EU Court Of Justice: No Copyright On Computer Functionality Or Languages

In my view, the Oracle v. Google case may be headed in the same direction.

Judge Alsup has let the case go to the jury to determine whether the "structure, sequence and organization" (SSO) of the Android platform infringes either the compilable code or the documentation of 37 of the 166 total API packages constituting a part of the Java platform. But the judge has reserved for his exclusive determination, after a verdict is entered, whether such SSO is even protectible under U.S. copyright law. In instructing the jury, the judge merely told the jurors to assume for purposes of their deliberations that the SSO was protectible under copyright and to decide the case based on that assumption. This means that, if Oracle loses on the verdict, its copyright case is dead. If it wins, then and only then will the judge need to address the ultimate legal question of whether the SSO can be protected by copyright at all. If the case does reach that point, he will be able to decide the question based on a full presentation of evidence by both parties and that in turn will make any decision he renders far less vulnerable to being overturned on appeal.

I am not saying that the judge will necessarily support Google in its claim that APIs should not be covered by copyright. I do say that Judge Alsup is nobody’s fool and is playing this smart, letting Oracle play out its case in full and only then stepping in to say whether its case is even legally supportable.

Of course, the judge could also have rendered a definitive ruling one way or the other in the pretrial phase. But there are some areas of law where the principles are pretty clearly articulated but get knotty in their application and this is one of them. Yes, U.S. copyright law, like EU law, specifies that something that is functional or a system or a method of operation, etc. cannot be protected by copyright. But what exactly does that mean in the factual context of APIs and programming languages? Maybe those extremely well-versed in what APIs are and what they do can answer that clearly for others who are also well-versed. But in a court of law, a lot can get lost in translation and, in the absence of a clear factual record, skilled lawyers have all sorts of room to confuse and confound the issues as they apply abstract legal rules to a murky factual record. Because of this, the judge is letting it play out through a full jury verdict while reserving the right to rule definitively on the issue until after the verdict.

In this context, Oracle has plenty of reason to be nervous. If it loses before the jury, it loses; if it wins, it still may lose. And, as for the case being a bad precedent, that remains to be seen depending on how the judge and any appeals court may ultimately rule on this issue. For the moment, U.S. law remains sane on this point and nothing bad has happened as yet apart from an overbearing company attempting to pour vast resources in hopes of gaining short-term advantage to the long-term detriment of the developer community.

This is ultimately more by luck than judgement. Because the main legal perspective is utterly, fundamentally flawed. The notion that there is a principled difference between idea and expression simply does not work with software. In software everything is an abstraction, which means everything has some generality. There is no dividing line anymore.

The idea/expression rule of thumb only made sense because it was a simple proxy for actual market effect. And there is the nub of the matter: no-one really wants to measure what the real market effects are for any of these rules. The law is unhinged from reality. It is just stupid.

For copyright to make sense, we should get rid of all the lawyers and remove it from the legal domain. Copyright is really a matter of data measurement and analysis. If the negative effects of restricting and paying for movement of information are outweighed by the positive effects of creating information, let us measure that . . .

We built the internet, but then we want to rule it as if it were a small stack of manuscripts. It is ridiculous.

This is great news