cyckV4

358 COPYRIGHTABLE SUBJECT MATTER
relevant:
• A belief that Congress’s copyright and patent powers contain an explicit
purposive and utilitarian goal—promoting the progress?
• A belief that utilitarian reasoning in judicial decisions is inherently suspect—
that belief being derived either from the separation of powers or the nature of the
judicial role or both?
• The Jeffersonian tradition described in the earlier excerpt from The Public Domain?
• Absence of specific guidance from Congress about how courts should integrate
new technologies into copyright and patent?
• The idea that a judge’s role is merely that of an umpire who “calls strikes”?
• A belief that literal rather than purposive interpretation is somehow less
political?
• A belief that both literal and purposive interpretation are laden with value
judgments?
2.) Consider your answer to question 1.). Would it have been different if the field of law
was antitrust? Why? Why not?
3.) At the very beginning of his concurrence, Boudin makes a vitally important point
about “error costs” in the context of protecting goods such as software, comparing that
to the error costs of protecting more traditional copyrightable subject matter. What is it?
4.) How does the following quotation resonate with the arguments used by Pitney,
Holmes or Brandeis in INS v. AP? With Jefferson? With Diderot or Condorcet? With the
quote from Felix Cohen that begins Chapter 4 on trademark? Why does Boudin say this
argument is circular?
Now, any use of the Lotus menu by Borland is a commercial use and
deprives Lotus of a portion of its “reward,” in the sense that an
infringement claim if allowed would increase Lotus’ profits. But this is
circular reasoning: broadly speaking, every limitation on copyright or
privileged use diminishes the reward of the original creator. Yet not every
writing is copyrightable or every use an infringement. The provision of
reward is one concern of copyright law, but it is not the only one. If it
were, copyrights would be perpetual and there would be no exceptions.
Oracle America, Inc. v. Google, Inc.
872 F.Supp.2d 974 (N.D. Cal. 2012)
WILLIAM ALSUP, District Judge.
[Oracle v. Google was a closely watched case that concerned the copyrightability
of “API’s”—Application Programming Interfaces. The last word there is the key. The API
governs the way one program works with another. Without knowledge of the API, or the
ability to reverse engineer it, the “interoperability” of programs will be limited. (Imagine
trying to play a piano without knowing which key corresponded to which note.) Oracle
brought suit against Google claiming that Google had violated its copyright in the Java
API’s. Google claimed, among other things, they were not copyrightable subject matter.]