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Oracle America, Inc. v. Google Inc. will have reverberations far beyond the U.S. Court of Appeals for the Federal Circuit where it is being heard today. It will determine the nature of ownership rights attached to software.

If you create software or even own software, Oracle America, Inc. v. Google Inc. is important to you. It’s also important for the larger economy since the software industry contributes more than $260 billion to the U.S. GDP each year and employs 2 million U.S. workers.

Here are the highlights for the less legally and technically inclined among us: Google copied and used software belonging to Oracle. Google claims that Oracle’s software is not copyrightable and that even if it is its use of the software was permissible under the “Fair Use Doctrine.”

Here are a few more details: Google argues that it needed to copy Oracle’s API (Application Programming Interface) so that its Android operating system would be “interoperable” with Java. Google makes the argument that Oracle’s API is 1) not copyrightable, and; 2) Even assuming that it is copyrightable, its use of the API is permitted under the “Fair Use Doctrine.” Oracle America argues, not surprisingly, that Google is wrong on both counts.

Here are some of the issues: The Copyright Act currently protects software as “literary works.” That’s a pretty low threshold for protection. Protection applies so long as the work is original and creative. Google argued essentially that the API was too broad to qualify for copyright protection.  The lower court found that because Oracle’s API serves a function, it is not copyrightable.

There are several problems with that line of reasoning. First, all software and most copyrightable works serve a function. If functionality is to serve as the litmus test of copyright eligibility then all software is ineligible for copyright protection. Second, an API presents a specific way to address an issue and is thus akin to a specific form of expression. It is not, as Google contends, a more general concept or idea, both not protected by copyright.

The “Fair Use” argument also falls far short of the mark. Google was seeking to replace its own API with Oracle’s. It was trying to create a product that would substitute for its own.

It is difficult to get into the issues without at least touching on complex legal and technical issues. The bottom line is that Google is arguing that software that serves a function and is not eligible for copyright protection. By definition, all software serves a function. If the Court of Appeals agrees with this “functional” approach all software would be ineligible for copyright protection.

The ramifications of withdrawing copyright protection from software would be felt throughout the economy. Copyright provides the incentive to innovate and create. Apart from philosophy, many developers would not be able to continue creating without the income that copyright affords. There are certainly valuable and important open source communities. However, what copyright affords those open source contributors is an option (and not an obligation) to work under that system as well as the option to contribute their original works.

The case is technical and some of the concepts are nuanced. It is nonetheless well worth your time to follow it and to make your voice heard. The impact of Oracle America, Inc. v. Google, Inc. will be impossible to ignore.


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