Subject Matter II 1 Software Copyright Oren Bracha, Summer 2015

17 U.S.C. §102(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 2

Data Structures: Examples Data Formats – E.g. Word files; Excel files; Matlab files Computer Languages – E.g. C+; Basic; Java Application Program Interfaces (API) – E.g. Java Libraries APIs Structure of user interface – E.g. Lotus command hierarchy 3

Lotus Development Corporation v. Borland International, Inc. (1 st Cir. 1995) 4

The menu command hierarchy is uncopyrightable method of operation under §102(b). – When specific words are essential for operating something they are part of a method of operation. Concurrence (Boudin J.) – Lock-in problem due to past investment and network externalities (e.g. QWERTY). – Alternative ground: “privileged use” 5

Google v. Oracle (Fed. Cir. 2014) 6

Java API Declarations 7 API package:java. Lang Class: math Methods: max Declaration:public static int max(int x, int y)

Google v. Oracle (Fed. Cir. 2014) 8

Rejection of Lotus: the expression of methods of operation is copyrightable. Merger only when there is only one way to write a declaration for the idea/function of a class library. – The availability of options are measured at the time of creation not at copying! Scene-a-faire – Measured in reference to the original creator not copier. Interoperability is irrelevant at copyrightability stage; only relevant for fair use. – Altai filtering including interoperability is done in reference to the creator not the copier. 9

SAS Institute Inc. v. World Programming Ltd. (ECJ 2012) A simple SAS Script 10

SAS Institute Inc. v. World Programming Ltd. (ECJ 2012) Protection under the directive extends to the forms of expression of a computer program (i.e. source and object code) and the preparatory design work capable of leading to the subsequent creation of such a program Functionality, language and data formats are not “expression.” But: – Creating similar language or data formats elements with the aid of access to the relevant code of the original program constitutes copying expression. – Door left open to protecting languages and data formats under the information society directive if intellectual works of authorship. 11

Directive 2009/24/EC Recital 10 The function of a computer program is to communicate and work together with other components of a computer system and with users and, for this purpose, a logical and, where appropriate, physical interconnection and interaction is required to permit all elements of software and hardware to work with other software and hardware and with users in all the ways in which they are intended to function. The parts of the program which provide for such interconnection and interaction between elements of software and hardware are generally known as ‘interfaces’. This functional interconnection and interaction is generally known as ‘interoperability’; such interoperability can be defined as the ability to exchange information and mutually to use the information which has been exchanged. 12

Directive 2009/24/EC Art 1(2) Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive. Recital 11 For the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive. In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive. In accordance with the legislation and case-law of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright. 13