Oracle v Google – Success for Oracle, Java APIs can have copyright protection

On Friday the US Court of Appeals for the Federal Circuit issued its much awaited decision in the Oracle v Google case. The case concerned copyright in APIs (Application Programming Interfaces) written by Oracle in the Java programming language. The APIs were licensed by Oracle and used by software developers in apps for smartphones, PCs and other devices.

Oracle discovered that Google was using 37 of its APIs without permission and filed a lawsuit claiming that Google’s Android mobile operating system infringed Oracle’s patents and copyrights. The jury in the original case found no patent infringement (which was not challenged on appeal) and found that Google had infringed Oracle’s copyright in the 37 Java packages but deadlocked on the issue of Google’s ‘fair use’ defence. However, the District Court denied Oracle’s motion for judgment as a matter of law (“JMOL”) and, following further consideration, ruled in favour of Google (except in respect of a specific computer routine known as “rangeCheck” and eight decompiled security files) finding that of the 37 Java API packages at issue, “97 percent of the Android lines were new from Google and the remaining…..elements replicated by Google were free for all to use under the Copyright Act.”

Both Google and Oracle appealed and at the end of last week the Court of Appeals reversed the decision of the District Court and held that the declaring code and the structure, sequence, and organisation of the 37 API packages were entitled to copyright protection. In coming to this decision, the Court considered whether the work was original (originality being a fundamental requirement for copyright protection) and whether the APIs constituted ideas or the expression of an idea. Under both US and EU law, copyright protection is not available for a mere idea but is available for the ‘expression’ of an idea.

In this case Oracle claimed copyright protection with respect to both: (1) the literal elements of its API packages (being the lines of source code); and (2) the non-literal elements (being the structure, sequence, and organization of each of the API packages). Both parties agreed that the APIs met the originality requirement. However, they disagreed upon whether they were an expression of an idea or just an idea itself. The Court found in Oracle’s favour in respect of both elements, finding that that the non-literal elements of the APIs were more than a mere idea and that Oracle had made a choice in how to express those ideas noting that “there were myriad ways in which the API packages could have been organized”.

The US decision has created an even greater divergence of US and EU copyright law. In 2012, the Court of Justice of the EU ruled that whilst source code itself can be afforded copyright protection, APIs and other functional characteristics (such as data formats and function names) cannot be. In reaching this finding the Court stated that “to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development”. For software businesses looking to operate on a global scale, this divide is not good news.

This isn’t the end of the story. The Court of Appeals has referred the case back to the District Court for further consideration of Google’s ‘fair use’ defence and even after the ‘fair use’ issue has been decided, it is likely that the case will be subject to further appeals.

Top 10 Tips for Protecting Your Database

Top 10 TipsAlmost all businesses will have some sort of database that contains, for example, marketing, sales, or customer data. Most companies appreciate that this information needs to be protected from competitors, but in our experience most businesses could do more to protect their confidential information. My colleague Tom Bourne has set out his Top ten tips for protecting your database.

Photographic copyright: higher but wider?

The IP Kat blog has an interesting discussion of copyright infringement of photographs.

To cut a long story short, the High Court was asked to judge on whether copyright in the following image (created by a Mr Fielder, with the copyright owned by Temple Island Collections):

was infringed by the following image (used by New English Teas on the packaging for one of their products):

The court decided that the answer was yes, since the creators of the second image had been aware of the existence of the first image, and were unable to show they hadn’t copied it.

The case highlights a couple of points of general application.

1. Copyright in photographs

The court confirmed that a photograph will only attract copyright if it is the photographer’s own “intellectual creation”, and the judge suggested three aspects which could make a photograph “original”:

  • “specialities of angle of shot, light and shade, exposure and effects achieved with filters, developing techniques and so on”;
  • “creation of the scene to be photographed”;
  • “being in the right place at the right time”.

In this case, the court had no difficulty finding that the first image was Mr Fielder’s own intellectual creation, by reason of its composition and the visual contrasts involved. However, this is a long way from the traditional English law approach in which (as one IP textbook puts it) “pointing the camera at a subject and pressing the shutter” was considered enough to gain copyright protection.

This suggests that many photographs over which copyright is asserted may in fact fall outside the scope of its protection – though elements such as “being in the right place at the right time” would still seem to cast the net quite widely.

2. Infringing copyright in photographs

Again the traditional approach has been that infringing copyright in a photograph involved actually reproducing that photograph (or a substantial part of it). There was nothing to stop you taking your own photograph which happened to incorporate the same features as another image. As the IP Kat observes, this does seem to extend the scope of protection for photographs to include “an idea, a lay-out or a scheme for such a photograph”.

For this reason, it may be that the losing party in this case will hop on the next bus (sorry…) to the Court of Appeal. In the meantime, though, this case highlights some interesting issues in what can be a very sensitive area for photographers: on the one hand confirming that the bar for copyright protection is higher than previously thought, but on the other suggesting that the scope of protection, if acquired at all, may be wider than previously thought.

Football League cries foul against BBC presenter

The BBC’s technology correspondent, Rory Cellan-Jones, has been Twittering and blogging about YouTube’s removal of a video which he posted on the site.

The video was a 37-second clip of last weekend’s Brentford v Exeter City football match, which Cellan-Jones had taken on his new digital camera. It seems the Football League filed a complaint with YouTube alleging that the clip infringed copyright. YouTube responded by promptly taking down the video and threatening Cellan-Jones’s account with closure if he offended again.

Now it seems to me to be absurd to suggest that Cellan-Jones was infringing “copyright”. There is no copyright in a football match. As for the video footage, Cellan-Jones took this himself using his own camera. As this was (I assume) not in the course of his duties as a BBC employee, he is the owner of the copyright in that footage, not the Football League.

Could the football club (or the Football League) acquire the copyright under the terms and conditions for entry to the match? No: copyright (or future copyright in a prospective work) can only be assigned by an agreement in writing, signed by or on behalf of the copyright owner (ss.90 & 91 Copyright, Designs and Patents Act 1988). So Cellan-Jones remains the owner of the copyright in the footage he took with his camera.

I haven’t been able to access Brentford FC’s ticket conditions, but I assume that (like those for fellow League Two team Leeds United (PDF)) they prohibit the use of video equipment within the ground. Hence – assuming Cellan-Jones bought the tickets himself – he was in breach of his contract with Brentford FC by using his camera. However, that does not give the Football League a basis for claiming under YouTube’s copyright notification procedures.

So, on the face of it, this looks like a spurious claim by the Football League: an example of how automatic detection and notification of alleged copyright infringements can lead to “false positives”. As a result, Cellan-Jones (having had a previous copyright notification) now faces the automatic closure of his YouTube account should a third “infringement” occur. Given that he’s unlikely to want to spend money consulting lawyers on an issue like this, his only practical recourse – other than writing a blog post on one of the world’s most high-profile websites! – may be to check out YouTube’s counter-notice provisions and decide whether he wishes to follow this rather formal (and far from risk-free) procedure.

Still, perhaps Cellan-Jones should count himself lucky. If those lobbying for a “three strikes” law for ISPs were to have their way, people in his position in future could even face the loss of their internet access.

Effective copyright in a networked world

Attended a very interesting and provocative lecture last night by William Patry, Senior Copyright Counsel at Google, Inc. and author of the 6,000-page epic Patry on Copyright, reportedly the world’s largest copyright reference work.

Patry was giving the SCL Annual Lecture in London. This year’s lecture was dedicated to the late Prof Sir Hugh Laddie, who died last year, and the topic, “Crafting an Effective Copyright Law”, was taken from a statement by Sir Hugh that “we do not need a strong copyright law, but rather an effective copyright law”.

The full lecture should be available on the SCL website before too long (and I’ll add a link when it is), and I highly recommend listening to it. Patry’s thesis was that copyright should not be treated as private property, but as a government programme to promote creativity and innovation by legislative means. Therefore copyright laws – and in particular any proposal to extend their scope – should be assessed on the basis of empirical data rather than appeals to what is “right and just” or the “moral case at the heart of copyright” (to quote Andy Burnham’s vacuous justification for extending the term of copyright for sound recordings).

I think Patry’s rhetorical characterisation of copyright as a government programme is a fruitful one, which can encourage a more level-headed assessment of copyright (and indeed other “intellectual property”) laws. Copyright is a good thing, but its effectiveness needs to be scrutinised continually, and it should be remembered its purpose is to benefit society as a whole by encouraging the creation of more copyright works, not simply to enrich copyright owners (not that those two ambitions are mutually exclusive, of course).

Equally, I think Patry overstated the case against treating copyright as a property right. He is correct that referring to copyright as “property” imports a wide range of legal, moral and emotional connotations which can be problematic (“An Englishman’s copyright proprietorship is his castle”, perhaps?). However, there is also a strong pragmatic case for treating copyright as property, in that it allows copyright to be assigned, licensed, bequeathed, valued and so on like other forms of property.

The big lesson, though, is that attempts to use copyright to protect business models that have been superseded by new technologies – not least the growth of high-speed internet connections and the “pervasive network” – is ultimately harmful to society and indeed to copyright owners themselves. Technology is going to drive new ways both of doing business and of accessing copyright material, and copyright owners cannot expect the law to protect them from the hard work of adapting to this. That’s just a bailout by another name.