I normally reserve this space to talk about copyright cases that affect authors, but since Congress defines computer software as a “literary work,” I’m feeling free to pass this along . . .

What are courts supposed to do when Congress doesn’t understand the logic of its own statutes?  Decades ago Congress made the decision to protect computer software under copyright law, something the public has gotten used to over years, and to the extent we want to stop the piracy and counterfeiting of our favorite programs it seems unproblematic.  Unfortunately, there’s a messy side to the issue that’s just been raised in a petition filed before the Supreme Court appealing a very controversial decision by the influential Federal Circuit Court of Appeals.

A good starting point for understanding the case is recognizing that software is actually a kind of machine, a totally functional work that is, counter-intuitively, defined as a “literary work” in the copyright statute.  Think of the app on your phone that lets it be used as calculator.  Normally, we would think of a calculator as the sort of work that would be protected exclusively under patent law [we all think of it as a type of machine], so why protect the software that turns your phone into a calculator under anything other than patent law? Isn’t it a virtual machine.  If you think hard enough about the analogy, you won’t be surprised to learn that the Patent Office does protect innovative software as a category of machine.  This is why outside the blatant counterfeiting context, most law professors believe that software should be governed solely by patent law with its rigorous requirements for protection.

Think about it:  A new aerodynamic car design, no matter how attractive to the eye, is currently only protectable under patent law.  It must be new, useful, and, most importantly, a non-obvious [read:  “significant”] advance over prior car designs.  If it qualifies, it will receive protection for 20 years.  One cannot use copyright law, with its longer term of life-of-the-author plus 70 years and lack of significant qualitative requirements to shut down competitors.  Before Congress situated computer software into the copyright act, Judges were able to draw pretty clear lines between aesthetic creations covered by copyright and functional products covered by patent.

This brings us to the case that I referenced earlier, Oracle v. Google, which raises the issue of whether Oracle can use copyright law to maintain exclusive rights in its Application Programming Interfaces [its “API’s”].  API’s are parts of software that specify component requirements, in other words what another programmer needs to know about the software in order to write a compatible program.  For example, if I want to write an app for your phone that lets you donate easily to WILL Radio in Champaign, I need access to the API that describes the input and output requirements of your phone’s existing software.  Well, the Federal Circuit (normally a specialized patent court) has held recently that Oracle’s API’s are protected by copyright law, threatening the ability of programmers around the country to be able to write compatible new apps without obtaining expensive licenses.  This could be a game changer in the industry that would eventually raise prices to consumers and diminish our access to creative new apps.

There is no claim that the Oracle API is worthy of a patent (in fact, it’s quite boring), but because of Congress’s jamming the square peg of computer software into the round whole of copyright, the Supreme Court may soon have to sort out this mess and hopefully explain why programmers should remain free to compete with each other in app market.

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