Oracle v Google: US-NZ Interoperability

POSTED BY Rick Shera
05 June 2012

posted in | Intellectual Property | Copyright



Rather than reading distillations of the Oracle v Google decision on copyrightability of application programming interfaces (APIs), anyone at all interested in the area should read Alsup J's judgment itself.  It is excellent; both in its analysis of what APIs are and in its traverse of the law on copyright in computer programs.  Reminds me a little of Cowdroy J's judgment in the iiNet case in terms of its lucidity (although at only 41 pages vs 144 for iiNet, Alsup J gives Cowdroy J a lesson in economy!)

There are many interesting aspects of the decision but, of course, as with any decision from another country, we need to take care not to just assume it is automatically applicable in New Zealand.  For example, we do not have a statutory definition of "computer program" in our Copyright Act, Nor do we have a statutory rendition of the idea-expression dichotomy, which is found in section 102(b) of the Copyright Act (US), and which was a central pillar supporting Alsup J's decision:

Sect. 102. Subject matter of copyright: In general


(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.

Having said that, I don't think those differences would be fatal to a similar finding on similar facts if they arose here in New Zealand.

One of the repeated themes in the decision that is however replicated here in New Zealand is interoperability as an exception to copyright protection.  Here Alsup J adopts the anslysis from the leading case of Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992) at 1526:

In summary, the record clearly establishes that disassembly of the
object code in Sega’s video game cartridges was necessary in
order to understand the functional requirements for Genesis
compatibility. The interface procedures for the Genesis console
are distributed for public use only in object code form, and are
not visible to the user during operation of the video game program.
Because object code cannot be read by humans, it must be
disassembled, either by hand or by machine. Disassembly of
object code necessarily entails copying. Those facts dictate our
analysis of the second statutory fair use factor. If disassembly of
copyrighted object code is per se an unfair use, the owner of the
copyright gains a de facto monopoly over the functional aspects
of his work — aspects that were expressly denied copyright
protection by Congress. 17 U.S.C. § 102(b). In order to enjoy a
lawful monopoly over the idea or functional principle underlying a
work, the creator of the work must satisfy the more stringent
standards imposed by the patent laws. Bonito Boats, Inc. v.
Thunder Craft Boats, Inc., 489 U.S. 141, 159–64, 109 S.Ct. 971,
982–84, 103 L.Ed.2d 118 (1989). Sega does not hold a patent on
the Genesis console.[emphasis by Alsup J]

We don't have the overarching fair use doctrine in New Zealand, but what we do have is a specific exception in section 80A allowing decompilation for the purposes of achieving interoperability.  That exception probably makes Oracle v Google applicable here too, at least on that count.

80A Decompilation of computer program

(1) The lawful user of a copy of a computer program expressed in a low level language does not infringe copyright in the program by decompiling it, if the conditions in subsection (2) are met.

(2) The conditions referred to in subsection (1) are that—

(a) decompilation is necessary to obtain information necessary for the objective of creating an independent program that can be operated with the program decompiled or with another program; and

(b) the information obtained from the decompilation is not used for any purpose other than the objective referred to in paragraph (a).

(3) In particular, the conditions in subsection (2) are not met if—

(a) the information necessary to create the independent program is readily available to the lawful user without decompiling the computer program; or

(b) the lawful user does not confine decompilation of the computer program strictly to the steps that are necessary to create an independent program; or

(c) the lawful user gives the information obtained from decompiling the computer program to any person when it is not necessary for creating an independent program to do so; or

(d) the lawful user uses the information obtained from decompiling the computer program to create a program that is substantially similar in its expression to the program that has been decompiled; or

(e) the lawful user uses the information obtained from decompiling the computer program to do any act that is restricted by copyright.

(4) In this section, decompile means—

(a) to convert a computer program expressed in a low level language into a version expressed in a higher level language; or

(b) to copy the program as a necessary incident of converting it into that version.

Anyway, read the Oracle v Google decision - it's worth it.

Oracle v. Google: Order Regarding Copyrightability of APIs

POSTED BY Rick Shera
05 June 2012

posted in l@w.geek.nzIntellectual PropertyCopyright



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