IEEE Power Electronics Magazine - March 2020 - 52

Patent Reviews

by Art MacCord

What Does Copyright Protect
About Software?

n the June 2019 issue, I reported
on a U.S. Supreme Court decision that incentivized registering
copyrights early, such as the software used for electronics control.
The Court has agreed to hear another copyright case, one that is ex pected to illuminate how much of a
software program's source code can
actually be protected. Google v. Oracle involves a lawsuit brought by
Oracle when Google started to offer
Android software for smartphones
that included some of the Java Standard Edition (SE) application programming interface (API) code.
The APIs included both declaring
and implementing code; Google copied the declaring code including its
structure, sequence, and organization
(SSO), but not the implementing code.
Oracle's Java SE was intended to
enable programmers to write code
once and then have it work in various
operating system (OS) environments.
When Google was preparing its
Android software, it wanted to take
advantage of the programmer's familiarity with those codes so it could
induce them to write apps for its new
OS, motivating its choice of copying
the Java APIs.
Oracle sued in 2012 and the parties have been litigating ever since.
The latest decision by the Court of
Appeals for the Federal Circuit found
Digital Object Identifier 10.1109/MPEL.2019.2959198
Date of current version: 19 February 2020

IEEE POWER ELECTRONICS MAGAZINE

contemplated in considering fair use.
that Google's copying of the APIs
The first is an inquiry into the purpose
made it liable for copyright infringeand character of the use, including
ment. The potential damages, which
whether such use is of a commercial
are not yet determined, could be in
nature or is for nonprofit educational
the billions of dollars.
purposes. Also involved is whether
At Google's request, the U.S.
the new work is transformative or disSupreme Court has agreed to review
places the original. To be transformathe case, focusing on two questions:
tive, the second work must either
1) Does copyright protection extend
alter the original with new expresto a software interface?
sion, meaning, or message or it must
2) Does Google's use of a software
serve a new purpose distinct from
interface in the context of creating
that of the original. Google argued
a new computer program constithat its work was transformative betute fair use?
cause Java was originally written
The first question involves the
for desktop and laptop computers,
copyright merger doctrine. Copyright
while Google was applying it to
does not protect ideas, only the
smartphones, but
expression of ideas,
the court of appeals
i.e., the way an idea
dismissed that aris expressed. The
The appeals court
gument because
merger doct r i ne
found that only
there had already
applies if the nature
170 lines of code were
been s o m e J a v a
of the item for which
necessary to write the
s m a r t phones becopyright protection
APIs in Java while
fore Google reprois claimed is so tied
Google copied 11,500
duced the APIs.
to the idea being exAnother factor in
pressed that there
lines, weighing against
fair
use analysis is
are only limited ways
finding fair use.
the nature of the
to express the idea,
copyright. That is,
so that expression
recognizing that some items are closcannot be protected because it has
er to the core of intended copyright
merged with the idea. Since APIs
protection than others, i.e., whether
must be used for software applicathe work is informational or creative.
tions to be compatible, the merger
Here, the functional aspects of the
doctrine may apply.
APIs and their SSO could indicate a
The second question regards
finding of fair use.
whether Google's copying is considThe amount and substantiality of
ered a fair use for which it should
the portion used is another factor in
have no liability. Several factors are

z March 2020

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