Open Source: Copyrightability, Fair Use and Due Diligence

Navigating IP Protection for Application Programming Interfaces

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Wednesday, May 27, 2015

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Course Materials

This CLE course will provide guidance to counsel for companies, developers and licensees on the implications of the Federal Circuit’s Oracle v. Google decision for open source software. The panel will discuss best practices for IP protection for software development and licensing going forward.


Software is built in parts, and the parts must communicate with each other. Software packages themselves also frequently need to communicate with other software packages. Is the information needed to communicate — APIs or other forms of interfaces — protected as intellectual property rights? If one of the parts is open source software, will the use of its interface information create problems? This program sheds light on these difficult questions.

In Oracle America Inc. v. Google Inc., the Federal Circuit Court of Appeals held that certain interface information is entitled to protection under the Copyright Act. The Federal Circuit remanded the decision for further proceedings concerning Google’s fair use defense. Cert has been applied for to the U.S. Supreme Court, but it hasn’t yet been granted or denied.

Using open source software offers a number of benefits but also presents serious risks, including the potential requirement to allow others to receive and use your proprietary source code. Also, many companies want their software products to interface with the products of others. There are possible IP risks associated with such use.

When developing software or when acquiring companies, counsel, developers or licensees should carefully do their due diligence to ensure appropriate use of interface information.

Listen as our authoritative panel reviews necessary concepts for understanding interface and related open source issues. The panel will analyze the Oracle v. Google case and the implications of the district court and Federal Circuit decisions. The panel will also discuss what that means for software development and licensing and will outline best practices for companies and developers when developing APIs and open source licensing.



  1. Necessary concepts — background law and facts
    1. Derivative works
    2. Idea expression dichotomy
    3. Current state of the law, including the copyright protection for taxonomies
    4. Architecture of Java
    5. Facts of Oracle v. Google
  2. Analyzing Oracle v. Google and its implications
    1. District court decision
    2. Federal Circuit decision
    3. EU treatment
    4. Relationship to open source and interfaces generally
  3. Best practices for working with APIs and open source licensing


The panel will review these and other key issues:

  • What are the implications of the Federal Circuit’s Oracle v. Google decision for copyrighting open source software?
  • What strategies should companies and developers employ when developing and licensing APIs?
  • What are best practices for licensees to ensure compliance with open source license agreements?


Paul H. Arne
Paul H. Arne

Morris Manning & Martin

Mr. Arne represents technology companies and large end users, with a particular emphasis on complex, outsourcing...  |  Read More

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