from the fingers-crossed dept
But, of course, CAFC is not the final stop in the line (even if some patent trolls wish it were). As was fully expected, Google has now asked the Supreme Court to hear an appeal on the case. Google's petition is a good read highlighting the "disarray" in the various different circuits about whether or not copyright law applies to APIs. The law itself (Section 102(b)) is pretty explicit: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Many of us clearly think that APIs fit under this as a system or method of operation. But, others disagree.
Some courts follow the statute’s plain meaning, holding that Section 102(b) precludes copyright protection for all systems or methods of operation, including those in computer programs. See, e.g., Lotus, 49 F.3d at 815. Like the Federal Circuit, however, other courts have rejected the statutory text and held that Section 102(b) is merely a reminder of the dichotomy between ideas (which are not copyrightable) and expressions of ideas (which generally are). See, e.g., Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1234 (3d Cir. 1986). In those courts’ view, a “method of operation” embodied in a computer program is copyrightable so long as its creator could have designed it in different ways.Having shown the circuit split to help entice the Supreme Court to hear the case, Google then explains why it's simply wrong to interpret the law to say that APIs are covered by copyright.
The Federal Circuit’s error is confirmed by the extent to which it would eliminate a fundamental distinction between patent and copyright law—and thus allow copyright to be used as an end-run around the limits on patent protection, including this Court’s recent decisions on patent-eligibility.Basically, you may be able to patent a system and method (as many patents themselves note in their titles), but it shouldn't be copyrightable.
While the Supreme Court has a history of being pretty bad on copyright law, it has been pretty good (especially lately) on patent law -- in particular smacking down CAFC -- and the Google filing plays up to that fact, arguing that this is just another case of CAFC interpreting the law incorrectly.
The Federal Circuit’s error is all the more glaring because it is essentially the same error for which this Court has repeatedly reversed the Federal Circuit in patent cases. The court of appeals criticized the district court for confusing “the threshold question of what is copyrightable—which presents a low bar—and the scope of conduct that constitutes infringing activity.” App. 17. It then transformed Section 102(b)’s limits on copyright eligibility into just one of several factors to be considered as part of a fair-use defense....Hopefully the Supreme Court recognizes this, takes the case and... (most importantly) doesn't make things worse.
The Federal Circuit had similarly held that the limits on patent eligibility are minimal and that other requirements of the Patent Act do the real work in limiting monopoly protections. See, e.g., Research Corp. Techs., Inc. v. Microsoft Corp., 627 F.3d 859, 869 (Fed. Cir. 2010) (referring to Section 101 of the Patent Act as a “coarse eligibility filter”). This Court has repeatedly corrected that misperception in recent years, stressing the importance of enforcing Section 101’s limits on patentable subject matter—including for software-related patents. See, e.g., Alice, 134 S. Ct. 2347; Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013); Mayo, 132 S. Ct. 1289; Bilski v. Kappos, 130 S. Ct. 3218 (2010). But the Federal Circuit would now eviscerate the analogous limitation on copyright eligibility for some of the same types of works.