The danger of false analogies in software copyright cases was readily apparent in last Thursday’s oral argument in Oracle v. Google. (A recap of the oral argument can be found here.)
False analogies have long been a problem in software copyright cases. Computer programs are considered literary works under the Copyright Act. In 1986, the U.S. Court of Appeals for the Third Circuit in Whelan v. Jaslow noted this classification of computer programs as literary works, and observed that “one can violate the copyright of a play or a book by copying its plot or plot devices.” Analogizing computer programs to plays or books resulted in the Third Circuit granting overly broad protection to Whelan’s computer program. In essence, the court found only one unprotectable idea in Whelan’s program: its basic purpose, the efficient management of a dental laboratory. The court considered all other aspects of the program, including its structure, sequence, and organization, to be protectable.
Later courts recognized the flaw in this analogy. In 1992, the Second Circuit in Computer Associates v. Altai acknowledged the “essentially utilitarian nature of a computer program.” Thus, “compared to aesthetic works, computer programs hover even more closely to the elusive boundary line described in Section 102(b)” of the Copyright Act. On this basis, the Altai court developed the nuanced abstraction-filtration-comparison methodology for separating idea from expression in computer programs. The court looked at program elements at each level of abstraction, starting with the program’s ultimate function and ending with its code, to determine whether the element’s inclusion was dictated by considerations of efficiency; was required by factors external to the program, such as mechanical specifications or compatibility requirements; or was taken from the public domain.
The Ninth Circuit in Sega v. Accolade agreed with Altai. When discussing the second fair use factor, the nature of the work used, the Sega court noted that this factor “reflects the fact that not all copyrighted works are entitled to the same level of protection.” The court observed that “to the extent a work is functional or factual, it may be copied,” and that “works of fiction receive greater protection than works that have strong factual elements, such as historical or biographical works, or works that have strong functional elements, such as accounting text books.” Computer programs, the Sega court said, “are, in essence, utilitarian articles—articles that accomplish tasks.” Accordingly, “they contain many logical, structural and visual display elements that are dictated by the function to be performed, by considerations of efficiency, or by external factors such as compatibility requirements and industry demands.”
Similarly, in 2000, the Ninth Circuit in Sony v. Connectix accorded computer programs “a lower degree of protection than more traditional works” when applying the second fair use factor. Indeed, the Federal Circuit in its discussion of fair use in its prior decision in this case recognized that “some works are closer to the core of intended copyright protection than others.”
Nonetheless, throughout this litigation, Oracle has repeatedly analogized the Java API to traditional literary works, such as the Harry Potter novels. In the briefs on appeal, Oracle and its amici relied on fair use cases dealing with a wide variety of traditional works, including songs, biographies, television broadcasts, unpublished letters, and photographs. And in the oral argument, right from the beginning, Oracle’s counsel analogized Google’s use to a film producer taking the most recognizable features of an author’s short story and adapting them to a film. Unfortunately, this analogy stuck, and the judges kept returning to it throughout their questioning.