The Epistemological Shift in Digital Rights: How Einstein Couldn’t Patent “E=MC2,” but Oracle May Soon Copyright a Whole Computer Language

By Jack Fritz

Don’t be fooled by James Cameron’s propaganda – when a ship is sinking, a desperate passenger on board will grasp at anything and stop at nothing for survival.  In the sea of copyright litigation, the Java computer language is this frazzled passenger, and Oracle is the sinking ship.

Oracle has acquired the patents for Java from Sun Microsystems and is now suing Google over them.  Java is a powerful, object-based computer language, so versatile that it can easily be implemented in html code (or its cousin java-script) to create websites and cell phone applications.  Google’s mobile operating system, Android, which is running most cell phones around the world, is allegedly founded on the Java API.

If Java is so popular then why is the Oracle ship sinking?  Initially, Oracle claimed that Google was infringing on seven patents, but before opening arguments could even begin, five of those patents were thrown out.  With regard to the two remaining, allegedly infringing patents, Oracle’s projected line of arguments relies primarily on copyright infringement of the two patent technologies.

Google’s argument is that the Java API is not copyrightable because it is a functional item.  Copyright law only protects tangible mediums of expression, not ideas, mechanisms, or operations.  For example, one notable case held that an accountant’s columnar notebook was not copyrightable despite its originality and its tangible fixation, because it was a functional item that facilitated tabulation.  Similarly, most courts have held that computer code is not copyrightable because of its functionality.  For this reason, the task of software protection has largely been relegated to the realm of patent law.

Oracle’s argument relies on outdated precedent and cases that were decided in an era before iPads and smartphones existed.  Oracle’s first salient argument is that the Java API is a literary work, and therefore a copy of any portion of it is an infringement.  Google did in fact literally cut, paste, and use portions of the Java API in its development of Android.  However, after these actions led to lawsuits, Google wrote brand new code as a work-around and took out all copied code from Android, thereby preventing Oracle from raising any claims in equity.  But clearly, the Java API is not merely text like the words in a novel – it is part of a system of functions that affects how a high-level computer language interacts with hardware on a touch screen interface.  Like E=MC2, Java is a series of equations, capable of receiving a variable or command and producing data.  And if Einstein couldn’t patent E=MC2, Oracle’s patent claims for the general Java API should also be impermissible.  Further, Oracle should be denied copyright protection for the Java API, as Java is a highly functional API and therefore categorically excluded from copyright protection.

Oracle’s second argument is that Google knew that the Java API was copyrighted since there are various emails indicating that Google co-founder Sergey Brin knew or should have known that a license was required in order to use Java.  However, copyright law does not have a state of mind requirement.  The work is a copy or it is not; good faith or bad faith is not a central issue, and prior belief that a work requires a license has no bearing on liability.

If Oracle wins its copyright arguments, there will be a boom and revival in software copyright litigation.  But it’s more likely that Oracle’s arguments will sink or they will settle.


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Filed under Copyrights, Patents, Software, Technology

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