Altai at 21 – A Conference Recap

By TAP Guest Blogger

Posted on November 15, 2013


On October 25, 2013, the Berkeley Center for Law & Technology hosted a day long roundtable discussion to commemorate the twenty-first anniversary of the landmark decision on copyright protection for software, Computer Associates v Altai. The event gathered leading academics and practitioners to discuss the decision’s legacy and the upcoming appellate decision in Oracle v Google.

Prior to the Second Circuit Court of Appeals 1992 decision in Computer Associates v Altai, there were many heated controversies about the scope of copyright protection available to computer programs. Congress had decided that computer programs should be protected as literary works under the Copyright Act 1976, but many questions remained. Of particular importance was the question of whether copyright protection extends to the non-literal elements of a computer program. Lines of code were clearly protectable but what about the general “structure, sequence and organization” of the program? Altai agreed that such elements could be protected. Novels and other literary works receive protection beyond the exact text; therefore, if computer programs are to be protected as literary work, the non-literal elements of the program must also receive some protection.

However, copyright is not absolute. Section 102(b) of the Copyright Act prohibits protection for procedures, processes, systems and methods of operation. Likewise, not every instance of copying a literary work’s nonliteral elements is an infringement. Accordingly, the law needed some test to distinguish lawful from unlawful copying of computer programs. To that end, Altai formulated the “abstraction-filtration-comparison” (AFC) test. To determine infringement, the court must decompose the program into its constituent parts, filter out the non-protectable material, and then compare the remaining material with the allegedly infringing program to see whether the two works are substantially similar.

Twenty one years later, it seems the decision has been successful. As Professor Pamela Samuelson noted from the outset, the AFC test has been subsequently cited with approval by almost all federal circuit courts, and has even been employed outside the area of software. In some ways this acceptance is to be expected. The AFC test does for computer programs exactly what Judge Learned Hand’s famous “abstractions test” did for traditional literary works in Nichols v Universal Pictures over eighty years ago. Nevertheless, making the analogy between computer programs and literary works has always been subject to controversy, and today was no different. Some argued that if we are to persist with this analogy, then the correct comparison is between computer programs and other functional literary works, such as maps and dictionaries. As these latter works only receive thin copyright protection, so too should computer programs. Others in the room questioned the value of reasoning by analogy at all. As Professor Peter Menell reminded us, we must always be aware that this is an issue of significant economic considerations. Rather than focus unduly on legalistic metaphor, we must ultimately make such decisions based on what is the best outcome for society.

However, Altai did not definitively answer every software copyright question. Today some of the issues the court did not touch upon are proving to be highly controversial. For example, Altai provided no guidance on the interpretation of the restrictive terms of Section 102(b) and, as a result, the battle continues in Oracle v Google. Sun Microsystems created the programming language, Java. In 2007, Google announced its new Android mobile device platform. This platform uses some Java technologies. In 2010, Oracle purchased Sun Microsystems, thus acquiring an interest in Java. Oracle then sued Google for copyright infringement resulting from its use of Java. Oracle claims Google has copied the Java Application Programming Interfaces (API), the part of the program that allows Java to communicate with other programs. Google has not engaged in significant copying of the literal code used by the APIs, and as a result, Oracle argues that Google infringed by copying the non-literal structure of the APIs. However, the District Court has found in Google’s favor. The structural elements of the APIs are a system or method of operation and thus unprotectable. Oracle has now appealed, citing Altai to show that non-literal elements of computer programs are protectable.

How ought we proceed in a case such as Oracle? Software companies invest significant sums of money to get new programs to market, a point Douglas Luftman of NetApp, Inc. made clear. Without proper protection this valuable activity may be endangered. On the other hand, if APIs are protected, then other programmers will need to obtain licenses before creating software that interoperates with the protected APIs of earlier software. This may slow the pace of follow-on innovation. Thus the law must somehow balance incentives to create with the need to allow for interoperability. How this could be achieved, however, is an unsettled matter. The District Court in the Oracle case settled the matter by simply removing APIs from copyright protection. But this act of cutting off copyright at the outset troubled some, like Professor Robert Merges. Perhaps allowing copyright to exist in the API but introducing an interoperability defense would be a more tailored approach. Or perhaps copyright could subsist in APIs but the remedy for infringement ought to be altered, maybe even following the Supreme Court’s lead in eBay v MercExchange? Moreover, maybe this is simply not a task for copyright at all. Perhaps it is the role of antitrust law to determine when interoperability must be allowed. Or perhaps patent law is the appropriate context for such debates.

Whatever the answer to this question, it is clear that Altai has not only successfully regulated this matter for twenty one years, but has shaped the way today’s copyright lawyers approach the newest issues of software protection.

Audio of this event can be found on the Altai at 21: Software Copyrights Revisited conference audio page.

This conference summary was written by Patrick Goold. Patrick Goold is the Microsoft Research Fellow at the Berkeley Center for Law & Technology at U.C. Berkeley School of Law.