2. Originality requirement

The appellate court distinguished literal and non-literal elements from literal and non-literal copying: the former is "verbatim copying of the original expression," while the latter is "paraphrased or loosely paraphrased." (Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1356, citing Lotus Dev. Corp. v. Borland Int’l, supra, 49 F.3d 807 at 814.) Oracle asserted Google literally copied the declaring code and paraphrased the SSO in its custom implementing code.

The originality requirement as it pertains to software was enunciated in Feist Publications, Inc. v. Rural Telelphone Service Co.: "Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity." (Feist Publications, Inc. v. Rural Telephone Service Co. (1991) 499 U.S. 340, 345.)

Originality relates to the copyrightability of an expression of an idea, while the concepts of merger and scenes a faire (infra) are affirmative defenses to infringement claims. (Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1358, citing Ets-Hokin v. Skyy Spirits, Inc. (2000) 225 F.3d 1068, 1073 and Satava v. Lowry (2003) 323 F.3d 805, 810 n.3.)

Google concedes that Oracle's APIs meet 17 USCS § 102(a)'s originality requirement, but the company claims § 102(b) precludes copyrighting a work that has a functional component. (Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1356.) However, the appellate court cited Mitel, Inc. v. Iqtel, Inc., which states that copyright protections extend to expressions "embodied in a method of operation." (Mitel, Inc. v. Iqtel, Inc. (1997) 124 F.3d 1366, 1372.)

3. Merger doctrine