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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Book Chapter

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Boston University School of Law




In Oracle v. Google (2015), the Federal Circuit addressed whether the " method header " components of a dominant computer program were uncopyrightable as " merging " with the headers' ideas or function. Google had copied the headers to ease the ability of third-party programmers to interact with Google's Android platform. The court rebuffed the copyrightability challenge; it reasoned that because the plaintiff's expression might have been written in alternative forms, there was no " merger " of idea and expression. But the Oracle court may have been asking the wrong question. In Lotus v. Borland (1995), the owner of a dominant spreadsheet program sought to prevent a new competitor's program from making available a set of " command menu " headers based on the dominant program's menus. The defendant also wrote its own, original command menus, but provided the copied menus as an option to relieve customers who, migrating from the dominant spreadsheet, would otherwise have had a substantial burden to master new terms and rewrite macros. In assessing the legality of the copying in Lotus , the First Circuit started its inquiry not with a question about how the plaintiff's program might have been written, but rather with how the program actually was written. It then identified the menu commands as " methods of operation " because they were necessary to make the actual program.


A shortened version “How Oracle Erred” was published in the anthology, Copyright Law in an Age of Limitations and Exceptions, Ruth L. Okediji, ed., Cambridge University Press (2017).



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