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Sunday, 14 December 2014

Oracle v Google: are certain elements of the Java platform entitled to copyright protection?

With so much happening in the field of IP, even the best-organised of IP blogs is hard-pressed to cover all the major issues that arise around the world. The IPKat and Merpel do their best, but are always grateful to receive a little outside assistance from time to time.  Here's a guest post, brought to you courtesy of fellow blogger, tweeter and IP enthusiast Thomas Dubuisson (right), for which this Kat is particularly grateful since -- while he has mastered the concept of the API, he blushingly confesses that he had never previously spotted the term "declaring code".  Anyway, this is what Thomas tells us about a larger than life dispute that is rumbling through the courts in the US but which many readers from outside that jurisdiction may not yet have had the chance to reflect upon:
It is difficult for even the most soundly-sleeping feline to remain unconscious of the recent Google petition for writ of certiorari. This case is particularly interesting because it involves many spicy ingredients: a smartphone IP dispute between two tech giants (Google and Oracle), a lot of money at stake, a potential fair use exception, and copyright law in the computer context. 
As things stand, this is by no means a new case. The main question at issue is whether Google infringed Oracle’s patents and copyrights by copying Oracle-owned Java APIs in Android (Google’s mobile operating system) without authorization.  As is known, many software developers use the Java language, as well as Oracle’s API packages, to write apps for smartphones and other devices that we daily use. This saga started four years ago in August 2010, when Oracle filed a complaint for copyright and patent infringement and a demand for jury trial. Oracle claimed (and stills claims) copyright protection with respect to both 
*  literal elements of its API packages—thousands of highly creative and original lines of declaring source code [“declaring code” being the “expression that identifies the prewritten function” and commands the computer to execute the associated “implementing code”, which gives the computer the step-by-step instructions for carrying out the declared function] that Google copied verbatim and  
 non-literal elements—the structure, sequence, and organisation of each of the 37 (of the 166) Java packages, i.e. shortcuts allowing programmers to use a prewritten code to build certain functions into their own programs, rather than write their own code to perform those functions from scratch of computer source code, which Google generally replicated when it developed the Android platform.
For those who are unfamiliar with computer programming (like this author), an application programming interface (API), simply expressed, is a set of commands, protocols, and specifications that allow applications to communicate with each other. For instance, YouTube provides several APIs and tools that let you integrate YouTube into your website, mobile app or device. 
The case was assigned to Judge William Alsup (Northern District of California) who ruled that APIs are not subject to copyright. The Judge said, among other things, that (i) declaring code was not protectable and that (ii) although the overall structure of Oracle’s API packages was creative, original, and “resembles a taxonomy”, it was nonetheless “a command structure, a system or method of operation that is not entitled to copyright protection under Section 102(b) of the Copyright Act”. He also emphasized that, “[o]f the 166 Java packages, 129 were not violated in any way”, concluding that 
“Google and the public were and remain free to write their own implementations to carry out exactly the same functions of all methods in question, using exactly the same method specifications and names. Therefore, at the method level …  Google has violated no copyright, it being undisputed that Google’s implementations are different”. 
On the patent infringement issue, the jury found no infringement (the patent claims were not at issue in the appeal). 
On 9 May 2014 Oracle appealed the ruling to the U.S. Court of Appeals for the Federal Circuit, which reversed the decision. In its view 
* Oracle was not seeking copyright protection for a specific short phrase or word, but instead for 7,000 lines of declaration code. The Judge stated that because “Oracle “exercised creativity in the selection and arrangement” of the method declarations when it created the API packages and wrote the relevant declaring code, they contain protectable expression that is entitled to copyright protection”;

 the "structure, sequence and organization" of an API was copyright protected. The problem with the district court’s approach is that computer programs are all designed to accomplish some task and therefore, by definition, functional.  Additionally, the statutory definition of “computer program” acknowledges that they function “to bring about a certain result” (17 U.S.C. § 101) and are therefore entitled to copyright protection as long as the author had multiple ways to express the underlying idea. Moreover, Google designed many of its own API packages from scratch, and thus could have designed its own corresponding 37 API packages if it wanted to do so (ibid.) which, the opinion notes, "Google chose not to do". However, the Court left the possibility that Google might have a fair use defence.
On October 6, 2014, Google filed a petition asking the U.S. Supreme Court to review the Federal Circuit's appellate ruling holding Oracle's asserted Java API declaring code to be copyright-protected. On December 9, 2014, Oracle responded to Google asking the Supreme Court to reject the case.

Not sleeping through the dispute
but dreaming of the outcome
In conclusion, this dispute is all about the threshold question of what is protectable copyright subject matter and, consequently, what constitutes an infringing activity. Oracle pushes for a fair and “well-deserved” copyright protection, whereas Google prefer a conceptions that allows for interoperability/ compatibility and re-use to make it easier for programmers to write for Android. The U.S. Supreme Court may hear the case, or refuse to do so and remit it to the district court for a retrial on "fair use".  We look forward to finding out what happens next.

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