cyckV4

360 COPYRIGHTABLE SUBJECT MATTER
under Section 102(b) had to come with “instructions for use.” 126 F.3d at 980. Because
the taxonomy there at issue had no instructions for use, among other reasons, it was held
not to be a system. By contrast, the API at issue here does come with instructions for use,
namely, the documentation and embedded comments that were much litigated at trial.
They describe every package, class and method, what inputs they need, and what outputs
they return—the classic form of instructions for use.
In our circuit, the structure, sequence and organization of a computer program may
(or may not) qualify as a protectable element depending on the “particular facts of each
ease” and always subject to exclusion of unprotectable elements. Johnson Controls v.
Phoenix Control Sys., 886 F.2d 1173, 1175 (9th Cir. 1989). Contrary to Oracle, Johnson
Controls did not hold that all structure, sequence and organization in all computer
programs are within the protection of a copyright. On a motion for preliminary
injunction, the district court found that the structure, sequence and organization of the
copyrighted program, on the facts there found, deserved copyright protection. (The
structure, sequence and organization features found protectable were not described in the
appellate decision.) On an appeal from the preliminary injunction, our court of appeals
merely said no clear error had occurred. Again, the appellate opinion stated that the extent
to which the structure, sequence and organization was protectable depended on the facts
and circumstances of each case. The circumstances there are not the circumstances here.
In closing, it is important to step back and take in the breadth of Oracle’s claim.
Of the 166 Java packages, 129 were not violated in any way. Of the 37 accused, 97
percent of the Android lines were new from Google and the remaining three percent were
freely replicable under the merger and names doctrines. Oracle must resort, therefore, to
claiming that it owns, by copyright, the exclusive right to any and all possible
implementations of the taxonomy-like command structure for the 166 packages and/or
any subpart thereof —even though it copyrighted only one implementation. To accept
Oracle’s claim would be to allow anyone to copyright one version of code to carry out a
system of commands and thereby bar all others from writing their own different versions
to carry out all or part of the same commands. No holding has ever endorsed such a
sweeping proposition.
CONCLUSION
This order does not hold that Java API packages are free for all to use without
license. It does not hold that the structure, sequence and organization of all computer
programs may be stolen. Rather, it holds on the specific facts of this case, the particular
elements replicated by Google were free for all to use under the Copyright Act.
Therefore, Oracle’s claim based on Google’s copying of the 37 API packages, including
their structure, sequence and organization is DISMISSED.
IT IS SO ORDERED.
Question:
1.) Look at the penultimate paragraph of Judge Alsup’s opinion, which begins “in
closing.” How does it resonate with this quotation from Morrissey: “We cannot recognize
copyright as a game of chess in which the public can be checkmated”?