The IPWatchdog LIVE panel examines Oracle v. Google: SCOTUS attacks copyright

“The value of a detective story is in the last page where you find out about the murder…. Google only copied 37 of these interfaces, but they didn’t care about the others, only 37 of them were relevant for Android smartphones. – Llewellyn Gibbons

From left to right: Chad Rutkowski, Van Lindberg and Llewellyn Gibbons

Yesterday at IPWatchdog LIVE, a morning panel discussed “The impact of Google vs. Oracle on fair use. This April US Supreme Court ruling has many ramifications for the future of computer code copyright as well as the analysis of transformative uses of computer code. The panel was Chad Rutkowski, partner at Baker & Hostetler LLP; Van Lindberg, Partner at Taylor English and Advisor and Director of the Python Software Foundation; and Llewellyn Gibbons, Distinguished University Professor, University of Toledo Law School.

SCOTUS attacks copyright of computer code, providing very little clarity

In addition to discussing the Java programming language involved in the case and tracing the history of the proceedings of Google vs. Oracle, including the two Federal Circuit decisions in this case, the panel focused on the problematic nature of copyright protection, which is limited to artistic expression, and to computer software and source code, which are highly functional in nature. The recognition of computer code as potentially protectable by US copyright law dates back to the early 1980s and the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU). As Rutkowski noted, however, there is a natural tension between the goals of copyright law and the nature of computer programming languages. “We think copyright protects tangible expression, but it protects what comes out of the page like plot, character and setting,” he said. “What is the plot, character and setting of the source code?” “

Software copyright has been addressed by several circuit courts in the years since the CONTU report, with varying results. In 1986, the Third Circuit decided Whelan Associates v. Jaslow Dental Laboratory, in which the court upheld an inferior ruling that federal copyright protection extended to the non-literal structure, sequence, and organization (SSO) of computer code and not just its literal elements. While Rutkowski believed that the doctrine established by the Third Circuit in this case carried weight, Lindberg argued that the appeals court’s analysis went no further than establishing that each expression of the idea of dental office software that manifested in computer code, and that Whelan Associates was disadvantaged in later cases on the ownership of computer code. In the second circuit, the SSO test of Whelan Associates was rejected and replaced by the abstraction-filtration-comparison test for substantial similarity in computer program structure in its 1992 decision in Computer Associates International v. Altai.

One of the problematic aspects of copyright ownership for computer code at the center of Google vs. Oracle, an issue on which the panel largely agreed the Supreme Court kicked in the case, is the functional nature of the reporting code copied by Google for its Android application programming interface (API). “The implementation code here is like a bunch of road signs, it only works one way and if you change one thing it all falls apart,” Rutkowski said. “Single sign-on in this context doesn’t make a lot of sense to me. Gibbons raised issues with the Supreme Court’s Analysis Order in Google in which the court assumed copyright of the computer code and then assessed fair use factors, including the transformative nature of Google’s use. Gibbons said he believes the use of Google is far from transformative. “If you have a film in Spanish and you translate it into French, you might have a different product, but I don’t know how transformative it is,” he said.

Lindberg: “A beautiful API exists”

Along with the copyright and transformative use analyzes, Gibbons challenged the way the Supreme Court analyzed the fair dealing factor regarding the quantity and substantiality of the copyrighted portion of the work. author that Google used. While the Supreme Court focused on the fact that Google was only using 0.4% of Oracle’s code, Gibbons noted that this factor is supposed to focus on the value of the part used, not just the percentage. from the whole. “The value of a detective story is in the last page where you find out about the murder,” Gibbons said. “Lots of songs, only a short part is memorable. Google only copied 37 of these interfaces, but they didn’t care about the others, only 37 of them were relevant for Android smartphones.

Lindberg, who noted that he enjoys writing computer code as a hobby, said copyright protection is appropriate for computer code that has originality of self-expression. “There is a nice API,” he said. “There is expression in the code, and the way you express it really matters. Lindberg rebuffed Gibbons’ claim that the beauty of APIs and programming languages ​​encompasses only the efficiency of the language which can reach the maximum in a few lines of computer language. Lindberg pointed out that the source code is primarily for human consumption, whereas a computer must translate the language into binary code for processing. “Computers aren’t ideal things, and sometimes you have to do ugly hacks to make it run faster,” he said. “Computer code can be beautiful when it expresses the programmer’s intention precisely and succinctly. “

Steve brachmann

Steve Brachmann is a freelance journalist based in Buffalo, New York. He has worked professionally as a freelance for over a decade. He writes about technology and innovation. His work has been published by Buffalo News, Hamburg sun,,, Motley Fool, and Steve also provides website copies and documents to various business clients and is available for research projects and freelance work.

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