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Oracle v. Google - Google Requests Continuance; Not Likely
Thursday, March 15 2012 @ 09:10 AM EDT

Google lead counsel, Robert Van Nest, has requested the court's leave to file a motion for a continuance of the trial to avoid conflicts in his trial schedule. (792 [PDF; Text]) The court has agreed Google can file the motion but told Van Nest not to hold his breath. (794 [PDF; Text])

Van Nest has two conflicting trials. The first is scheduled to end no later than April 20 (four days after the commence of this trial) and the second is to commence on June 29, which is about 10 days after this trial should end. Van Nest has asked, in the alternative, either a delay in the start of this trial to April 30 (which would push the end date of this trial beyond the start of his June 29 trial) or a delay until the September-December time frame Judge Alsup asked the parties to reserve.

The Court has responded that Van Nest can go forward with his motion, but the Court has also made clear the motion is not likely to go anywhere. Apparently Judge Alsup contacted the Texas court, and they have advanced the date of that trial to avoid a conflict. Once that conflict has been avoided, there is not likely to be a conflict on the back end, although Judge Alsup indicates his colleague, Judge Koh, would likely accommodate any spillover by delaying the start of the June 29 trial.

You certainly have to wonder whether this motion was not prompted, at least in part, by a desire by Google to get the reexamination of the '104 patent to a final action, but that's just speculation. What is clear is that Mr. Van Nest is going to disappoint his family by having to cancel their scheduled May vacation overseas.

In other matters John Cooper, counsel to the Court's damages expert, Dr. James Kearl, has written the Court seeking to correct a misunderstanding with respect to the completion of Dr. Kearl's damages report. (790 [PDF; Text]) That report has certainly become far more important now that most of the Cockburn report is out the window. The Court gave conflicting instructions between the March 7 hearing and its order on the Cockburn report. At the hearing Dr. Kearl was told not to complete his report until the Cockburn order was rendered. So Kearl held off. Then, in an order following the decision on Cockburn order, the Court directed Kearl to release his report. Cannot do, replied Cooper. As a result, the Kearl report is now scheduled for release on March 21, Dr. Kearl having to rework or eliminate numerous sections as a result of the Cockburn order, with the follow-up actions being extended. The Court has accepted this revised schedule.

On behalf of Kearl, Cooper also seeks clarification of the nature of the $561 million figure the Court adopted from the Cockburn report for the copyrights and patents. Kearl wants to know whether that is a floor, i.e., damages cannot be below that amount (or at least the portion of that amount representing the copyrights and patents in suit), whether it is a ceiling (barring anything higher), or whether it is the exact amount (allowing no variance).

The Court responded (791 [PDF; Text]) that the $561 million figure is only limiting on Oracle and that Dr. Kearl is free to rely on the Google experts or on any other number upon which he arrives. What is clear is that Dr. Kearl has free rein to adopt any approach he believes appropriate, and he is not limited to the approaches advanced by the parties.

In the final request of the day (793 [PDF; Text]), the Court has requested the parties to brief the following:

... the mechanism by which the Java programming language is free and open for anyone to use but the APIs are not. If the Android platform does not infringe Oracle’s copyrights by using the Java programming language, how has Google infringed Oracle’s copyrights by using Java APIs? Did Sun statements that made the Java programming language available for all to use expressly reserve as to the Java APIs?
Now I admitted I am not all that tech savvy (and thanks to all of our readers who, by overwhelming majority, established the truth of that statement), but I find this inquiry to be more than a bit disturbing. We are more than a year and a half into this litigation, and it is quite clear the Court does not grasp the relationship between the Java programming language and the APIs. Of course, the good news is that he is seeking that understanding now, before the trial begins. We're not certain, but we are pretty sure the "open sourcing" of the programming language had no impact on the APIs. On the other hand, if the programming language was "opened" but the APIs were not, what utility did "opening" the Java programming language really have? Feel free to chime in on that point.



03/13/2012 - Set/Reset Hearings: Jury Selection and Jury Trial set for 4/16/2012 07:30 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. (dt, COURT STAFF) (Filed on 3/13/2012) . (Entered: 03/13/2012)

03/13/2012 - 789 - ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SEAL by Hon. William Alsup granting in part and denying in part 717 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 727 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 733 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 736 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 750 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 761 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - Order by Hon. William Alsup granting in part and denying in part 772 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 - 790 - Letter from John L. Cooper to Hon. William Alsup re Dr. Kearl, Rule 706 Expert. (Cooper, John) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/14/2012 - 791 - NOTICE RE DR. JAMES KEARL re 790 Letter filed by John Lee Cooper. Signed by Judge Alsup on March 14, 2012. (whalc1, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

03/14/2012 - 792 - Letter from Robert A. Van Nest re Trial Date . (Van Nest, Robert) (Filed on 3/14/2012) (Entered: 03/14/2012)

03/14/2012 - 793 - REQUEST FOR BRIEFING. Signed by Judge Alsup on March 14, 2012. (whalc1, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

3/14/2012 - 794 - ORDER RE REQUEST TO CONTINUE TRIAL [re 792 Letter filed by Google Inc.]. Signed by Judge William Alsup on 3/14/2012. (whasec, COURT STAFF) (Filed on 3/14/2012) (Entered: 03/14/2012)

3/14/2012 - 795 – Transcript of Proceedings held on March 7, 2012, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415-794-6659/ Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 4/4/2012. Redacted Transcript Deadline set for 4/16/2012. Release of Transcript Restriction set for 6/12/2012. (Sullivan, Katherine) (Filed on 3/14/2012) (Entered: 03/14/2012)




[Farella Braun + Martel LLP letterhead]

March 13, 2012

United States District Court
Northern District of California
450 Golden Gate Avenue
San Francisco, California 94102

Re: Oracle America, Inc. v. Google Inc., No. 3:10-CV-03561-WHA (N.D. Cal.)

Dear Judge Alsup:

I write on behalf of Dr. James Kearl. The purpose of this letter is to respond to the Court's Request and Notice, issued at noon today, ordering Dr. Kearl to release his expert damages report to the parties by noon tomorrow. (Dkt. 787) The Court indicates that this request is based on its assumption that the report is finished "as represented at the March 7 hearing."

We fear that there has been a misunderstanding. At the March 7 hearing, Dr. Kearl represented, through his undersigned counsel, that he would be ready for trial in mid-April, ready for a deposition at the end of March and his report would critique the positions of the parties' experts. He did not intend to represent—and does not believe that he did represent—that his report was then completed. It was not. In addition, on March 7, shortly after the hearing, the Court issued a Notice to Dr. Kearl advising that he "should wait to finish his report and not release it until further order from this Court." (Dkt. 776. Emphasis added.) Dr. Kearl interpreted this statement to be a recognition that his report was not done and he should wait to

The Honorable William Alsup
March 13, 2012
Page 2

finish his report until directed by the Court. Accordingly, Dr. Kearl did not work to complete his report between March 7 and today.

In a separate Order also issued today, the Court granted in part Google's Daubert Motion to exclude Dr. Cockburn's Third Report. (Dkt. 785.) Dr. Kearl is still digesting this Order, but notes that the Court excludes significant portions of Professor Cockburn's analyses and opinions, including the "Econometric" analysis, most of the "Conjoint" analysis, the entirety of the "Independent Significance" approach, and portions of the "Group and Value" approach. The Order also appears to set the total value of the copyrights-in-suit and 569 patents in Sun's Java mobile patent portfolio at $561 million, and to limit the patents-in-suit to the '520 and '104 patents.

The Court's January 9 Directive ordered that Dr. Kearl's report "be limited strictly to the matters left standing by motion practice." (Dkt. 686.) Today's Order on Dr. Cockburn's Third Report thus substantially impacts Dr. Kearl's analyses and opinions as they are currently constituted, and requires him to significantly revise his approach, opinions, and report. Dr. Kearl was prepared to critique the econometric and conjoint analyses, and intended to opine on both in his report. Dr. Kearl also intended to rely on corrected econometric and conjoint analyses in his own apportionment work. Today's order precludes him from using his own corrected econometric and conjoint analyses, which use data from Professor Cockburn's econometric analysis and Prof Shugan's conjoint analysis. Dr. Kearl will therefore need to turn to Dr. Cockburn's group-and-value approach for his own apportionment work. Dr. Kearl intends to do this as quickly as possible, but even working non-stop, will require an additional week to

The Honorable William Alsup
March 13, 2012
Page 3

complete his work. Dr. Kearl regrets that he cannot complete his report by noon tomorrow, and respectfully requests that the Court allow him until 5:00 p.m. on Wednesday, March 21, to release his completed report.

I have consulted with Steven Holtzman of Boies, Schiller & Flexner LLP, counsel for Oracle, and Daniel Purcell of Keker & Van Nest LLP, counsel for Google, regarding this request. I am authorized to inform the court that the parties agree to the following schedule: Dr. Kearl report: March 21 (7 day extension); Dr. Kearl deposition: by March 28 (5 day extension); any challenges: April 2 (3 day extension); Oppositions: April 6 (1 day extension); Hearing (if needed): April 9 (as ordered).

In addition, to the degree permissible, Dr. Kearl would appreciate clarification from the Court on an issue raised by the Order (Dkt. 785.) on Dr. Cockburn's Third Report, which would streamline Dr. Kearl's preparation of his report: On page 11, the Court states, "Accordingly, $561 million shall be the total value of the copyrights in suit and 569 patents in Sun's Java mobile patent portfolio." Drs. Leonard and Cox argue that the value of the copyrights-in-suit and 569 patents in Sun's Java mobile patent portfolio (the "portfolio") is lower than this amount. Dr. Kearl respectfully requests clarification as to whether the Court means that Professor Cockburn cannot argue that the portfolio is worth more than $561 million, or that no expert can argue that the portfolio is worth anything other than $561 million?

Sincerely yours,

/s/John L. Cooper

John L. Cooper




No. C 10-03561 WHA



The Court has received Attorney John Cooper’s March 13 letter and responds as follows. The alternative scheduled agreed upon by the parties is adopted. Dr. James Kearl’s report will be due on March 21, his deposition will be finished by March 28, challenges to the report must be filed by April 2, any oppositions must be filed by April 6, and a hearing, if needed, will be on April 9.

In response to additional concerns in the letter, the Court confirms that Dr. Kearl should calculate patent damages only for the ’104 and ’520 patents. Also, the order for Dr. Ian Cockburn to adjust his valuation of the copyrights in suit and Sun’s Java mobile patent portfolio to $561 million does not preclude other experts from using a different valuation or a completely different approach altogether.

Dated: March 14, 2012.

/s/William Alsup


[Keker & Van Nest LLP letterhead]

March 14, 2012

Honorable William Alsup
U.S. District Court, Northern District of California
Courtroom 8 -- 19th Fl.
350 Golden Gate Avenue
San Francisco, CA 94102

Re: Oracle America, Inc. v. Google Inc. Case No. 3:10-cv-03561 WHA

Dear Judge Alsup: Google respectfully requests leave to file a motion to continue for a short period the trial in this matter. Good cause exists for the requested continuance because Google's lead trial counsel has pending trial commitments in other matters that conflict with the April 16 trial date.

I am lead trial counsel for Google in this case. Good cause exists for a continuance of the April 16 trial because I (and several other members of Google's trial team) will not be available for at least a portion of the scheduled eight-week trial. See generally Fed. R. Civ. P. 16(b)(4). As Google stated in the Joint Pretrial Conference Statement filed in December and again in my letter of February 24, 2012, I am presently scheduled to commence trial in Commonwealth Scientific and Industrial Research Organization v. Lenovo (United States) Inc., E.D. Tex. No. 6:09-cv-399 LED (Hon. Leonard Davis) on April 9. Defendants are requesting a ten-day trial through April 20. The pretrial conference in that case is set for March 22, 2012

Honorable William Alsup
March 14, 2012
Page 2

Our trial team in the Commonwealth Scientific case includes several other professionals from my firm who are on the Google trial team for this case: namely, attorneys Christa Anderson and Matthias Kamber, and paralegals Gary Padilla and Raina Magat. I am also set for trial in Genentech Inc. v. Trustees of the University of Pennsylvania, N.D. Cal. No. 5:10-cv-02037 LHK (PSG) (Hon. Lucy Koh) on June 11, 2012. Judge Koh recently advised the parties that she expects the trial to last through the end of June, and she has scheduled a bench trial concerning certain issues on June 29, 2012. he pretrial conference in that case is scheduled for May 30.

Accordingly, Google's motion would seek to continue the trial in this case until after my June 29, 2012 bench trial in Genentech Inc. v. Trustees of the University of Pennsylvania. This continuance would allow me to fulfill my professional obligations in other cases, while still serving as lead trial counsel to Google for the entirety of this matter. In the alternative, Google's motion would request that the Court continue the trial date in this case two weeks to April 30, 2012. This brief, two-week continuance would allow me to return from the Commonwealth Scientific trial in Texas in time to try as many phases of this case as I can before beginning my trial before Judge Koh.

The requested continuance would not prejudice Oracle. The difference between an April trial and a trial a few months later is insignificant in light of Oracle's delay in pursuing this case. Android was first announced in November 2007 and has been on the market since October 2008. Oracle waited until August 2010 to file its complaint, and it has never sought a preliminary injunction to remedy any alleged "irreparable harm" allegedly cause by Android. To he contrary, Oracle has sought billions of dollars in damages as compensation for that alleged harm. Were Oracle to prevail at trial, a damages award would be sufficient to compensate

Honorable William Alsup
March 14, 2012
Page 3

Oracle for any such harm. Oracle therefore has no basis to complain that a short continuance to allow Google's lead counsel to be available will somehow prejudice Oracle.

I have done everything possible to avoid these conflicts. In the parties' December 7, 2011 Joint Pretrial Conference Statement, I advised the Court of my prior trial commitments "in the first few months of 2012 that could conflict with the trial date in this case." (Dkt. 644 at 3-4). At the December 21, 2011 Final Pretrial Conference, the Court advised the parties that it would attempt to work around prior trial commitments. December 21, 2011 Hg. Tr. [Dkt. 662] at 133:16-21 ("MR. VAN NEST: I have a number of conflicts Your Honor, in April. THE COURT: All right, that was who I'm thinking of. You know, if you got conflicts, I'm going to try to help you out, you are the lead lawyer. But if that goes away, maybe we could try it in the spring."). The Court further advised the parties that, while an April or May trial was a possibility, they should reserve September-December of 2012 for trial of this matter. Id. at 164:12-19. In light of these comments, I did not attempt to withdraw as lead counsel in either of the other cases.

For the foregoing reasons, Google respectfully requests leave to file a motion to continue the trial date until after June 29, 2012, or, alternatively to April 30, 2012. In the event the Court grants Google's request, I will promptly advise the Court of any changes to my trial schedule in the other matters described herein.



/s/ Robert A. Van Nest





No. C 10-03561 WHA



In the reply briefs on copyright due March 23, please explain the mechanism by which the Java programming language is free and open for anyone to use but the APIs are not. If the Android platform does not infringe Oracle’s copyrights by using the Java programming language, how has Google infringed Oracle’s copyrights by using Java APIs? Did Sun statements that made the Java programming language available for all to use expressly reserve as to the Java APIs?

Dated: March 14, 2012.

/s/ William Alsup




No. C 10-03561 WHA



A motion for continuance may be made but the prospects for relief are not great. The Texas case has been advanced as of today to take some pressure off of counsel. The Court believes that Judge Koh will accommodate counsel once our trial is underway. If not, there are a large number of counsel in this case for both sides to be able to try this case effectively. If the lead counsel is absent for a few days from our trial because of other commitments, it will be a manageable problem in such a long trial as our own. The Court’s own calendar permits this case to be tried, if at all, this year, starting APRIL 16. This is, in part, due to congestion arising from the after-effects of the MS-13 trials (four of them over the last two years), causing a backlog. The Court has reserved mid-April to mid-June for this case and counsel have been asked for several months to do likewise. Any motion must be promptly made and promptly answered.


Dated: March 14, 2012.

/s/ William Alsup


Oracle v. Google - Google Requests Continuance; Not Likely | 251 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: NigelWhitley on Thursday, March 15 2012 @ 09:17 AM EDT
Please submit any corrections to the main article under this thread. It would be
helpful to specify simple corrections in the title

e.g. Korect-->Correct

Nigel Whitley

[ Reply to This | # ]

Thank you.
Authored by: Anonymous on Thursday, March 15 2012 @ 09:17 AM EDT

[ Reply to This | # ]

Authored by: NigelWhitley on Thursday, March 15 2012 @ 09:19 AM EDT
Comments not directly related to the main article can be placed under here.
Nigel Whitley

[ Reply to This | # ]

Authored by: NigelWhitley on Thursday, March 15 2012 @ 09:22 AM EDT
Kindly place comments on and suggestions for the Newpicks section under this
thread. Please include a reference to the original item so it can be located
after the snippet has scrolled off the page. Use of HTML Formatted comments to
create a link would be helpful.
Nigel Whitley

[ Reply to This | # ]

Comes transcripts
Authored by: NigelWhitley on Thursday, March 15 2012 @ 09:25 AM EDT
The project to transcribe as much as possible of the exhibits from Comes v
Microsoft continues. Please submit the converted exhibit under here.
Nigel Whitley

[ Reply to This | # ]

Open language, closed API -- NOT.
Authored by: Anonymous on Thursday, March 15 2012 @ 09:26 AM EDT
I'll be really brief with this. Absent a serious perversion of lots of
precedent, the Java APIs (as with any published APIs) cannot be
copyright-protected such that using or reimplementing them violates copyright.
Just. Cannot. Happen. Fuggedaboudit. They are functional, not creative, works,
and you can no more bar their use by copyright than you can bar the use of
"for(int i = 0; i < MAX_ITEMS; i++) { stuff }" by copyrighting the
placement of an integer declaration in the loop control statement.

What this judge has just done, very possibly without realizing it, is bowled a
thermonuclear hand grenade straight at the copyright portion of Oracle's case,
and opened the way for Google to jump up and down shouting "Summary
judgment motion! Question of law not fact! No triable dispute! Tons of settled
case law as precedent!" about the copyright claims. This is THE central
question that decides whether the copyright claims have any life at all, and
it's very likely to sink them.

[ Reply to This | # ]

Java is open but APIs are not
Authored by: janolder on Thursday, March 15 2012 @ 09:32 AM EDT
> Feel free to chime in on that point.

Happily. I think Judge Alsup has put his finger on one of the many ways in which
declaring the APIs that a specification document describes copyrightable would
lead to absurd results.

What Oracle is basically saying is that any implementation that implements the
specification is a derivative work. You might as well argue that any cell phone
that implements the GSM standard is a derivative work of the GSM standard
document. Or that a Seagate drive is a derivative of the SATA spec. Or you might
argue that any dish cooked according to the recipe from a book is a copyright
infringement of the author's work.

It similarly makes no sense for Sun to say Java is open, reimplementations of
Java according to spec are specifically desired by Sun and for Oracle to then
turn around and claim copyright infringement of the spec docs.

I don't see that fly. If it does even hover, I would expect any sane appellate
court to shoot it down. Should it becomes case law it will be impossible for
anyone in the industry to implement anything according to a specification
without risking a copyright suit.

[ Reply to This | # ]

...but I find this inquiry to be more than a bit disturbing
Authored by: Anonymous on Thursday, March 15 2012 @ 09:45 AM EDT
On face value I can only see this as disturbing to Oracle.

The judge appears to be asking up front and before the trial how Oracle can
possibly assert such a hypothesis. A hypothesis with which most "practised
in the art" people disagree.

Equally he's opening the door for Google to show him how, as a matter of law,
Oracle's position can't stand.

It would seem liekly that if Oracle can't show a legal basis in response to this
but Google can show cas law supporting their argument then summary judgement may
be on the cards.

[ Reply to This | # ]

Motion for continuance...
Authored by: Gringo_ on Thursday, March 15 2012 @ 10:10 AM EDT

It would be highly unfair to go to trial on the current proposed date, given the scheduling conflicts Google's lawyer describes. Justice would not be served. The trial must be postponed. There is nothing so pressing in this civil case that justice should be perverted this way. On the contrary, the case should be delayed to allow UPSTO's final conclusions on the patents at issue. Justice is not served by going to trial before this process is completed.

[ Reply to This | # ]

Java is open but APIs are not
Authored by: mipmip on Thursday, March 15 2012 @ 10:32 AM EDT
I find the question the judge asked promising. It highlights a fault or at least
a difficult position in Oracles arguments. And it sounds like the judge wants to
put the finger into the wound.

It would be a disaster for the software industry if APIs became protectable but
as far as I know (from reading groklaw mostly) this is a slightly open question
in US law. I could be completely wrong here.

On the technical side there are almost always APIs aka libraries that are
intrinsically part of the language. Part of the reason is that the language
itself is an API. And whether to implement a function (like 'print' for example)
as part of the language or put it into a library is often a matter of
convenience and not because this function is somehow different from an internal
or external function.

So the question the court asks is really central to this case. Where did Sun
draw the line (if at all) between APIs that can't be left out of the language
and APIs they considered proprietary? And how did they communicate that (I at
least missed that part)? That is what Oracle has to answer before they even can
begin to tackle the question if an API is copyrightable matter at all.

[ Reply to This | # ]

Java API
Authored by: NigelWhitley on Thursday, March 15 2012 @ 10:36 AM EDT
I have been of the opinion that Judge Alsup wants this to be off his schedule
and now, when both sides have stubbornly insisted on their day in court, IMHO
the Judge is showing that he is not going to give either side an easy time. So
Google's lawyer is going to have to work around the court's schedule and Oracle
are going to have to reconcile the (apparently) contradictory position regarding
the open language and the restricted API.

IANAL so the law may take a very different line on what makes sense to a
developer but IMHO it is ludicrous to state that the language is free and open
if the APIs are not. An extreme analogy in a natural language would be that the
language is free to use except for the existing verbs.

I would guess that Oracle's position is that the Java syntax can be used by
anyone. There are no restrictions on the creation of objects or user-defined
functions. Users can implement algorithms of any complexity, choose to split
their code into multiple files or leave them as monolithic blocks, sprinkle
comments liberally or make their nomenclature fiendishly impenetrable. But they
can't make procedure calls which look like the "official" Java API,
perhaps even where said procedure calls resemble those in other languages.

An advantage of being able to use the Java language for Android development is
that there is no need to learn a new set of procedure calls. Oracle's suggestion
would be like being able to use your smartphone anywhere, but the contacts
disappeared when you changed time zones. It's not that you can't recreate the
contacts, it's just that you wouldn't have chosen the phone if you knew it would
be so inconvenient. Of course, if you only ever use your phone in one time zone
it's no problem, but everyone can see how the restriction would limit the
popularity of the device.

Now assume that, before you bought the phone, the provider said you could take
it anywhere and it would work just the same. They even said they were glad that
you would be taking it on your round the world trip. And when you told them what
had happened they said they designed it that way because the phone was provided
by them for use in their time zone. Might one feel there had been mixed signals?
Just a bit?

When Sun announced opening Java, James Gosling said "For the open-source
JDK components, we chose the GNU General Public License (GPL) version 2 for
almost all of the virtual machine, and GPL v2 with the Classpath exception for
the class libraries and those parts of the virtual machine that expose public
APIs. For Java ME, we went solely with GPL v2." I don't see any mention
that there was an exception which prevented using those public APIs. The
Classpath exception is, if anything, intended to encourage the use of the APIs
by allowing applications to link to those libraries without needing to adopt the
GPL themselves.

If I was Google (and a lawyer, but I'm neither) I'd be asking why they used the
Classpath exception if they didn't expect people to be using the Java libraries
and their APIs.
Nigel Whitley

[ Reply to This | # ]

Oracle v. Google - Google Requests Continuance; Not Likely
Authored by: Anonymous on Thursday, March 15 2012 @ 10:38 AM EDT
There are lots of different things called "Java", and everyone likes
to get them confused:

The Java Language: Syntax and Structure, what a for loop looks like, basic
variable types (int, boolean, etc...)
The Java Standard Libraries: java.util.*, javax.swing.*, etc... (probably just
all of the java and javax namespaces)
The Java Virtual Machine (JVM): java.exe
The Java Virtual Machine Bytecode: what you feed to java.exe, normally .class
The Java -> JVM Bytecode compiler: takes Java Language files and produces JVM

The Java Language is *really* similar to C++.
The JVM Bytecode can be compiled from languages other than Java, and Java code
can be compiled to machine executables, or other Virtual Machine bytecode if you
The Copyright arguments are leaving the JVM and compiler alone.

Which leaves the API spec and implimentation.

The spec was published freely on the old Sun website, and has been reproduced in
part in goodness knows how many books, lectures, tutorials and other material.

No-one would argue with Oracle asserting it's copyrights over the API
*implementation*. That's essentially a program library just like any other.
The problem is that they're wanting to assert copyright over the API
*specification*. If they did that across the board, then basically every
learning or reference tool for working with Java is under their guns: Books,
Tutorial slides, crib sheets, everything is illegal if it talks about the Java
Standard Librarys.

Hey, here's a thought, Oracle could sue Barnes&Noble for publishing books
that infringe the Java API copyrights! That works under their legal theory, and
makes just as much sense.

[ Reply to This | # ]

APIs and facts and copyright
Authored by: nsomos on Thursday, March 15 2012 @ 10:44 AM EDT
While there may have been some courts outside the USA that
have held that collections of facts can be copyrighted,
as far as I know, this is not, and has never been the
case in the USA.

One could analyze the APIs as published, and extract those
facts that would be necessary to re-implement them.
From these facts one could develop their own implementation
of those same APIs. To the extent that these APIs appear
virtually indistinguishable from some other implementation
is just an indication of how little room is left for creativity
in the API once you have accurately and adequately specified
those facts necessary to implement these APIs.

Until and unless in the USA collections of facts are
copyrightable, I see no way that a re-implementation of APIs
(other than by directly using someone elses code to do so)
would be a copyright violation in the USA.

To a great extent, the API is one of those unprotectable elements
that should be filtered out of code copyright violation analysis.

From Gates Rubber Co. v. Bando Chemical ...
The Copyright Act provides that “idea[s], procedure[s], process[es], system[s],
method [s] of operation, concept[s], principles, or discover [ies]” are not
protectable. 17 U.S.C. Section 102(b) (Supp. 1993). Accordingly, the court must
filter out these unprotectable elements. In order to effectuate the purposes
behind the copyright laws, it is also appropriate to apply the doctrines of
merger and scenes a faire to filter out unprotectable elements.

Seems pretty clear to me, that APIs are fairly well excluded
from copyright protection.

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w00t the judge gets it
Authored by: mexaly on Thursday, March 15 2012 @ 11:27 AM EDT
The API copyright issue is going into the zombie phase*, now that Judge Alsup
has put his finger on the crux of the biscuit.

* BS&F will say, "The agreement doesn't say X, but we think it should
have said X, so X is implied."

The judge is interested in the technology. He understands mathematics.
Obviously he can cope with law. He doesn't wait for Google to call Oracle's
bluffing over Java.

This is looking better all the time.

IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

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Oracle v. Google - Google Requests Continuance; Not Likely
Authored by: Anonymous on Thursday, March 15 2012 @ 11:39 AM EDT
After so much thought trying to grasp Oracle's Java API
complaint, the only conclusion I can come up with that makes
any sense to me is this.

Oracle says that if you create a library that uses the Java
API, i.e. function calls, etc that are the same as our Java
function calls, you have violated our copyright of the Java
Language that we think we own. It is not obvious to me that
what lies behind those function call makes a difference. I
suppose that if you really are making a pure Java library
then you are OK. But, if you are just using the prexisting
API for some other use, then there is a problem.

As far as the recipe analogy, in this case, it falls apart.
It falls apart because if you add 2 cups of flour you get
the effect of two cups of flour, not 1 tsp of pepper.
One cannot take a recipe for cupcakes and produce a pot
of chile (some may disagree here ;-).

That said, using a prexisting API and have it do something
other than what it appears to do is going to do nothing but
make a WHOLE bunch of programmers very upset and quickly
flee to work other projects.

So it sounds like all Google has done is use a prexisting
API to produce the same results as the original, but have
just provided different innards that are appropriate for
what they wanted to achieve.

Back to the recipe analogy. Google just decided to use a
different mixer, pan, and oven than the ones Oracle includes
with their recipe collection.

In some ways I can see Oracle's point. However, from what
I can gather about existing copyright law (IANAL), I don't
see how Oracle can have a case here.

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Judge to Court appointed Expert
Authored by: celtic_hackr on Thursday, March 15 2012 @ 12:05 PM EDT
Paraphrased: "You are free to accept Oracle's Expert's baloney, or come up
with a your own realistic honest opinion."

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More Than a Bit Disturbing?
Authored by: DaveJakeman on Thursday, March 15 2012 @ 12:31 PM EDT
No, more than very reassuring. Aslup gets it. His one-paragraph question
feigning innocence is exactly the right question to ask, and most embarrassing
for Oracle. Beautifully writ. As another put it, a nuclear hand grenade.

I'm wondering about the timing of this question too. The Judge might have asked
this much earlier, but now that patents are pretty much decimated and Oracle are
looking to emphasize copyrights instead, perhaps the timing couldn't have been

When a well-packaged web of lies has been sold gradually to the masses over
generations, the truth seems utterly preposterous and its speaker a raving

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$561 million figure is only limiting on Oracle
Authored by: Ian Al on Thursday, March 15 2012 @ 12:36 PM EDT
I think I have a translation. Unfortunately, the English language is rather limited which makes the translation rather long. Anyway, here goes.
Oracle have chosen to plague my court with a series of three dramatically flawed damages reports in which they, either, make up total figures which are hopelessly high, on their face, by an order of magnitude or are little more than a guess at the highest number the court will be prepared to place before a jury. This after I pointed out that $100 million would be a good starting point.

The entire process of patent evaluation and the relative value of patents to copyrights proffered by the report is either more guesswork or the outcome of dangerously flawed statistical work.

I'm not prepared to let Oracle see how the land lies during the jury trial and change the number to increase their chance of winning.

They chose $561 million and now they must both live with it and justify it to the jury in the face of all the points already made by Google. I questioned the fees being earned by Cockburn, early in the case. I was right to be amazed.

Google are, of course, free to argue for any figure in front of the jury. Any figure that is not $0, that is. That would be ridiculous. I have three dollars and twenty cents in my pants pocket and I suggest Google start there and work down to $1 for the handful of literally copied files that were briefly in Android.

Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

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Sparks from a Clue Stick or The Oracle Searches for "Expressed Reservations" on the Mountaintop
Authored by: webster on Thursday, March 15 2012 @ 02:19 PM EDT

The Request for Briefing is worth an article in itself. There is a plethora of ramifications as they say in Peoria.
  • It is no surprise Mark finds this turn of events "more than a bit disturbing." The Judge must have figured since the patents were so shakey there must have been some substance to the API accusations. This is an area that has been gone over before. There have been rulings. This Request was spurred by the elegant trial brief on copyright by Google. It is just eighteen pages but it says that Google admits using the API's; Oracle accuses them of using the API's; there is no factual issue, not for the judge or the jury. It is a legal issue, a question of law. Google said the API's were merely functional. The Judge didn't accept that. He said there might be something fancy and worth protecting in JAVA API's. Mark is upset because this is late in the game. The Judge has made rulings presuming knowledge in this area. Indeed, certainly Google has briefed it. Oracle just let it lie with a triumphal smirk toward Defense table. The reply briefs he has ordered will go over the same grounds with the addition of API grants and reservations.

  • But give the Judge credit. He is starting to grok something inconsistent and disturbing. How can you let everyone use JAVA and not its API's? And the Judge's last question: "Did Sun statements that made the Java programming language available for all to use expressly reserve as to the Java APIs?" translates as follows: "Did Sun statements that made the Java programming language available for all to use implicitly grant use of the Java APIs? The law is not going to favor an interpretation of a clause that renders it, or the whole document, worthless or inconsistent.

  • If Oracle had any "expressed reservations" of API's, they would have been in this case by now. They are going to come up with "implicit reservations" like their banning of some JAVA on mobile.

  • The Judge's first question will also require a twist from Oracle. He notes another disturbing inconsistency [or the same]: Is a promise to open up the JAVA language made worthless by denying the API's?
So the Judge has found his own angle on copyright here, the express or implied reservations or grants to the API's. The answer will be based on that which he declined to accept: API's are merely functional and not copyrightable. They are taken for granted in the tech world and thus hard to explain to aliens.


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Real Life API Programming Example for Mark and PJ's Benefit
Authored by: RMAC9.5 on Thursday, March 15 2012 @ 02:56 PM EDT
On the other hand, if the programming language was "opened" but the APIs were not, what utility did "opening" the Java programming language really have? Feel free to chime in on that point.
In 1976 I was part of an application programming team that eventually grew to 12 programmers. We were writing COBOL programs which required our eventual users users to enter/use correct Gregorian dates. Because the COBOL language (at that time and maybe even today?) did not offer a date data type, each of us began the laborious task of writing our own "30 days hast September" logic and copying it into each program that needed it when Bill, our senior programmer, decided that this was stupid. He researched the logic for calculating correct dates [including Pope Gregory XIII's 10 day October date correction] and created an assembler module that our COBOL programs could call as long as we called it correctly (i.e. by it's API). Once everybody agreed to abandon their own date logic and call Bill's assembler date module, it became an integral part (i.e. can't be separated) of our application. As a programmer, even thought I have never written a JAVA program, I am certain that the GPL'd JAVA language and APIs have an identical relationship (i.e. they can't be separated)!

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Language vs. API
Authored by: tknarr on Thursday, March 15 2012 @ 03:36 PM EDT

PJ, there's a distinction made between the language proper and standard library APIs. In a language like C, for instance, we have the printf() function. It's not actually part of the C language, it's part of the C Standard Library API (which is a completely separate specification). You normally expect it to be available when programming in C, but it's possible to write C without it. In fact you have to be able to, since printf() is itself written in C using lower-level operating system calls to do the actual I/O. Those in turn are (in Linux) written in C, and only down at the bottom of the driver stack do you actually find assembly-language code to manipulate I/O registers. So yes it'd be entirely possible to make the language specification open but restrict the standard library API.

The problem Oracle has is that when Sun laid down the class namespaces they specifically reserved the java.* and javax.* namespaces for the Java standard library, and laid down in the language specification that those namespaces must exist and must follow exactly the API Sun laid down for them. That was done in the language specification itself, to insure that all Java programmers had access to the standard library functionality and could code using it without worrying about whether this or that particular flavor of Java supported those classes. That's what got Microsoft into trouble over Java: not that they extended it, but that they altered the java.* and javax.* namespaces. By nailing down that part of the standard library API in the language specification itself, Sun made the API part of the language. If Google's smart, that's going to trip Oracle up.

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Conflating the API and the libraries
Authored by: bugstomper on Thursday, March 15 2012 @ 04:04 PM EDT
When Oracle talks about the creativity that goes into the organization of the
packages and classes of the API, they are talking about the class library, not
about the API itself. I think that Judge Alsop has picked up on the confusion
that has been brought into this case by that conflation and will force the
parties to clarify the distinction by making them be specific about the
copyright issues.

The Java language cannot be kept separate from at least the Java Standard
Classes. As has been pointed out in other comments here, you can't even write a
Hello, world application without making use of classes in the java and javax

Designing the class libraries took some creativity. There was creative choice
involved in deciding that math functions would be in a java.lang.Math class and
how to define Collection classes, which collections how to group the collection
classes into a package hierarchy. But creative choice is not the deciding
factor. There was plenty of creative choice in designing the java language, but
it has been made free to use. The particular structure of the Java Standard
Library has to also be free to use if the Java language is to be usable at all.

Once you have the structure of packages and classes and methods specified, once
you actually have a standard class library defined for the language, then the
parts that Google copied, the package and class and names and method signatures,
are fully functional and required for interoperability with the already
specified library.

I see nothing in Oracle's arguments on what is copyrightable that is not
speaking to the library itself rather than interface. And API does mean
"interface" not "library".

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Oracle v. Google - Google Requests Continuance; Not Likely
Authored by: Anonymous on Thursday, March 15 2012 @ 04:49 PM EDT
It occured to me today that this may be similar to MATLAB
and GNU Octave. Octave was first released in 1994. MATLAB
apparently started comercially in 1984. (All from Wikipedia)
They are basically the same language in that they are
compatable with each other. I do not know the details of
either's development, but I do not see Mathworks suing GNU
for copyright infringment over the language API and syntax.

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What out precedent?
Authored by: jbb on Thursday, March 15 2012 @ 04:53 PM EDT
ISTM the judge is looking for a way to throw out the API claims on a technicality (that these particular APIs come for free with the language since the language was offered for free). What happens to the precedent set by his summary judgment ruling that tossed out Google's functionality defenses and said an API could be copyrighted even though every single element of the API is functional? Are we the people still stuck with that mess?

Shirky Principle: Institutions will try to preserve the problem to which they are the solution.

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Google's Trial brief on the APIs
Authored by: jbb on Thursday, March 15 2012 @ 07:08 PM EDT
link (pdf)

Google says that the judge should decide the API copyright issue, not the jury:

"... the court must determine whether any of the allegedly similar features are protected by copyright".

... The court must resolve any factual issues relevant to copyrightability; there are no subsidiary fact issues for the jury.

Indeed there is no practicable way for the jury to decide any subsidiary fact issues. The issue of copyrightablility must be decided before the jury deliberates, so that the Court can instruct the jury what elements should be considered when deciding whether there was infringement.

It is also interesting to see that Google does repeat all of the arguments that were rejected in their motion for summary judgment including:
  • Under 17 U.S.C § 102(b): copyright protection for an original work of authorship does not extend to and idea, procedure, process, system, method of operation, [...]

    Because all API specifications, by design, describe precisely the elements of APIs that are needed for compatibility between implementations of the APIs, and with programs that use the APIs, Sega applies to APIs regardless of programming language.

  • Alternatively, Scènes à faire: a programmer's freedom of design choice is ... circumscribed by extrinsic considerations such as [...] (2) compatibility requirements of other programs with which a program is designed to operate in conjunction [...] (4) demands of the industry being serviced and (5) widely accepted programming practices within the computer industry.

    Ninth Ciruit: when "specific [computer] instructions, even though previously copyrighted, are the only and essential means for accomplishing a give task, their later use by another will not amount to infringement."

  • Alternatively, any expression in the selection, arrangement and structure of the APIs has merged with the underlying ideas.

    [...] where the Court has already noted that an API is "the abstract concept of an interface between programs." [...] "In order not to confer a monopoly of the idea upon the copyright owner, such expressions should not be protected."

Shirky Principle: Institutions will try to preserve the problem to which they are the solution.

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Give Examples!
Authored by: Anonymous on Friday, March 16 2012 @ 01:30 AM EDT
Seeing what the judge said, it would be good for Google's
lawyers to point out near-identical APIs in other
programming languages. I am reasonably certain that
languages such as C++ (which predates Java) or C# have very
similar APIs. That would kill much of the creativity

Not to mention other languages that probably have similar
APIs, but are not that close in syntax. Not sure which -
probably good to take a look at Obj-C, Delphi, Python (?),
Visual Basic.

Just sayin'. ~cd

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8080 and Z-80
Authored by: Anonymous on Friday, March 16 2012 @ 06:53 AM EDT
Zilog used a different set of assembly language mnemonics for the same numeric
opcodes. Apparently Zilog considered the Intel 8080 mnemonics to be

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Judge may be "getting" that the Language does not exist without the API
Authored by: BitOBear on Friday, March 16 2012 @ 12:16 PM EDT

Java, the language and the API are inextricably bound. The Java language does not exist in the absence of the classes defined in the API.

There are too many examples to cite exhaustively, so I will go with the language reference definition that controls how every Java class method must be defined.

For example the oracle Java Language specification requires that Metho d Call Declarations may optionally contain an "throwsopt" option element to define what exceptions may pass out of a method to the calling context. Specifically in sec tion 8.4.6 that "It is a compile-time error if any ExceptionType mentioned in a throws clause is not a subtype (§4.10) of Throwable."

The Exc eption [a.k.a. java.lang.Exception] object is the typical base of all exceptions. It is itself descended from Thr owable [a.k.a. java.lang.Throwable] as required by the language spec. This is in turn, descended from Object [a.k.a. java.langlObject], the mandated base of all classes in Java.

The astute observer will notice that all these citations go directly back to the Oracle-published official sites. They will also notice that the language specification directly refers to, and therefore depends on and requires, items defined within the Java API. Thus the defined existence of the language is predicated on the defined existence of the API.

More correctly, the two documents, API and Language Spec, are each incomplete without the other. That means that either must be read as if it wholly includes the other in order for it to "be complete" or "make sense". Each document must be read as at least incorporating the other in full or in part. Absent any disambiguation (of which I could find no trace) in the texts, the full mutual incorporation is the only rational approach that doesn't then admit the possibility of dangerously undefined bits sneaking into the result.

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