Oracle America, Inc. v. Google, Inc.: the Only Nonliteral Aspects of Java Apis Protected Under Copyright Law Are the Ones Nobody Wants to Copy

• Publication year: 2012

NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY 14 N.C. J.L. & TECH. ON. 1 (2012)

ORACLE AMERICA, INC. V. GOOGLE, INC.: THE ONLY NONLITERAL ASPECTS OF JAVA APIS PROTECTED UNDER COPYRIGHT LAW ARE THE ONES NOBODY WANTS TO COPY

Jonathan Ambrose*

In 1976, Congress revised the Copyright Act, extending protection to computer programs. The scope of this protection, however, has remained unclear. While all courts agree that source code is protected from direct copying, they disagree as to the extent of protection for nonliteral elements, such as the code’s structure, sequence, and organization. Oracle America, Inc. v. Google, Inc. is the latest case considering the issue and is consistent with a trend of decreased protection. Practically speaking, Oracle offers no protection for the nonliteral aspects of Oracle’s APIs. This weak level of protection results from computer programs’ functionality. Some might be tempted to extend the court’s reasoning to justify a more explicit distinction in copyright law, denying protection to the nonliteral elements of all computer programs. However, this conclusion would be contrary both to Oracle’s holding, which extends only to the APIs considered, and to the policy that the Copyright Act is designed to effectuate.

1. INTRODUCTION

   The Copyright Act of 19761 extended copyright protection to computer programs for the first time.2 Congress made it clear,

   
   

   * J.D. Candidate, University of North Carolina School of Law, 2014. The author would like to thank the editors and staff of the North Carolina Journal of Law and Technology for their patience, support, and guidance and Professor Andrew Chin for his helpful advice.

   1 Pub. L. No. 94-533, 90 Stat. 2541 (1976) (codified at 17 U.S.C. §§ 101–810

   (2006)).

   1. 17 U.S.C. § 101 (2006). Under U.S. copyright law, a computer program is defined as “a set of statements or instructions to be used directly or indirectly in

      a computer in order to bring about a certain result.” Id. Although computer

      
      

      1

      
      

      however, that protection should be limited to the expression of copyrighted works, rather than the ideas therein.3 Applied to computer programs, this distinction is deceptively simple; copyright protects the code written to carry out a program’s function, but does not protect the function that the program carries out.4 In practice, however, courts have struggled to determine where this line should be drawn,5 and the correct scope of protection for computer programs has been extensively debated.6

      
      

      
      

      programming is not a subject matter specifically enumerated as protected in the Copyright Act of 1976, it is implicitly included in the category of literary works. Computer Assocs. Int’l., Inc. v. Altai, Inc., 982 F.2d 693, 702 (2nd Cir. 1992) (“While computer programs are not specifically listed as part of the . . . statutory definition, the legislative history leaves no doubt that Congress intended them to be considered literary works.” (citations omitted)); see 17 U.S.C. § 102(a) (2006).

   2. See 17 U.S.C. § 102(b) (“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.”); see also Baker v. Selden, 101 U.S. 99, 107 (1879) (holding that copyright protects a book’s descriptions of a bookkeeping system but cannot be used to protect the bookkeeping system itself).

   3. See NAT’L COMM’N ON NEW TECHNOLOGICAL USES OF COPYRIGHTED

      WORKS, FINAL REPORT 20 (1979) (stating that copyright protects the taking of another’s program but cannot bar the creation of software that performs the same process).

   4. Courts that have considered the issue have agreed that copyright extends

      beyond the source code of a program to its nonliteral elements. See, e.g., Altai, 982 F.2d at 702; Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3rd Cir. 1986); Lotus Dev. Corp. v. Paperback Software Int’l., 740

      F. Supp. 37, 54 (D. Mass. 1990). However, the exact demarcation between idea and expression is unclear. Compare Whelan, 797 F.2d at 1234 (holding that nonliteral elements that are not strictly necessary to implement the overall purpose of the entire program are protectable expressions), with Altai, 982 F.2d at 702 (holding that copyright protects only nonliteral elements that are not dictated by efficiency or external factors and are not within the public domain).

   5. See Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 281, 347

   (1970). Initially, it was doubted whether any copyright protection was necessary for computer programs. See id. (“In the face of this uncertain need it would

   seem unwise to extend copyright protection to virtually all computer programs

   
   

   This conflict played out in the summer of 2012 in Oracle America, Inc. v. Google Inc.7 In developing its Android smartphone platform, Google, Inc. (“Google”) copied the function of Java application programming interfaces (“APIs”) owned by Oracle America, Inc. (“Oracle”).8 Specifically, the titles, hierarchy, and organization of Google’s APIs were identical to Oracle’s, while the actual source code of the programs was different.9 Oracle contended that by copying the “structure, sequence and organization” of its work, Google had infringed on its copyright.10

   The court agreed with Google, holding that the “structure, sequence and organization” of Oracle’s APIs were not protected under U.S. copyright law.11 Thus, Google had not infringed on Oracle’s copyright.12

   
   

   
   

   . . . .”). Some commentators suggest that copyright protection should cover only literal copies of the source and object code of computer programs. See, e.g., Dennis S. Karjala, Distinguishing Patent and Copyright Subject Matter, 35 CONN. L.R. 439, 459 (2003) (“[T]he program copyright should protect only against mechanical and nearly exact duplication . . . .”). Others suggest that copyright should protect nonliteral elements of the code, such as its structure, sequence, and organization. See Whelan, 797 F.2d at 1238 (holding that copyright protection of programs can extend beyond literal source or object code to a program’s structure, sequence, and organization).

   7 No. C 10-03561 WHA, 2012 WL 1964523 (N.D. Cal. May 31, 2012).

   1. See id. at *3. Regardless of the legality of their actions, there is no dispute that Google’s intentions in creating their own APIs were to recreate the exact

      functions performed by Oracle’s APIs. See id. (“In light of its inability to reach

      agreement with Sun, Google decided to use the Java language to design its own virtual machine via its own software and to write its own implementations for the functions in the Java API that were key to mobile devices.”); Oracle America, Inc.’s Opposition to Google’s Motion for Summary Judgment on Count VIII of Oracle’s Amended Complaint at 1, Oracle, 2012 WL 1964523 (No. 396) (“The copying in this case is undisputed.”).

   2. See Oracle, 2012 WL 1964523, at *4 (“[T]he Android platform replicated the same package, method and class names, definitions and parameters of the 37

      Java API packages . . . .”).

   3. Id. at *1 (“Oracle’s central claim . . . was that Google had replicated the structure, sequence and organization of the overall code for the 37 API

   packages.”). 11 Id. at *4. 12 Id.‌

   
   

   Imagine that the scope of this holding were extended to a novel, also a literary work under U.S. copyright law.13 A copy could be made that had the exact same plot, characters, chapters, title, and structure of the original. As long as the copier changed the actual sentences that made up the story, that copy would not infringe on the original novel’s copyright.

   In reality, novels enjoy a much greater scope of copyright protection for these nonliteral story elements.14 The comparison between these two works, one artistic and one functional, illustrates the apparent absurdity of applying copyright protection to computer programs. While computer programs are “original works of authorship fixed in [a] tangible medium of expression,”15 they are very different from the artistic or even informative works that are more commonly associated with copyright protection. Unlike these other works, computer programs are designed to function, and generally do so, without any direct human observation.16

   
   

   13 See 17 U.S.C. § 102(a) (2006).

   14 This protection is also extended to other subject matters, such as movies, plays, and television shows, even where the infringing work is in an entirely different medium. See Horgan v. Macmillan, Inc., 789 F.2d 157, 162 (2d Cir.

   1986) (comparing a book of photographs and a ballet choreography); Twentieth

   Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1329 (9th Cir. 1983) (comparing a movie and a television series); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1167 (9th Cir. 1977) (comparing television commercials to a television show); Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (comparing movies and plays).

   15 17 U.S.C. § 102(a).

   16 See Pamela Samuelson et al., A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308, 2316 (1994). This concept of

   functionality is distinguished from the mere usefulness of a literary work. In

   stating that computer programs are functional, it is meant that they independently perform the function of causing a computer to carry out a certain task. See id. (describing computer programs as machines designed to make computers perform tasks); see also Dennis S. Karjala, Copyright, Computer Software, and the New Protectionism, 28 JURIMETRICS J. 33, 38 (1987) (“[Computer programs] are not designed to communicate information, thought, or feeling to human beings, nor are they designed to communicate with, as opposed to physically control, computers.”). On some level, of course, all

   
   

   This Recent Development argues that, while the holding of Oracle offers relatively weak

   ...