Oracle tries to undo Google's successful defense of Android by claiming that software code is no different than literary text in matters of copyright.

Thomas Claburn, Editor at Large, Enterprise Mobility

February 13, 2013

2 Min Read

In an effort to revive its copyright claim against Google and its Android mobile operating system, Oracle this week filed an appeal with United States Court of Appeals for the Federal Circuit.

Oracle is seeking to overturn U.S. District Court Judge William Alsup's determination that programming APIs are not subject to copyright protection. The company is not appealing its unsuccessful patent infringement claim. Oracle has maintained that the "structure, sequence and organization" of its Java APIs are protected under copyright law. But Judge Alsup last year ruled otherwise.

"So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API," Alsup wrote in his ruling. "It does not matter that the declaration or method header lines are identical. … Duplication of the command structure is necessary for interoperability."

[ Want some background? Read Google Beats Oracle Patent Claim. ]

Prior to his ruling, the Court of Justice of the European Union said as much in a separate case when it found that neither the functionality of a computer program nor the format of its data files qualify for copyright protection.

Oracle disagrees that the functional nature of code makes it different from literary text. Its filing asserts, "This notion of software exceptionalism for any code is wrong." And it contends, "Interoperability is irrelevant to copyrightability."

Google declined to comment. But groups like the Electronic Frontier Foundation that have sided with Google on this issue contend that interoperability cannot be ignored. "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation," EFF attorney Julie Samuels wrote in a blog post last May.

To support Oracles position, the more than two dozen attorneys listed on the company's appeal have constructed a fictitious character, Ann Droid, who copies liberally from actual author J.K. Rowling's Harry Potter and the Order of the Phoenix to produce a hypothetical knockoff that gets her sued for copyright infringement. The justification that Ann Droid offers is that she wrote most of the words herself and that what copying she did was necessary to appeal to the Harry Potter fan base.

"Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid -- and has offered the same defenses," the filing claims.

Groklaw, a popular legal analysis blog that has consistently been skeptical of Oracle's position, finds the analogy wanting. "Software is not a novel," Groklaw states. "The copyright rules are not identical. Duh. And that's not an accurate or fair description of what Google did."

Google has until March 28 to file a reply.

About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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