b. Assembling the pieces of the software-copyright jigsaw puzzle

Despite the amendments to the federal copyright statute, courts have struggled to apply copyright law to software in anything resembling a consistent manner. As Judge Michael Boudin stated in his concurring opinion in Lotus Development Corp. v. Borland International, Inc., "Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit." (Lotus Development Corp. v. Borland International, Inc., (1995) 49 F.3d 807, 820 [34 U.S.P.Q.2D (BNA) 1014].)

The most-recent judicial attempt at assembling the software-copyright jigsaw was by Judge Kathleen McDonald O'Malley in a decision on May 9, 2014, in the U.S. District Court of the Northern District of California. In Oracle America, Inc. v. Google, Inc.,[1] (2014) 750 F.3d 1339, the court reversed the copyrightability determination in Oracle America, Inc. v. Google Inc., (2011) 872 F.Supp.2d 974 relating to the 37 Java application programming interface (API) packages used by Google in the Android operating system. The court ordered that the jury's infringement findings be reinstated. (Oracle America, Inc. v. Google Inc., supra, 750 F.3d 1339 at 1348.)

(To avoid confusion, the 2014 decision will be referred to as "appellate court," and the 2011 decision as "district court.")

The appellate court also remanded on Google's fair-use defense, on which the jury had deadlocked. Finally the court affirmed the district court's decisions to grant Oracle's motion for judgment as a matter of law (JMOL) regarding Google's use of eight decompiled Java security files in Android, and denying Google's motion for JMOL regarding Google's use of the nine-line Java rangeCheck function. (Ibid.)

1. Two types of source code: declaring and implementing

[1] http://www.cafc.uscourts.gov/images/stories/opinions-orders/13-1021.Opinion.5-7-2014.1.PDF