cyckV4

362 COPYRIGHTABLE SUBJECT MATTER
filtration-comparison analysis discussed earlier. As the Tenth Circuit concluded in
expressly rejecting the Lotus “method of operation” analysis, in favor of the Second
Circuit’s abstraction-filtration-comparison test, “although an element of a work may be
characterized as a method of operation, that element may nevertheless contain expression
that is eligible for copyright protection.” Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1372
(10th Cir. 1997). Specifically, the court found that Section 102(b) “does not extinguish
the protection accorded a particular expression of an idea merely because that expression
is embodied in a method of operation at a higher level of abstraction.” . . .
Here, the district court recognized that the SSO “resembles a taxonomy,” but found
that “it is nevertheless a command structure, a system or method of operation—a long
hierarchy of over six thousand commands to carry out pre-assigned functions.” In other
words, the court concluded that, although the SSO is expressive, it is not copyrightable
because it is also functional. The problem with the district court’s approach is that
computer programs are by definition functional—they are all designed to accomplish
some task. Indeed, the statutory definition of “computer program” acknowledges that
they function “to bring about a certain result.” See 17 U.S.C. § 101. If we were to accept
the district court’s suggestion that a computer program is uncopyrightable simply
because it “carr[ies] out pre-assigned functions,” no computer program is protectable.
That result contradicts Congress’s express intent to provide copyright protection to
computer programs, as well as binding Ninth Circuit case law finding computer
programs copyrightable, despite their utilitarian or functional purpose. Though the trial
court did add the caveat that it “does not hold that the structure, sequence and
organization of all computer programs may be stolen,” it is hard to see how its method
of operation analysis could lead to any other conclusion.
While it does not appear that the Ninth Circuit has addressed the precise issue, we
conclude that a set of commands to instruct a computer to carry out desired operations
may contain expression that is eligible for copyright protection. We agree with Oracle
that, under Ninth Circuit law, an original work—even one that serves a function—is
entitled to copyright protection as long as the author had multiple ways to express the
underlying idea. . . .
CONCLUSION
For the foregoing reasons, we conclude that the declaring code and the structure,
sequence, and organization of the 37 Java API packages at issue are entitled to copyright
protection. We therefore reverse the district court’s copyrightability determination with
instructions to reinstate the jury’s infringement verdict. Because the jury hung on fair use,
we remand Google’s fair use defense for further proceedings consistent with this decision.
Notes
• • • • • • • • • •
1.) You may wonder why the Court of Appeals for the Federal Circuit—primarily a
patent court—is deciding a 9th Circuit copyright case. There was also a patent dispute
and so the Federal Circuit had jurisdiction; it declared itself to be bound by 9th Circuit
law, however.
2.) “If we were to accept the district court’s suggestion that a computer program is
uncopyrightable simply because it “carr[ies] out pre-assigned functions,” no computer