6. Scenes a faire doctrine

Another exception to the rule that creative expressions may be copyrighted is the scenes a faire doctrine, which is defined in Mitel: "[E]xpressive elements of a work of authorship are not entitled to protection against infringement if they are standard, stock, or common to a topic, or if they necessarily follow from a common theme or setting." (Mitel, Inc. v. Iqtel, Inc., supra, 124 F.3d at 1374.)

In Softel, Inc. v. Dragon Medical & Scientific Communications, the scenes a faire doctrine was applied to software: "[T]he scene a faire doctrine denies protection to program elements that are dictated by external factors such as 'the mechanical specifications of the computer on which a particular program is intended to run' or 'widely accepted programming practices within the computer industry.'" (Softel, Inc. v. Dragon Med. & Scientific Communications, supra, 118 F.3d 955, 964, citing Altai, supra, 982 F.2d at 709-10.)

As with the merger doctrine, the appellate court ruled that Google's application of the scenes a faire doctrine to its use of Oracle's APIs was inappropriate because the doctrine serves only as a complete defense to infringement and does not apply to the expression's copyrightability. Also, Google failed to make this argument at trial and did not object to the district court's determination that the company failed to present facts supporting the application of the scenes a faire doctrine in this case. Similar to the district court's misapplication of the merger doctrine at the time of the infringement rather than at the time the program was written, the appellate court found that Google misunderstood that the scenes a faire doctrine applies only at the time Sun/Oracle created the Java APIs, not at the time Google encountered them when it decided to copy them in Android. 

7. Structure, sequence, and organization of the Java APIs