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On June 29, 2015 the US Supreme Court decided to turn down Google’s request to hear its appeal of the Federal Circuit’s ruling from a year ago, that Oracle’s declaring code for pre-programmed Java routines is eligible for copyright protection.  See my May 27 2015 post for more background.  This means the case will now go all the way back to US District Court in California, for a determination of whether or not Google’s use of such copyrighted declaring code is an allowable use (“fair use”) under copyright law.

So now we are left with two related circuit court decisions affirmed by Supreme Court inaction, the Lotus decision (that simple commands to control a program’s function are not copyrightable) and this Federal Circuit decision (that declaring code to control a program’s function is copyrightable).  One simple way to reconcile the two rulings is to say that simple command syntax/words are not copyrightable (Lotus), but sequences of programming code are copyrightable (the Federal Circuit’s Oracle decision).

An important point made by the Federal Circuit is that for the purpose of determining copyright eligibility, it does not matter what the code is used for.  The only thing that matters is the expressive choices made by the author, and the other ways the software could have been written.  By its decision, the Supreme Court apparently endorses this view (…which is different from what the Lotus court said).  Here, nothing compelled Oracle to make the specific decisions it made regarding how Java programs would be called/enabled, which was the key to copyrightability.  It did not matter that others, in calling these Java programs, had no choice but to copy the exact same form/format mandated by Oracle.

Is this a good thing?

Well, if you have written program code and defined your application program interface (API) by the use of sequences of declaring code to call various functions of the program code, today’s decision preserves your ability to mandate the terms under which such declaring code will be used by others.  If your APIs are more in the realm of simple command words/statements (see Lotus) than they are sequences of declaring code like the Java declaring code of Oracle, be mindful that Lotus remains good law, and hence continues to cast doubt on the copyrightability of such APIs.

Today’s decision to not hear the appeal means that the state of the law regarding copyrightability of API commands/code sequences remains more muddled than it needs to be.  A strong statement from the Supreme Court would have been a welcome clarification.

News Flash – Oracle v. Google Copyright Case

May 28, 2015
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In its brief filed on May 26, 2015, the US Solicitor General (SG) advised the US Supreme Court to not hear Google’s appeal of a decision, from the Court of Appeals for the Federal Circuit, holding that copyright protection extends to declaring code.  Should the Supreme Court agree with the SG, it will once again […]

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DMCA Advice from the Department of Commerce

April 23, 2015
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The Digital Millennium Copyright Act of 1998 was created to protect copyright owners from infringement of their works (such as photos, documents, music files, and videos) over the Internet.  Amongst other things, the DMCA created an exception (“safe harbor”) against monetary copyright liability for “service providers” (broadly, providers of online services) who establish and follow […]

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Startups and Patents

April 2, 2015
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A recent study on R&D vitality, “Measuring Innovation“ by Michael Cooper et al, reports that only about 50% of companies with R&D operations file patents. Another recent study focusing on patent litigation, “The Layered Patent System“ by Michael Risch, reports that on a percentage basis more patents asserted by non-practicing entities (so-called “patent trolls”) are […]

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Can your social media contacts be a trade secret of your employer? Maybe.

March 31, 2015
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This is a relatively new legal subject, so there isn’t much law out there.  In December, 2011, a Pennsylvania federal court answered this question in the negative.  In the case of Eagle v. Morgan, Linda Eagle, the founder of a company, Edcomm, had developed a significant LinkedIn presence closely connected to Edcomm.  In 2010, Edcomm […]

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Second Strike Out for Alleged Patent Troll

January 19, 2015
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Alleged “patent troll” strikes out for second time in its efforts to have the Vermont AG’s “unfair patent enforcement” lawsuit adjudicated in federal court. In May 2013 the State of Vermont sued MPHJ Technology Investments, LLC for alleged consumer fraud arising from its letters sent to Vermont businesses claiming patent infringement.  Since then, the parties have […]

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Oracle v Google: Are APIs Copyrightable?

November 12, 2014
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Last month, Google asked the Supreme Court to hear its appeal of an appeals court ruling that certain application program interfaces (APIs) are copyrightable.  Oracle’s response is due in December, and the US Government may weigh in, so we may not know until January 2015 whether the Supreme Court will accept the case.  I expect they […]

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Software Patentability – The Supreme Court Speaks. Turn Down the Volume.

June 23, 2014
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On Thursday, June 19, 2014, the US Supreme Court issued its decision in Alice v CLS Bank, a court case dealing with the patentability of software.  See our earlier post on the lower court rulings. What is Patentable? In the US, we have a law (35 USC §101) that lays out what kinds of subject matter are […]

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Tesla Patent Pledge….Too Good to be True?

June 15, 2014
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On Thursday June 12, Elon Musk, CEO of Tesla Moters, posted a blog post that said “…Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.”   At first glance, a good thing.  It is certainly better than having no such pledge.  But before folks gleefully download all […]

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EU Court of Justice Rules Web Browsing is not Copyright Infringement

June 12, 2014
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Whenever we view content on the Internet, our web browsers (Internet Explorer or Firefox, for most folks) make temporary copies of that content on our computers.  Amongst the rights reserved by copyright holders is the right to prevent others from making copies.  So do those copies constitute copyright infringement?  On Thursday, the European Court of […]

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