tinue to use those macros in the Borland program.
The First Circuit in Borland did not
find the SSO concept helpful in distinguishing protectable and unprotectable structural elements of computer
programs. It held the SSO at issue in
Borland was an unprotectable method of operation under Section 102(b),
akin to the command structure of
The trial judge in the Oracle case relied on the Borland decision, characterizing the Java APIs as a similar type of
command structure. The CAFC chose
not to follow Borland, and interpreted
Altai as applicable only when initial
designers of APIs are themselves constrained in their choices about structuring the interfaces.
Twenty years ago, the Supreme Court
took Lotus’ appeal from the First Circuit ruling. After oral argument, it
split 4-4 on the proper interpretation
of Section 102(b) as applied to computer programs. This left the First Circuit opinion intact, but did not make a
nationwide precedent. The issues left
undecided in that case are before the
Court in the Oracle case.
Several amicus briefs filed in support of Google’s appeal say that if the
Supreme Court does not repudiate
the CAFC’s interpretation of copyright law, the result will likely be a new
surge in litigation over the protectabil-ity of APIs, even though this issue had
seemed to be resolved by appellate
court rulings going back to 1992.
Oracle filed its brief in opposition
to Supreme Court review in December 2014. Google’s petition for review
was put on the Court’s calendar in
January 2015. The Court decided to
ask the Solicitor General to weigh in
on whether the Court should hear
Google’s appeal (which increases the
likelihood the Court will take the case
by 46 times). I predict the Court will
review this case. How the Court will
decide that case remains to be seen.
A ruling in support of interoperability
is much to be hoped for.
Pamela Samuelson ( firstname.lastname@example.org) is the
Richard M. Sherman Distinguished Professor of Law and
Information at the University of California, Berkeley.
Copyright held by author.
expression adopted by the program-
mer is the copyrightable element in a
computer program, and that the actual
processes or methods embodied in the
program are not within the scope of the
The Ninth Circuit in Sega recog-
nized copyright law should not pro-
tect interface procedures because that
would confer patent-like protection on
the functional requirements for com-
patibility without Sega meeting the
stricter standards required for patents.
The trial judge in Oracle expressed
concern that Oracle’s copyright claim
might be seeking to obtain “an exclusive
right to a functional system, process, or
method of operation that belongs in the
realm of patents, not copyrights.” The
court noted that “[b]oth Oracle and Sun
have applied for and received patents
that claim aspects of the Java API.”
In overturning that decision, the
CAFC seemed untroubled about possible overlaps of copyright and patent
protection for APIs. In effect, it read
the procedure, system, and method exclusions out of the statute.
Is SSO Protectable by Copyright?
The idea that program SSO is protectable expression as long as there is
more than one way to accomplish a
programming objective derives from a
1986 Third Circuit ruling in Whelan Associates v. Jaslow Dental Lab. Oracle and
the CAFC have embraced this theory.
The SSO concept was, however, substantially discredited in the Second
Circuit’s 1992 Computer Associates v.
Altai decision. In the years since Altai,
courts have largely moved away from
conceiving of SSO as protectable expression in programs because it fails
to provide a workable framework within which to distinguish protectable
and unprotectable structural aspects
The Second Circuit in Altai emphasized
the “essentially utilitarian nature of
computer programs” makes it difficult to
separate protectable and unprotectable
structural elements in programs.
Altai announced a new “
abstraction, filtration, and comparison” test
for software copyright infringement.
Among the structural elements of
programs that must be filtered out
before assessing infringement are ef-
ficient design elements, elements con-
strained by external factors, and stan-
dard programming techniques.
The Second Circuit in Altai was
quite explicit that elements of programs “dictated by external factors”
such as “compatibility requirements
of other programs with which a program is designed to operate in conjunction” lie outside the scope of
protection that copyright provides to
programs. Such structural similari-ties must be filtered out before courts
can determine whether a defendant
The Ninth Circuit followed Altai’s
lead in holding that interface procedures necessary for achieving interoperability among programs were
functional elements of programs that
copyright did not protect under Section 102(b). In Sega, the court cited
approvingly to Altai for the proposition that computer programs “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.”
Lotus v. Borland
Another important appellate ruling
that supports Google’s theory is Lotus
v. Borland. In 1995, the First Circuit
ruled that Borland had not infringed
by copying the SSO of the Lotus 1-2-3
command hierarchy for use in the emulation interface of Borland’s Quattro
Pro program. Borland had to use the
same commands in the same order so
that users who had constructed macros of frequently executed functions in
the Lotus macro language could con-
Java has achieved
success, which is
why Google wanted
to use Java APIs in
its software platform
for mobile devices.