the “behind the scenes” black box code in Android that returned a result, was written by Google and not copied from Java. Google did a few other things (for example, they decompiled some executable code in Java, and used the source code derived from that to test their own software compatibility, and they included verbatim 9 lines of code in a range check function, which the court utterly dismissed as De-minimis copying)
What Oracle claimed. Faced with having examined 15 million lines of code and discovering that only the structure, sequence and function was copied, Oracle took the position that it had a copyright in that structure, function and sequence.
What the court held. The parties had agreed that the issue of copyright was for the court to decide, with the jury being the arbiter of any infringement or damages. The court did a very good job of reviewing the history of protection of computer software – which really started in about 1980, with amendments to the Copyright Act that recognized computer software as a literary work. (this case is very well written and researched, so I can commend it to anyone who wants a crash course in software law)
The trouble with the copyright protection, however, is that copyrights cannot protect ideas – that is the exclusive domain of patent law. So, whenever a copyright expresses an idea, we often say that the idea is free but the expression of it may not be. However, where there is only a limited way of expressing the idea – courts hold that the idea then “merges” into the expression, becoming inseparable, and renders that particular expression free from copyright protection. That is what the court held here – essentially, the court said that if you want to protect the sequence, function and structure of how a software program works, you must use patent, and not copyright, law. This ended the case for Oracle, as Oracle had lost on patent infringement.
The court summarized the best argument as follows: “Oracle’s best argument, therefore, is that while no single name is copyrightable, Java’s overall system of organized names — covering 37 packages, with over six hundred classes, with over six thousand methods — is a “taxonomy” and, therefore, copyrightable under American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir. 1997).” (emphasis added)
What impact does this case have? In the abstract, this case follows a fairly well defined line of cases that have denied copyright protection to such things as menu structures and programmatic access to underlying operating systems. In this regard, the case does not change the law. However, in a bigger picture view, and with particular reference to the amount of copying here – all of the main class and method calls in Java were replicated verbatim . . . it could be seen as a step toward requiring either very good contracting practice, or patenting, to protect access to a software language system. The only other way to protect access is under the Digital Millennium Copyright Act – installing and using a sufficient technological measure that must be decrypted in order to access content.
If a software developer desires to restrict access to base operating code, the Oracle v Google case poses a significant barrier to reliance on copyright alone. As stated above, the developer should consider proper contract language, patenting the system, and use of encryption technology to unlock such access.
For more information contact Mike Oliver.