May 2014

CAFC Reverses Judge Alsup – Java API Declaring Code Held Copyrightable

May 10, 2014

On November 26, 2013 I wrote a post titled “Oracle v. Google: How Google Could Lose on Appeal” (link). After oral argument before the CAFC a couple of weeks later I wrote a follow-up post, “Oral Argument in Oracle v. Google: A Setback for Google?” (link). I thought I was being a bit paranoid on Google’s behalf, but I was wrong – if anything, I was being too optimistic. The CAFC reversed California federal district court judge William Alsup, upholding almost every argument made by Oracle. Interoperatibility Goes To Fair Use, Not Copyrightability In the “How Google Could Lose” post I noted that Oracle had a good argument that interoperability is properly raised in connection with a copyright fair use defense, not to determine whether the plaintiff’s work is copyright-protected in the first instance.  The CAFC agreed, stating Whether Google’s software is “interoperable” in some sense with any aspect of the Java platform  … has no bearing on the threshold question of whether Oracle’s software is copyrightable. It is the interoperability and other needs of Oracle—not those of Google—that apply in the copyrightability context, and there is no evidence that when Oracle created the Java API packages at issue it did so to meet compatibility requirements of other pre-existing programs. Filtration for Interoperatility Should be Performed Ex Ante, Not Ex Post In “How Google Could Lose” I noted that: under Altai it is the first programmer’s work (in this case Oracle)…

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