Monthly Archives: November 2019
Monthly Archives: November 2019
BREAKING: Supreme Court of the United States agrees to take up precedent setting case on copyrightability of software.
I don’t expect a ground breaking change in what the courts consider copyrightable, but this case does raise interesting legal issues.
The issues arise out of a brouhaha between Oracle and Google over Google’s rewrite of a JAVA-like operating system for Android devices that adopted the same API structure and calls as used in the JAVA programming language.
The Court of Appeals for the Federal Circuit, the “IP appeals court”, overturned lower court decisions that would have dismissed the case for no copyright infringement or found “fair use” by Google of the API structure and names.
It is black letter law that short names cannot be copyrighted.
Its also black letter law that facts cannot be copyrighted.
In fact, except for software, copyright only protects “original creative expression” and the content is not protected.
How a person expresses an idea is protected by copyright not the idea, itself. But how a person expresses themselves in source code is not really the issue, unless lines of code are actually copied.
17 U.S. Code § 102 (b) of the Copyright Act states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Software is just another type of “original work of authorship”. So, copyright doesn’t extend to the process or method.
For the most part, Google rewrote the source code for its operating system, expressing it in a different way. So, there doesn’t seem to be any significant actual copying by Google of any “original work of authorship.” Google chose to keep the functional API structure and call names substantially the same as Oracle’s JAVA API, but these calls to the code are a structurally functional process used to access Google’s operating system. It did this to make it easier for JAVA programmers to program for its Android operating system.
This is where it gets interesting.
Copyright’s protection of creative authorship is not an ideal protection for software, which gains its value from the functional procedures, processes, systems, methods of operation, and concepts — not from the expression of these. The real creativity in software is not how the source code is expressed but how it functions, the logic.
There’s nothing inherently creative about the expression of an API, which is utilitarian in nature. Nobody reads an API for enjoyment or to learn something, other than how to program a device to do something with the library of calls provided by the operating system.
Now, here’s the rub. It’s patent law that is intended to provide protection for a new, nonobvious and useful “…procedure, process, system, method of operation…” — not copyright. But the courts have been invalidating software patents for all types of “abstract ideas” and “algorithmic methods”. So, large swaths of software applications are no longer considered patentable subject matter.
If the functionality and utilitarian aspects of software are held to be unprotected by both copyright and patent law, this leaves trade secret law as the last vestige of protection for software. However, trade secrets only protect against misappropriation, not reverse engineering or independent redevelopment.
Many programmers embrace open source and might consider it to be just fine that companies can’t protect software using intellectual property rights. They see the benefits of reusing code and technological efficiency as a benefit to society and don’t see any significant benefit to keeping programs proprietary.
In fact, the Electronic Frontier Foundation (EFF), which declares itself the “leading nonprofit organization defending civil liberties in the digital world”, is celebrating the decision by the supreme court to reconsider the decision made by the Court of Appeals for the Federal Circuit.” The Supreme Court now has an opportunity to reverse the damage done by the Federal Circuit,” declare authors Michael Barclay and Katharine Trendacosta in an article posted to the EFF website.
They point out that the U.S. Solicitor General in the Obama administration opposed review by the supreme court and disparage the reasoning used in its briefs opposing review.
However, relying solely on trade secret law to keep software proprietary, ironically, could make it much harder to disseminate technology benefits. Programmers could be subject to egregiously restrictive covenants in employment and consulting agreements.
Let’s wait and see how the supremes deal with the issue. Proprietary software serves a purpose, allowing companies to invest and recoup some of their investment in large software development projects.
The term of 95 years under the Copyright Act is not at all reasonable for software. Even the 20 years from filing provided for patents seems long. Maybe it’s time to develop a new type of IP, with a shorter term, which provides protection for programmers without unduly burdensome repercussion on innovation in the technological arts.
A recent Florida case is a good example for teaching what copyright protects and doesn’t ptotect. Netflix was sued by the author of a memoire in Vallejo v. Narcos Productions LLC.
The court dismissed the case, because Netflix did not infringe Vallejo’s copyrighted work. While there was copying of some facts from the work, these facts do not belong to Vallejo.
According to the decision, in one alleged instance of copying “…the only similarities between these two scenes are the blindfold, caressing with a gun, and Plaintiff/Velez is aroused.”
How these facts are portrayed in the fictionalized version presented in the Narcos series is substantially different than the description in the memoir.
“These facts are not protectable. The idea of a sex scene involving a gun is not protectable…. There is no dialogue that has been copied, the settings are different, the feel of the scenes are different, and how the scenes play out are different.”
Copyright cannot be used to prevent others from disclosing facts, even if the only place that those facts are found is in one copyrighted work. Once the facts are known, anyone may retell the facts, so long as the reteller does so in their own way and own words, without copying the way that the original author expressed those facts in the original work.
The fictionalized retelling of a story that uses a few original facts from a copyrighted work but tells a different story in a different way is not copyright infringement.