A copyright conundrum: understanding what is beyond the code in a computer program

Google faced allegations of copying approximately 11,500 lines of code in Oracle’s Java computer program in the U.S. Supreme Court case of Google v Oracle. The copied lines of code were part of Java’s application programming interfaces (APIs). The allegations did not end there but also extended to copying the structure, sequence and organisation (SSO) of Java’s APIs. An API is phenomena that facilitates the relations between the programmer and the prewritten code (Google v Oracle, p 4). The case reached the Supreme Court, but the judgment did not provide clarity, at least, on whether the SSO of the APIs could be protected by copyright law.

Is the SSO of application programming interfaces visible for copyright purposes?

Where a case like the one above involves allegations of copyright infringement in a computer program, a question as to whether the material is eligible for copyright protection needs to be answered before deciding whether there is infringement. According to the Copyright Act 1976, as amended, copyright subsists in original works of authorship fixed in any tangible medium of expression. This may include original literary works. Although computer programs are not explicitly referred to in the statutory provision as literary works, the legislative history leaves no doubt about the inclusion. Initially, this may be surprising as a computer program does not easily fit the mould of an original literary work.  Nevertheless, some sense can be made of this, when the textual nature of the code is compared with the text used to complete an essay, for example. Copying the textual nature of the code is often referred to as literal copying akin to a person copying substantial chunks of material verbatim. However, copyright protection extends beyond the code. The allegation Google faced over the alleged copying of the material associated to the APIs may fall into this category. However, as the Supreme Court only assumed copyright law protects the SSO in Java’s APIs, a great deal of uncertainty exists as to whether the SSO in API phenomena attracts copyright protection.

Doctrinal law struggles to reach an answer

Decisions from the District Court and the Federal Circuit in Google v Oracle were strikingly different to each other which meant the Supreme Court judgment missed an opportunity to provide meaningful clarity for copyright law. For example, the district court held the SSO of the APIs were not within the scope of materials that could attract copyright protection as the material was perceived to be only a system or a method of operation akin to a library. If the material was fully visible, this decision aligns with s102(b) of the Copyright Act 1976 which makes it clear that copyright does not extend to any idea, process, system or method of operation. Yet the material was visibly different to the Federal Circuit. 

The Federal Circuit held the SSO took the form of an original literary work so could be protected by copyright law. The reasons appear to be based firstly, on how the SSO was expressed in the code, and secondly, that the code could have been written in multiple ways. In other words, there was some degree of creativity in the expression. However, the reasoning raises doubt about whether copyright extends beyond the code to the SSO. The much-anticipated decision by the Supreme Court did nothing to clarify this matter as the judgment largely bypassed the issue altogether. 

The difficulty the judiciary face in conceptualising the SSO of the API is not overly surprising as doctrinal law attempts to treat copyright phenomena as tangible objects or things. For example, copyright law represents a computer program as an original literary object rather than meaningfully understanding the material. On the one hand, the aim is to provide clarity and consistency, yet on the other hand, trying to meaningfully fit intangible material into a tangible object is impossible. Tracing the judicial decision making in Google v Oracle is a perfect illustration of the impossible task the judiciary face. 

A way forward

Dr Karen O'Neill

Karen is an associate lecturer for the Open University Law School.  Her research interests are in copyright law over computer programs and emerging technologies. Karen teaches criminal law (W111) and supervises dissertation projects (W350).