Overall, the Court seemed interested in following the precedent laid before it by the historical record. That history, storied as it may be, is also riddled with inconsistencies and authored by people that do not understand the subject. This has led to a narrative in which almost any position can be supported. However, many of the rulings are supported by justifications that either does not stand up to any scrutiny or would lead to policies that are counter-productive to everyone involved. Before moving on to the next decision in this line of cases, we will take a look at some of the more egregious examples.

The courts have repeatedly come back to the idea that the idea and the expression of the idea need to be identified before determining copyright protection. In the Computer Associates case, the Court developed an abstract-filtration-comparison test designed to break the program into structural components and then filter out the non-protectable materials. As a part of this filtration, elements that were based on practical considerations, including the program’s speed, efficiency, and usability, would not be considered protectable. The Court in Oracle rightly noted that this could have the perverse effect of rewarding inefficiencies, but pointed to the Computer Associates’ reasoning in defense. That Court claimed that “the concept of efficiency is akin to deriving the most concise logical proof or formulating the most succinct mathematical computation. Thus, the more efficient a set of modules are, the more closely they approximate the idea or process embodied in that particular aspect of the program’s structure. While, hypothetically, there might be a myriad of ways in which a programmer may effectuate certain functions within a program – i.e., express the idea embodied in a given subroutine – efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options.

There are several issues with this. First, the courts should not be in the business of rewarding or punishing efficiencies. I made a similar argument when writing about the Ultramercial v. Hulu case where the court proposed tying patentability to the complexity of the program, and I am not alone in this sentiment. This is an artificial indicator that can be gamed if so desired. There are even contests around doing so. In the present case, whether or not the claimant worked to make the expression of his or her idea efficient, whether it is in terms of memory usage, usability, or speed, should not detract from the fact that it is still that person’s expression of the underlying idea. Punishing individuals and businesses for striving for efficiency is not the goal of the copyright act.

Second, the underlying assumption that as one approaches the ideal efficiency implementation that all expressions will converge is shortsighted. One example is the fast inverse square root approximation used in Quake III Arena. As the name suggests, the algorithm is an approximation or estimate of the inverse of a square root of a floating-point number, something that was repeatedly used in gaming graphics. Yes, it was a faster method of computing a value that was close enough for the programmers’ needs, but it was less accurate. Should the implementation be protectable because it was less accurate? Or should it be denied protection because it was faster? It certainly is not more human-readable, a key objective for code to be usable, as it depends on bit shifting (something the original programmer called “evil”) and a seemingly arbitrary hex value. Based on this complexity, should it be protectable?

Another issue that the courts raise again and again is the idea that patent law and copyright law protect different concepts. Patent law gives a monopoly over the idea itself, while copyright law gives domain over the expression of the idea. This theme runs through most of the cases that the Court examined starting with Baker v. Sheldon. Because of this, the courts continually look to see if the other form of protection potentially covers the matter being considered. However, neither copyright nor patent law is so well-defined as to never expand or contract. Look at patent law for softwarethat seems to wax and wane every decade. Some decades software patents are given out generously based on a new technology not yet tested, or a recent Supreme Court decision. In others, it seems like most software is unpatentable for the same reasons.

If copyrights and patents provide protection for different aspects of an idea, then they should be examined based on the respective requirements, and not based on whether the other protection is currently trending. Any decision based on the reasoning of “as [] patents gain increasingly broad protections” should be rejected by all parties involved as nothing more than trend-following.

While the Court did not seem to rest on either of these two concepts, both pervade the courts and should be rallied against.

Next in this series, we will look at the first Appeals Court decision.