Copyright in Code: Structure, Sequence, and Organization After Google v. Oracle
By Casey Scott McKay ·
Software has never fit comfortably inside copyright, and the Supreme Court's decision in Google v. Oracle resolved less than most people believe. This article explains what copyright actually protects in a program - the expression, filtered of everything dictated by function, efficiency, external constraints, and the public domain - and how the abstraction-filtration-comparison method that most circuits use gets applied in practice. It covers what the Court held about declaring code and what it deliberately did not hold, why the fair use ruling was framed narrowly around reimplementation of an interface, and how the four factors look when the work is functional. It also covers reverse engineering, clean-room development, the registration and deposit rules that determine what a plaintiff can actually prove, and the two evidentiary problems that decide most software cases before anyone reaches the merits.
IP and Technology > Information Technology | Article | Published 9 October 2023 - Updated 16 May 2025 | Casey Scott McKay - marksy.us
Summary. Software has never fit comfortably inside copyright, and the Supreme Court's decision in Google v. Oracle resolved less than most people believe. This article explains what copyright actually protects in a program — the expression, filtered of everything dictated by function, efficiency, external constraints, and the public domain — and how the abstraction-filtration-comparison method that most circuits use gets applied in practice. It covers what the Court held about declaring code and what it deliberately did not hold, why the fair use ruling was framed narrowly around reimplementation of an interface, and how the four factors look when the work is functional. It also covers reverse engineering, clean-room development, the registration and deposit rules that determine what a plaintiff can actually prove, and the two evidentiary problems that decide most software cases before anyone reaches the merits.
Keywords: google v oracle · declaring code · abstraction filtration comparison · altai test · structure sequence organization · merger doctrine software · scenes a faire code · idea expression dichotomy · section 102(b) · literal and nonliteral copying · api copyright · clean room development · software fair use · transformative use software · reverse engineering · sega accolade · interoperability · source code deposit · registration of computer programs · expert comparison methodology
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