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Google v Oracle

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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.

About the Author

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I'm Chris Paradies, a Florida Bar certified intellectual property Attorney and U.S. Reg. Patent Attorney, founder of Paradies® law and creator of the IPscaling process. I chair the board of directors for the Tampa Bay Innovation Center and serve as a facilitator helping small business owners get started right. I work hard as an advocate for small businesses and have received awards and recognition for support of small business economic development and leadership in technology. I'm a West Point graduate, U.S. Army veteran and entrepreneur. I'm not afraid to stand up and say that the Big Law model is broken and doesn't serve entrepreneurs well. Some of the alternatives are even worse! This is a market ripe for disruptive change. And I'm willing to take the lead. Join me!


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