Structure, sequence and organization: Difference between revisions

Revision as of 18:02, 20 May 2014

Revision as of 10:23, 27 June 2014

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==Early adoption and criticism==

For the next few years most, but not all, circuit courts accepted the ''Whelan'' decision on SSO in one form or another.{{sfn|Kappel|1991|p=705}} This resulted in a period of tight protection for software, since almost everything other than the broad purpose of a software work would be protected. The only exception was where the functionality could only be achieved in a very small number of ways. In these cases there could be no protection due to the [[Merger doctrine (copyright law)|merger doctrine]], which applies when the expression and the idea are inextricably merged.{{sfn|Abramson|2001|p=57}}

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==Later decisions==

Both the code and the "look and feel" of a software product have structure, sequence and organization.

Technically there is little or no connection between the two.

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In August 2010 [[Oracle Corporation]] initiated a lawsuit against [[Google]] claiming a combination of patent and copyright violations related to Google's implementation of the [[Java (programming language)|Java programming language]] in Google's [[Android (operating system)|Android operating system]].

On 7 May 7, 2012 a jury decided that Google had infringed the SSO copyright of 37 Java [[Application programming interface]] (API) packages, but were unable to decide whether this was fair use.{{sfn|Ritti|2012}}

The judge asked both Google and Oracle to provide further detail of their positions over whether an API or a programming language such as Java can be copyrighted.

He also asked for both sides to comment on a ruling by the [[European Court of Justice]] in a similar case that found "Neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection."{{sfn|King|Farber|2012}}

On 31 May 31, 2012 the judge ruled that "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API."{{sfn|Mullin|2012}}

In reviewing the ''[[Oracle v. Google]]'' case history, the court noted:{{blockquote|...the above summary of the development of the law reveals a trajectory in which enthusiasm for protection of "structure, sequence and organization" peaked in the 1980s, most notably in the Third Circuit’s ''Whelan'' decision. That phrase has not been re-used by the Ninth Circuit since ''Johnson Controls'' in 1989, a decision affirming preliminary injunction. Since then, the trend of the copyright decisions has been more cautious. This trend has been driven by fidelity to Section 102(b) and recognition of the danger of conferring a monopoly by copyright over what Congress expressly warned should be conferred only by patent. This is not to say that infringement of the structure, sequence and organization is a dead letter. To the contrary, it is not a dead letter. It is to say that the ''Whelan'' approach has given way

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*{{cite journal |ref=harv |url=http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2911&context=flr

|journal=Fordham Law Review

|volume=59 |issue=4 |date=January 1, 1991-1-1 |year=1991

|title=Copyright Protection of SSO: Replete with Internal Deficiencies and Practical Dangers

|first=Cary S. |last=Kappel

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|url=http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2012/05/07/jury-says-google-infringed-but-it-can-t-agree-on-fair-use.aspx

|work=LexisNexis

|date=05/07/May 7, 2012 |year=2012

|title=Jury Says Google Infringed, But It Can't Agree On Fair Use

|first=Melissa |last=Ritti