There has been a lingering, divisive question in the software industry as to whether application programming interfaces (APIs) are entitled to copyright subject matter protection. Critics argue that this type of source code is functional in nature and, as such, should not be protected by copyright. However, in Oracle America, Inc. v. Google, Inc., CAFA 2013-102, the Federal Circuit Court concluded that “a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection” and Section 102(b) of the U.S. Copyright Act does not automatically prohibit copyright protection for functional elements of a computer program.
The impetus for this lawsuit arises from the smart phone wars where interoperability of programs on different platform systems is essential for commercialization. Oracle claims that Google had copied and distributed the literal code and the non-literal structure, sequence and organization (SSO) elements of Oracle’s Java APIs in conjunction with Google’s Android platform. Google asserts that the SSO portions of the Java APIs copied were ineligible for copyright protection under Section 102(b) in pertinent part under the merger doctrine. The merger doctrine stems from the idea-expression dichotomy of copyright wherein a work is not protected if the idea can be expressed intelligibly only in one or a limited number of ways such that the expression is inextricably merged with the idea. Section 102(b) states that “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.”
The Federal Circuit clarified in its ruling that the merger doctrine did not preclude the non-literal structure, sequence and organization elements of the code from copyright protection but it could be asserted as a defense to infringement, as well as fair use. The court pointed out that the analytical focus for the copyrightability analysis should be on the external factors compelling the selection of these non-literal elements by the author of the API code at the time of creation rather than interoperability or design options available to or considered by the infringer at the time of infringement. Since Oracle’s Java APIs were found to contain creative expression in the particular selection and arrangement of method declarations, these SSO elements of the code were held to be protectable expression under copyright.
This decision is seminal for the smart phone software industry whose commercial practices are dependent upon using other’s interfacing code to make applications interoperable with a particular platform. Our advice is to proceed with caution if your company desires to use API method declarations and/or code without first obtaining a license or other consent from its owner.
