Java: An Innovation in Software Development and a Dilemma in Copyright Law

Journal of Intellectual Property Law Volume 7 | Issue 1 Article 5 March 1999 Java: An Innovation in Software Development and a Dilemma in Copyright Law Michael P. Doerr Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the First Amendment Commons, and the Intellectual Property Law Commons Recommended Citation Michael P. Doerr, Java: An Innovation in Software Development and a Dilemma in Copyright Law, 7 J. Intell. Prop. L. 127 (1999). Available at: https://digitalcommons.law.uga.edu/jipl/vol7/iss1/5 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Doerr: Java: An Innovation in Software Development and a Dilemma in Copy JAVA: AN INNOVATION IN SOFTWARE DEVELOPMENT AND A DILEMMA IN COPYRIGHT LAW I. INTRODUCTION The introduction of Java software development technology by Sun Microsystems, Inc. (Sun) raises new issues in an already unsettled and confusing area of law: the copyrightability of computer programming languages. In 1980, Congress adopted the recommendations of the National Commission on New Technological Uses of Copyrighted Works (CONTU) and passed legislation defining computer programs as copyrightable subject matter.' However, no mention was made about the copyrightability of the computer programming languages used to write computer software. No court has explicitly ruled on the issue of whether copyright protection subsists in a computer programming language.2 Academics have argued both for and against extending copyright protection to computer programming languages.3 The development of Java makes this unsettled issue more interesting, important, and complex. Java was developed by Sun, who describes the technology as "a standardized application programming environment that affords software developers the opportunity to create and distribute a single version of Copyright protection subsists in "literary works." 17 U.S.C. § 102(a)(1) (1994). Computer programs are classified as literary works for copyright purposes. H.R. REP. NO. 94-1476, at 54 (1976). 2 But see Lotus Dev. Corp. v. Paperback Software Int'l, Inc., 740 F. Supp. 37, 72, 15 U.S.P.Q.2d (BNA) 1577, 1602 (D. Mass. 1990) (criticizing, in dicta, the argument that computer programming languages are uncopyrightable subject matter). ' For arguments supporting copyrightability of computer programming languages, see generally Ronald Johnson & Allen Grogan, CopyrightProtectionfor Command Driven Interfaces, 8:6 COMPUTER L. 1 (1991). For arguments against the copyrightability of computer programming languages, see generally Marci A. Hamilton & Ted Sabety, ComputerScience Concepts in Copyright Cases: The Pathto a Coherent Law, 10 HARV. J.L. & TECH. 239 (1997); Elizabeth G. Lowry, Copyright Protection for Computer Languages: CreativeIncentive or Technological Threat?,39 EMORY L.J. 1293 (1990); Steve Posner, Can a Computer Language Be Copyrighted? The State of Confusion in Computer Copyright Law, 11 COMPUTER/L.J. 97 (1991); Richard H. Stern, Copyright in Computer Programming Languages, 17 RUTGERS COMPUTER & TECH. L.J. 321 (1991). Published by Digital Commons @ Georgia Law, 1999 1 Journal of Intellectual Property Law, Vol. 7, Iss. 1 [1999], Art. 5 J. INTELL. PROP.L. [Vol. 7:127 programming code that is capable of operating on many different, otherwise incompatible systems platforms and browsers. "' This Note will examine how Java works, how it has changed the computer science industry, and how it affects the debate over the copyrightability of programming languages. We will first consider how traditional programming languages operate and how Java has changed the traditional framework. To facilitate a clear understanding of the copyright issues involved, we will consider a hypothetical involving a copier who has used the exact Java programming language specification without copying Sun's literal code. We will use this hypothetical to explore Sun's claim against the copier for infringement of the copyright in the actual language, if any such infringement has occurred. In doing so, we will examine the arguments for and against allowing copyright protection to subsist in a programming language by itself. We will then consider Sun's claim against the hypothetical copier for infringement of the copyright in the computer software programs that utilize the Java languages. Finally, we will examine the law surrounding the extension of copyright protection to non-literal elements of a computer program and whether copyright protection could be extended to give Sun copyright-like protection in the Java language. II. BACKGROUND AND TECHNICAL OVERVIEW OF JAVA A. THE COMPUTER SCIENCE WORLD BEFORE JAVA The allure of Java is its ability to be platform independent. To understand what platform independent means, we will discuss what made other programming languages platform dependent. First, what is a platform? The simple answer is that a platform is just a type of computer environment. For example, the most well-known platforms are currently the PC, or Windows platform, and the Macintosh platform. Unix and Linux are also platforms used today. What makes these platforms different are the different instruction sets they use. Computers operate on instructions in the form of binary strings, or strings of ones and Sun Microsystems, Inc.,Memorandum ofPoints&Authority (visited Oct. 11, 1998) <http://www. java.sun.com/lawsuit/counterclaimdoc2.html >. https://digitalcommons.law.uga.edu/jipl/vol7/iss1/5 2 Doerr: Java: An Innovation in Software Development and a Dilemma in Copy 1999] JAVA COPYRIGHTABILITY zeroes called the machine language.' This is the most basic language in which the computer communicates.6 Each instruction for the computer corresponds to a specific string of ones and zeroes. In each environment there are a vast number of different instructions, or binary strings, that the computer will recognize. This vast number of recognizable instructions constitutes that platform's instruction set. What makes platforms different from one another is the form of' their instruction sets. Each platform's instruction set is comprised of a different number and type of instructions. Computer programmers formerly wrote computer programs directly in machine language,' but now they communicate with computers using computer programming languages. Examples of pre-Java, or traditional, computer programming languages are C, C + +, Pascal, and FORTRAN. Programmers write a program in a given programming language and save it into a basic text file (just like a text file used to save a letter written to a friend). This text file is called the sourcefile A program called a compiler then converts the text file into an object file,9 or a fil (...truncated)