Oracle vs. Google – Some people hate all IP
The functional aspects of a computer program can be protected by patent law. The creative portion (expression of the idea but not the idea itself) can be protected by copyright law. In detemining which portions of a computer program are protectible by copyright law, the courts use an abstraction-filtration-comparison test. This test is as complicated as it sounds. Basically, it involves three steps. In the abstraction step, the court first breaks down the allegedly infringed program into its constituent structural parts. In the filtration step, the court sifts out all non-protectable material, including ideas and expression that is necessarily incidental to those ideas. In the final step, the court compares the remaining creative expression with
the allegedly infringing program. If you understand what that means, good for you, because I do not.
In the Oracle vs. Google appellate decision of 2014, Google argued that software programs should be entitled to only Patent protection and not Copyright protection. Particularly, according to the decision, Google opined that patent protection for such programs, with its insistence on non-obviousness, and shorter terms of protection, might be more applicable, and sufficient.
I was taken aback by this argument because I personally have attended an IP forum in which a Google representative argued that patent protection for computer program was too strong (the AIPLA general meeting in Arlington, VA of 2014). Yet, in this context, they argue that copyright protection is inappropriate.
This is strange because copyright has many exceptions that patent law does not.
If a software program is only protected by copyright, you can copy the functionality, you just have to bother to write your own code. According to Sega v. Accolade, you can even copy the source code while reverse engineering the program in order to find hidden functional elements (of course click-though contract terms may prevent this).
Further, Section 107 of the Copyright Act includes the fair use defense. A particular use can be determined to be fair based upon (1) “the purpose and character
of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;” (2) “the nature of the copyrighted work;” (3) “the amount and substantiality of the portion used in relation to the copyrighted
work as a whole;” and (4) “the effect of the use upon the potential market for or value of the copyrighted work.”
There is also the scene a faire doctrine which denies protection to program
elements that are dictated by external factors such as the mechanical specifications of the computer on which a particular program is intended to run or widely accepted programming practices within the computer industry.
Patent law basically does not these types of exceptions. It doesn’t make sense to complain about patent protection for softare programs, but then also complain that there should not be copyright protection for software programs.