In the long-running litigation (and hey, is there any litigation
that isn't "long-running"?) between Oracle
and Google, a US court decided in 2012 that APIs in this case
were not eligible for copyright protection.
See our earlier post. This meant a complete loss for Oracle in
its lawsuit against Google for infringement of the Java APIs used
in Google's Android software.
Copyright protects only original expression. Applied to
software code (including API protocols), the law of copyright tells
us that certain elements are not protectable by copyright since
they lack originality. The US trial level decision in Oracle
vs. Google has been appealed and the parties are now filing briefs
in the US Federal Court of Appeals (a copy of Oracle's brief is
here). The briefs make fascinating reading for
those interested in the finer points of copyright law and the
history of the Java programming.
Oracle's brief opens by sketching a scene: "Ann Droid
wants to publish a bestseller. So she sits down with an advance
copy of Harry Potter and the Order of the Phoenix
—the fifth book—and proceeds to transcribe. She
verbatim copies all the chapter titles—from Chapter 1
("Dudley Demented") to Chapter 38 ("The Second War
Begins"). She copies verbatim the topic sentences of each
paragraph, starting from the first (highly descriptive) one and
continuing, in order, to the last, simple one ("Harry
nodded."). She then paraphrases the rest of each paragraph.
She rushes the competing version to press before the original under
the title: Ann Droid's Harry Potter 5.0. The knockoff flies off
Does this constitute copyright infringement?
One of the big issues on appeal will be whether the appeals
court accepts the notion that copyright infringement can occur
without any actual direct copying of code. This is the
so-called SSO argument - that the "structure, sequence and
organization" of the software can attract copyright
protection, regardless of whether specific code is cut-and-paste.
As illustrated in the Harry Potter example above.
Stay tuned. This is one to watch in 2013.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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