On June 29, 2015 the US Supreme Court decided to turn down Google’s request to hear its appeal of the Federal Circuit’s ruling from a year ago, that Oracle’s declaring code for pre-programmed Java routines is eligible for copyright protection.  See my May 27 2015 post for more background.  This means the case will now go all the way back to US District Court in California, for a determination of whether or not Google’s use of such copyrighted declaring code is an allowable use (“fair use”) under copyright law.

So now we are left with two related circuit court decisions affirmed by Supreme Court inaction, the Lotus decision (that simple commands to control a program’s function are not copyrightable) and this Federal Circuit decision (that declaring code to control a program’s function is copyrightable).  One simple way to reconcile the two rulings is to say that simple command syntax/words are not copyrightable (Lotus), but sequences of programming code are copyrightable (the Federal Circuit’s Oracle decision).

An important point made by the Federal Circuit is that for the purpose of determining copyright eligibility, it does not matter what the code is used for.  The only thing that matters is the expressive choices made by the author, and the other ways the software could have been written.  By its decision, the Supreme Court apparently endorses this view (…which is different from what the Lotus court said).  Here, nothing compelled Oracle to make the specific decisions it made regarding how Java programs would be called/enabled, which was the key to copyrightability.  It did not matter that others, in calling these Java programs, had no choice but to copy the exact same form/format mandated by Oracle.

Is this a good thing?

Well, if you have written program code and defined your application program interface (API) by the use of sequences of declaring code to call various functions of the program code, today’s decision preserves your ability to mandate the terms under which such declaring code will be used by others.  If your APIs are more in the realm of simple command words/statements (see Lotus) than they are sequences of declaring code like the Java declaring code of Oracle, be mindful that Lotus remains good law, and hence continues to cast doubt on the copyrightability of such APIs.

Today’s decision to not hear the appeal means that the state of the law regarding copyrightability of API commands/code sequences remains more muddled than it needs to be.  A strong statement from the Supreme Court would have been a welcome clarification.