With the Supreme Court poised to rule on Google v Oracle, the long-running suite of cases involving the copyrightability and fair use of a software interface called an API, the case typifies the difficult fit of copyright protection to software. This Note takes a close look at the code at issue and argues that the nature of software innovation is better suited to patent protection: object-oriented code, such as the Java language at issue in this case, evolves through a process of copying and tweaking, or in coding terms, modularity, abstraction, and inheritance. Thus, an IP regime which allows for such evolution (namely, patent) encourages such innovation whereas copyright, with its broad exclusive rights over derivative works, does not. The ill fit of the copyright regime is also exemplified by the carving out of copyright-free (‘copyleft’) spaces where coders and software innovation thrive. Nor do the concerns motivating copyright protection of protecting creative expression make sense in software development, where the goals are efficiency, productivity, and readability of the code. Thus, the Supreme Court should return to the principles of Baker v Selden and plant the boundary marker keeping § 102(b) functionality on the patent side of copyright-patent boundary.
Ann Defranco, Rebooting Baker v Selden in Oracle v Google 18 Northwestern Journal of Technology and Intellectual Property 219 (2021).