But copyright protection only subsists in “original” works of authorship that are fixed in some tangible medium of expression (e.g., painted on a canvas, recorded on a hard disk, etc.). 17 U.S.C. § 102(a). Eligible “works of authorship” include literary works, musical works, dramatic works, pantomimes, choreographic works, pictorial and graphic works, sculptural works, sound recordings, and even architectural works.

Two Pesos, 505 U.S. at 764. 15 U.S.C. §§ 1114–1119. 17 U.S.C. § 102(a)(5). Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996) (emphasis added).

But despite widespread industry support for Google’s position, the Court seems poised to reject this argument.Method of OperationUnder 17 U.S.C. § 102(a), copyright protection extends to original works of authorship, and § 101 expressly lists computer programs among the works of authorship that can be protected. But, per § 102(b), copyright does not extend to “any idea, procedure, process, system, method of operation, concept, principle or discovery” embodied in the work.

Oracle responds by relying on Congressional intent and judicial precedent that have reaffirmed that software can have copyright protection even though all computer code inherently serves some purpose. Each party also invokes several policy arguments, which are highlighted below.Method of OperationUnder 17 U.S.C. §102(a), copyright protection extends to original works of authorship, including software generally. But, per §102(b), copyright does not extend to “any idea, procedure, process, system, method of operation, concept, principle or discovery” embodied in the work.

This would result in the CAFC issuing an order that includes some combination of the following: reversing Judge Alsup’s order on copyrightability (with instructions to either reconsider the issue or to reinstate the jury verdict of liability), and remanding the case for a retrial on fair use.3. Will the CAFC Reject the District Court’s Reliance on Lotus v. Borland?Finally, Judge Alsup gave heavy weight to the First Circuit’s 1995 decision in Lotus v. Borland. This important and controversial case held that a menu command hierarchy that serves as the method by which a program is operated is an uncopyrightable “method of operation” under 17 U.S.C. §102(b).* Lotus has never been applied by the Ninth Circuit (whose copyright law is controlling in this case).

In 1995 now-Justice Kagan was Associate White House Counsel, and was involved in the administration’s debate of whether to support Lotus (which had prevailed before Massachusetts U.S. District Court Judge Robert Keeton), or Borland (which won before the First Circuit). Judge Keeton had held the Lotus 1-2-3 menu hierarchy copyrightable, and the First Circuit had reversed, holding it to be an uncopyrightable method of operation under 17 U.S.C. sec. 102(b).Lotus appealed to the Supreme Court, which granted cert.

Thus, the Court went on, Bikram’s attempt to secure copyright protection for a healing art, or a system designed to yield physical benefits and a sense of well-being, was precluded by the idea/expression dichotomy. Essentially, the idea/expression dichotomy, which is codified in 17 U.S.C. § 102(b),strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts [and ideas] while still protecting an author’s expression. The Court next addressed Bikram’s contention that the Sequence was entitled to copyright protection as a “compilation.”

17 USC 102(a) provides copyright protection for original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.On the question of what is meant by “original”, the U.S. Copyright Office’s Compendium of Copyright Office Practices, Sections 308 and 308.1, citing the Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), state that “to qualify for copyright protection, a work must be original to the author,” which means that the work must be “independently created by the author” and it must possess “at least some minimal degree of creativity.” Citing the same decision, the compendium goes on to state the term “independent creation” means that the author created the work without copying from other works but “originality” does not require “novelty.”On the question of what is meant by

Should you register the copyright on the work with the U.S. Copyright Office? The answer is YES!In the United States, under 17 U.S.C. § 102(a),“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:(1) literary works;(2) musical works, including any accompanying words;(3) dramatic works, including any accompanying music;(4) pantomimes and choreographic works;(5) pictorial, graphic, and sculptural works;(6) motion pictures and other audiovisual works;(7) sound recordings; and(8) architectural works.

The district court subsequently dismissed all the remaining state law claims holding that they fell within the preemptive scope of the Copyright Act since makeup artistry fits within the “pictorial, graphic, and sculptural works” category and could be “fixed in a tangible medium of expression.” Under the doctrine of complete preemption, the Copyright Act preempts a state law claim when (1) “the claim applies to a work of authorship fixed in a tangible medium of expression and falling within the ambit of one of the categories of copyrightable works,” and (2) “the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106.”THE CASEOn appeal, Mourabit argued that the work of makeup artistry that he developed for the Photo Shoot did not meet the subject matter requirement of the Copyright Act because it did not fall within one of the categories of copyrightable works set forth in 17 U.S.C. § 102, and the makeup artistry was not fixed in a tangible medium of expression. Mourabit did not challenge the district court’s application of the so-called “general scope requirement but focused instead, on the first prong of copyright preemption: the “subject matter requirement.”