Answering Question One in Google v. Oracle: The Creativity of Computer Programmers

Abstract

There is a misconception that computer programs are extremely limited by set expressions required by the computer system or the problem being coded and thus have little room for creativity. Under this fallacy, some argue that copyright protection for software is practically nonexistent as the Feist minimal creativity standard cannot be met. Others, including Google in the recent Google v. Oracle case before the Supreme Court, argue that even if the minimum creativity standard can be met, most aspects of software constitute ideas rather than expressions so, again, copyright protection fails under the merger doctrine.

Until recently, these factual assertions about the nature of computer programs and their creation have not been empirically tested. The authors have now done so. In a recently published, peer-reviewed study by the authors, the creativity leading to the writing of a computer program was established; indeed, the creativity used by a computer programmer is similar to that found in other disciplines that are acknowledged to be creative. The study took examples of computer programs written by multiple programmers to perform identical functions and applied recognized psychology-based tests to measure creativity. Although the study’s programs were not particularly complex, the programmers found many significantly different and creative ways to code them. The study established that software—at least that more complicated than the program needed to print “Hello, world!”—vary greatly based on the creative expressions chosen by the program’s author. This creative expression deserves full copyright protection.

Keywords: computer programming, software, copyright, creativity, Feist