In computing, source code is any collection of code, written using a human-readable programming language, usually as plain text. The source code of a program is written to facilitate the work of computer programmers, who specify the actions to be performed by a computer by writing the source code. Now just like any other intellectual property asset a company may own, source code is also a critical part of an organization’s IP which needs to be protected as when source code gets leaked, stolen, or left exposed, it becomes detrimental to the organization.
How Can Source Code Be Protected Legally?
The use of copyright, patents, trade secrets and other legal methods to protect important intellectual property (IP) is fundamental. They form the framework for the protection of a software source code. Legal structures of protection are important to build a strong deterrence to source code theft. These factors are especially important when considering insider threats. But these frameworks also act as vital evidence if the worst happens, and can lead to a court dispute over source code ownership.
In copyright legislation around the world, the source code is considered as the intellectual property of the creator. Source code is protected in the same way as a “literary work”, which means it is copyrightable from the moment that the first line of code is created. However, if you want to enforce a copyright against someone making an unauthorized copy, you must obtain a certificate of registration of a copyrightable work from the United States Copyright Office. But copyrighting your work can prove to be problematic for a variety of reasons. For a start, you may have to publish details of your work in copyright documentation, which can give competitors an edge. This is why software and tech companies generally use patents to protect their initial idea and trade secret law to protect the sensitive aspects of it.
In contrast to copyright that protects the expression of the idea, a patent protects the idea itself. Specifically, an innovator may protect inventions in software, such as the algorithms performed by the software or the architecture of the software. A lot of big companies use patent law to protect themselves not just for products they have acted in development or available on the market, but for things that they may create in the future. Now coming to trade secrets, trade secret law is a specific part of intellectual property legislation that protects vital proprietary information against unauthorized use by other parties. Companies obviously cannot register their trade secrets with government agencies, like they would for copyrights, patents, and trademarks. The only way to ensure that a trade secret remains a secret is to keep the information strictly confidential.
Copyright Law Against Source Code Copying
US Copyright Law
Copyright protection attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C.A. § 102). Copyright functions by granting the author the right to exclude others. In the United States, computer programs are literary works, under the definition of the Copyright Act, 17 U.S.C. § 101. Copyright attaches only to original works. A work is “created” when it is fixed in a “tangible medium of expression” for the first time. 17 U.S.C. § 101. Circuits differ on what it means for a work to be fixed for copyright law and infringement analysis.
India Copyright Law
In India, the software can be protected under the Copyright Act, 1957 or the Patents Act, 1970, and a touch of ingenuity, too, is required to protect it correctly. It can be protected under the Patent Act only if it has a technical effect. Otherwise, it can be protected only under the Copyright Act, 1957. Section 2 (o) of the Copyright Act defines "literary work" and includes computer programs, tables, and compilations including computer databases. Thus, it is explicitly protected.
Europe Copyright Law
The European Union Computer Programs Directive controls the legal protection of computer programs under the copyright law of the European Union. It was issued under the internal market provisions of the Treaty of Rome. The most recent version is Directive 2009/24/EC. The first EU Directive on the legal protection of computer programs was Council Directive 91/250/EEC of 14 May 1991. It required (Art. 1) that computer programs and any associated design material be protected under copyright as literary works within the sense of the Berne Convention for the Protection of Literary and Artistic Works.
China Copyright Law
Copyright law is mainly governed by the Copyright Law of the People's Republic of China (PRC). Before the PRC acceded to the Berne Convention, computer software was not treated as a kind of literary work under the Copyright Law. In May 1991, the State Council passed the Computer Software Protection Rules. Based upon these rules, the Measures for Computer Software Copyright Registration were formulated by the then Ministry of Engineering Electronics Industries. These regulations provide a set of rules covering the definitions of various terms and the registration, examination, and approval of computer software programs in the PRC. At the moment both the Berne Convention and these two domestic computer regulations are co-effective. However, in the event of any inconsistencies, the Berne Convention prevails.
Oracle v. Google
Oracle America, Inc. v. Google LLC was a legal case within the United States related to the nature of computer code and copyright law. The dispute centered on the use of parts of Java’s application programming interfaces (APIs), which are owned by Oracle (through a subsidiary, Oracle America, Inc., originating from Sun Microsystems), within early versions of the Android operating system by Google. Google copied roughly 11,500 lines of code from a Java program. Google has admitted to using the APIs, and has since transitioned Android to a copyright-unburdened engine, but argued their original use of the APIs was within fair use.
Oracle initiated the suit arguing that the APIs were copyrightable, seeking US$8.8 billion in damages from Google's sales and licensing of the earlier infringing versions of Android. While two District Court-level jury trials were found in favor of Google, the Federal Circuit court reversed both decisions, asserting APIs are copyrightable and Google's use does not fall under fair use. Google successfully petitioned the Supreme Court to hear the case in the 2019 term, focusing on the copyrightability of APIs and subsequent fair use; the case was delayed to the 2020 term due to the COVID-19 pandemic. In 2021, the Supreme Court ruled in a 6–2 decision that Google's use of the Java APIs fell within the four factors of fair use, bypassing the question on the copyrightability of the APIs. The decision reversed the Federal Circuit ruling and remanded the case for further review.
On August 13, 2010, Oracle sued Google for copyright and patent infringement in the District Court for the Northern District of California.
On April 16, 2012, the copyright phase started and consisted of several distinct claims of infringement: a nine-line range check function, several test files, the structure, sequence, and organization (SSO) of the Java (API), and the API documentation.
On May 7, 2012, after two weeks of testimony, the jury found that Google had infringed on the copyright related to the code, SSO, and documentation of the APIs as well as the range check function, but was deadlocked on whether these uses fell within fair use.
On May 7, 2012, the patent phase began, with the same jury. By the time of trial, Oracle's patent case comprised claims from two patents, 6,061,520 (Method and system for performing static initialization), and RE38104 (Method and apparatus for resolving data references in generated code).
On May 23, 2012, the jury found non-infringement on all patent claims.
On December 4, 2013, shortly following the conclusion of the District Court case, both parties attempted to file additional JMOLs on elements of the ruling which Alsup dismissed, leading to Oracle appealing the decision and Google filing a cross-appeal on the literal copying claim. Because the case involved claims related to patents, the appeal was automatically assigned to the United States Court of Appeals for the Federal Circuit. The judgment was released on May 9, 2014.
In October 2014, Google petitioned the U.S. Supreme Court to hear the case; this request was denied in June 2015.
On May 9, 2016, as ordered by the Appeals Court, a new district court trial began on the question of whether Google's actions were fair use given the prior ruling that the APIs were copyrightable.
On May 26, 2016, the jury found that Android does not infringe Oracle-owned copyrights because its re-implementation of 37 Java APIs was protected by fair use.
On October 26, 2016, Oracle officially filed its appeal.
In 2017, Oracle's appeal was heard by the United States Court of Appeals for the Federal Circuit. On March 27, 2018, the Court ruled in favor of Oracle.
In January 2019, Google filed a petition for writ of certiorari with the Supreme Court of the United States to challenge the two rulings that were made by the appeals court in Oracle's favor.
In April 2019, the Court asked the Solicitor General of the United States to file an amicus brief to outline the government's stance on the case.
On November 15, 2019, the Supreme Court granted certiorari and was expected to hear the case on March 24, 2020. However, the Supreme Court postponed its March argument session on March 16 in light of concerns surrounding COVID-19.
On October 7, 2020, oral arguments were heard via teleconference due to the ongoing COVID-19 pandemic.
On April 5, 2021, the Court issued its decision. In a 6–2 majority, the Court ruled that Google's use of the Java APIs was within the bounds of fair use, reversing the Federal Circuit Appeals Court ruling and remanding the case for further hearing.
The case has been of significant interest within the technology and software industries, as numerous computer applications and software libraries, particularly in open source, are developed by recreating the functionality of APIs from commercial or competing products to aid programmers in interoperability between different systems or platforms. But it should be noted that copying of source code or any such material should constitute a permissible “fair use” of that material because source code is an important part of a company’s IP and if big companies unfairly use the source code of small companies then that will be detrimental to the growth of small companies and also going for litigation against big companies is something small companies cannot afford.
Copperpod provides IP consulting services such as Source Code Review, Infringement Claim Charts, Prior Art Search, Reverse Engineering and advises clients on patentability to give a clear picture of the state of the art to navigate away from the potential prior art and monetize IP assets.