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Oracle v. Google - The Supplemental Copyright Briefs
Wednesday, March 28 2012 @ 10:30 AM EDT

The parties have responded to the Court's request for supplemental briefs on certain copyright issues. The Google brief addresses the issue of whether Apache Harmony, and its incorporated APIs, are subject to a field-of-use restriction imposed by Sun. (831 [PDF; Text]) Oracle's brief addresses the applicability of Baker v. Selden. (833 [PDF; Text])

Google asserts that Sun's field-of-use restriction only arose if you licensed the Java technology development kit (TDK) to assure compatibility between your version of Java and the standard version produced by Sun, and if you took that license and assured compatibility, you were then licensed to use Sun's Java trademark to reference your compatible version. The Apache Foundation was never willing to license the TDK under those conditions, never did so, and refrained from calling or referencing Harmony as Java. As a consequence, Harmony has never been subject to the TDK field-of-use restrictions, and Sun never attempted to enforce those restrictions against Apache. Assuming the API implementations used by Google are those found in Apache, and given that Google does not refer to Android as Java or Java-compatible, this would appear to be a compelling argument.

Oracle, in turn, draws a distinction between the facts and findings in Baker v. Selden and subsequent cases pertaining to computer software which would appear to run counter to Baker. It is these subsequent cases, suggests Oracle, that control, not Baker. This, again, is a point where I get confused (and based on Judge Alsup's questions noted below, I am not alone), and I think I get confused because Oracle continues to try to confuse.

On one hand, Oracle has argued that the implementation of the API's are protected by copyright as derivative works of the API specifications, the documents that tell one how to build the code implementation of the API. On the other, (and in this case, in support of their argument against Baker) Oracle appears to argue that the content of the APIs is, in its own right, protected by copyright. I disagree as to the first of these arguments because it is that which I believe is knocked out by Baker, i.e., you cannot extend the copyright protection of one work (the specification) to the implementation of the idea of that work in a second work (the API implemented in code). As to the second argument, that the API implemented in code is independently protected by copyright, you have to separate out those portions of the code that are protectable under copyright from those that are not, the abstraction-filtration-comparison test that even Oracle acknowledges (although they have previously argued that it should not be applied). To me, a significant question with respect to the implementations is whether their structure, arrangement, and selection is driven by the choice of the implementer or by direction of the specification. In any case, Oracle has previously raised most of the points advanced in this supplement.

The Court has also now asked the parties to address a number of additional questions with respect to the copyright issues. (829 [PDF; Text]) Those questions or requests and the party(ies) directed to respond to them are:

  • Illustrate the interdependencies and relationships between and among the 37 APIs in suit and other packages. [Both]
  • How many APIs does Java contain beyond the 37 asserted APIs? [Both, although principally Oracle]
  • How many APIs does Android contain beyond the 37 asserted APIs? [Both, although principally Google]
  • Can the "structure, arrangement, and selection" of APIs be protected by patent law? [Both]
  • If the "structure, arrangement, and selection" of APIs was not copyrightable under Section 102(b) [of the Copyright Act], what is left for the jury to decide at trial regarding the API claims (specifications and implementation)? [Both]
  • Are the 37 APIs necessary (theoretically or practically) for using the Java programming language? [Both]
  • Are the 11 copied code files part of the 37 accused APIs? [Both]
  • Is Oracle asserting that Google copied the source code implementing the APIs? [Oracle]
  • Is Oracle claiming that Google's source code implementation of the Android APIs is a derivative work of the Java API specifications? [Oracle]
  • What is Oracle's answer to Google's point in reply that the copyright registrations do not create a presumption as to the copyrightability of the APIs? [Oracle]
  • Are there any aspects of the APIs that Oracle concedes are unprotectable by copyright? [Oracle]
  • Does Google admit to copying the structure, arrangement, and selection of the Java APIs? [Google]
  • Are the 11 copied source code files now removed from Android? [Google]

Some of these questions have been answered before, such as the last one (Google has said on numerous occasions that those 11 copied files have been removed). The parties are to address these questions today at the final pretrial conference.


*************

Docket

03/27/2012 - 829 - NOTICE RE DISCUSSION ITEMS AT FINAL PRETRIAL CONFERENCE. Signed by Judge Alsup on March 27, 2012. (whalc1, COURT STAFF) (Filed on 3/27/2012) (Entered: 03/27/2012)

03/27/2012 - 830 - Administrative Motion to File Under Seal filed by Google Inc.. (Van Nest, Robert) (Filed on 3/27/2012) (Entered: 03/27/2012)

03/27/2012 - 831 - TRIAL BRIEF Google's Supplemental Copyright Trial Brief Pursuant to March 26, 2012 Order by Google Inc.. (Van Nest, Robert) (Filed on 3/27/2012) (Entered: 03/27/2012)

03/27/2012 - 832 - ORDER DENYING MOTION TO SEAL by Hon. William Alsup denying 781 Administrative Motion to File Under Seal.(whalc1, COURT STAFF) (Filed on 3/27/2012) (Entered: 03/27/2012)

03/27/2012 - 833 - Brief re 793 Order, 708 Order, 754 Order, 827 Order - ORACLE'S MARCH 27, 2012 SUPPLEMENTAL BRIEF REGARDING COPYRIGHT ISSUES - filed byOracle America, Inc.. (Related document(s) 793 , 708 , 754 , 827 ) (Jacobs, Michael) (Filed on 3/27/2012) (Entered: 03/27/2012)


*************

Documents

829

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

NOTICE RE DISCUSSION ITEMS AT
FINAL PRETRIAL CONFERENCE

At the final pretrial conference on Wednesday, March 28, both sides should be prepared to address the following.

A. Questions For Both Parties.

Illustrate the extent to which the 37 APIs in suit actually have “an elaborate set of interdependencies and relationship within and across different packages,” as argued by Oracle. Specific examples and charts showing how API X ties into API Y will help. A list of all such interdependencies from each API to all others (of the 37) will be appreciated. In addition to the 37 APIs in suit, how many more official Java APIs are available? Relatedly, how many more official Android APIs are available? Can the “structure, arrangement, and selection” of APIs be protected by patent law? If the “structure, arrangement, and selection” of APIs was not copyrightable under Section 102(b), what is left for the jury to decide at trial regarding the API claims (specifications and implementation)? Are the 37 APIs necessary (theoretically or practically) for using the Java programming language? Are the 11 copied code files part of the 37 accused APIs?


B. Questions For Oracle.

By claiming that Google infringes the API implementation, is Oracle alleging that Google copied the source code implementing the APIs? Is Oracle also claiming that Google’s source code implementation of the Android APIs is a derivative work of the Java API specifications? What is Oracle’s answer to Google’s point in reply that the copyright registrations do not create a presumption as to the copyrightability of the APIs? Are there any aspects of the APIs that Oracle concedes are unprotectable by copyright?

C. Questions For Google.

Does Google admit to copying the structure, arrangement, and selection of the Java APIs? Are these 11 source code file removed from Android?

IT IS SO ORDERED.

Dated: March 27, 2012.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE


831

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.,
Defendant.

Case No. 3:10-CV-03561-WHA

GOOGLE'S SUPPLEMENTAL
COPYRIGHT LIABILITY TRIAL BRIEF
PURSUANT TO MARCH 26, 2012 ORDER

Judge: Hon. William Alsup


The Court has asked Google to address Oracle's contentions regarding an alleged field-of-use restriction and its purported applicability to the Apache Harmony project. As explained below, the Apache Software Foundation ("Apache") licenses Apache Harmony to the public without any field-of-use restrictions, and rejected Sun's attempt to impose such a limit on the use of Apache Harmony. Notwithstanding these facts, Sun has never sued Apache, and has never asserted that the use of the Apache Harmony libraries is conditioned on a field-of-use limitation. To the contrary, Jonathan Schwartz, Sun's CEO at the relevant times, has testified that Apache Harmony can be used for any purpose so long as the resulting product is not called "Java." There is no field-of-use restriction on the use of Apache Harmony. Oracle's field-of-use restriction argument is a red herring.

I. The Apache Harmony project was launched in August 2005, and licensed without
any field-of-use restrictions.

In August 2005, Apache announced the Apache Harmony project, the goal of which was to create an open-source product compatible with J2SE. This project followed open-source efforts by other groups to achieve the same goal, such as GNU Classpath from the Free Software Foundation. Apache licenses Apache Harmony to the public for free under version 2 of the open source Apache License. This license does not have any field-of-use restrictions.1

II. Apache never agreed to a field-of-use restriction, and Sun never objected to the use
by Apache and others of the Hava language APIs.

Jonathan Schwartz, Sun's CEO from 2006 to 2020, testified that, [REDACTED]

[REDACTED]
__________________________________

1 See, Apache License, Version 2.0, available at http://www.apache.org/licenses/LICENSE-2.0.html. Version 2. of the General Public License, the open source license that governs use of GNU Classpath, similarly has no field0of0use restriction. See General Public License, Version 2.0, available at http://www.gnu.org/licenses/gpl-2.0.html.

1


[REDACTED]
Schwartz Dep. at 49:11-50:10; see also id at 47:17-23 [REDACTED] However, "In order to call your product Java, and in order to feature to the marketplace that you were a Java phone or a Java device and to get that brand, you needed to pass that the -- the TCKs, the Testing [sic] Compatibility Kits." Id. at 46:17-21.

Starting in August 2006, Apache attempted to obtain from Sun a license to the J2SE 5.0 technology compatibility kit ("TCK"). The license to the TCK (i.e., to the suite of compatibility tests) that Sun offered to Apache would have limited the use of Apache Harmony to certain fields of use. Apache, however, never agreed to such a limitation.

In May 2007, with no TCK license in place for Apache Harmony, Schwartz publicly stated, "there is no reason that Apache cannot ship Harmony today." Trial Ex. 2341; Schwartz Depl. at 51:15-22. According to Schwartz, however, Apache, "wanted, in fact, to be able to call Harmony Java. And we held firm and said no, that's our core value. If you want to call it Java, you can pay, you know, the fee to go run the test and compatibility kits, and that enable you to tell your customers that you actually had a licensed Java runtime. But absent that statement, they, you know, couldn't say that, and they were frustrated by it." Schwartz Dep. at 52:16-23.

In June 2007, Apache wrote an open letter to Sun, requesting a TCK license without a field-of-use restriction. That same month, in an effort spearheaded by Oracle Corporation, twelve signatories, including a Google Engineering VP, urged Schwartz to grant Apache an unencumbered TCK license. See Trial Ex. 2347. Sun, however, refused. Because Apache was unwilling to agree any field-of-use restriction, it did not license the TCK. As a result, Apache did not agree to -- and never has agreed to -- a field-of-use limitation for Apache Harmony.

The lack of a TCK license, however, did not prevent others from use Apache Harmony:

[REDACTED]

2


[REDACTED]
Schwartz Dep. at 83:15-84:7. Even without at TCK license, "[a]nybody else who wanted to go create their own runtime, whether it was Apache Harmony or GNU Classpath, was free to do so; they just couldn't call it Java." Id. at 182:2-5. Mr. Schwartz will testify that commercial products from IBM and Hewlett-Packard used the Apache Harmony implementation fo the Java language APIs without objection from Sun.

III. There is no field-of-use restriction for Apache Harmony.

The dispute between Apache and Sun was about branding, and the ability to say that Apache Harmony is Java compatible. The end result was that Apache did not agree to a field-of-use restriction. Notwithstanding Apache's refusal to limit the field of use for Apache Harmony, Sun never sued Apache. In fact, Sun's CEO has testified that anyone can use the Apache Harmony code (and thus its implementation of the Java language API specifications) -- so long as it does not call its product "Java."

Finally, Google in any event does not call Android "Java." Google has used the term "Java" in its nominative, non-brand sense to describe, for example, how developers can use the free and open Java programming language to write applications for the Android platform. That, however, is not an attempt to brand the Android product "Java." Indeed, Oracle's complaint does not include a trademark infringement count. Oracle's field-of-use restriction argument is irrelevant and should be rejected.

Dated: March 27, 2012

KEKER & VAN NEXT LLP

/s/Robert A. Van Nest
By: ROBERT A. VAN NEST

Attorneys for Defendant
GOOGLE INC.

3


833

NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.

Case No. CV 10-03561 WHA

ORACLE’S MARCH 27, 2012
SUPPLEMENTAL BRIEF
REGARDING COPYRIGHT ISSUES

Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup


The Court has asked Oracle to address the applicability of Baker v. Selden, 101 U.S. 99 (1879). (ECF No. 827.) The short answer is that Baker provides at most a starting point for the general idea/expression dichotomy in copyright law. This case is fundamentally different, and Baker was decided in a different legal context. Google stretches Baker far beyond its holding.

The Copied Works In Baker Contained Very Little Expression. The copied works at issue here and in Baker lie at opposite ends of the factual spectrum. In Baker, the defendant used forms containing “ruled lines and headings” similar to those in a book-keeping system described in plaintiff’s copyrighted book. Baker, 101 U.S. 101. The Court described its holding as follows:

The conclusion to which we have come is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden’s book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.
Id. at 107. These “blank account-books” could hardly be more simple. See http://lcweb2.loc.gov/service/rbc/rbc0001/2011/2011gen155867/2011gen155867.pdf (displaying forms from files of Baker case). Even so, the defendant used “a different arrangement of the columns, and use[d] different headings.” Baker, 101 U.S. at 100. The Court found that the forms were “necessarily incident” to the plaintiff’s book-keeping system. Id. at 103.

The 37 APIs at issue are the opposite of blank forms. They encompass an enormous amount of creative expression. (See, e.g., ECF No. 780 at 1-2.) Google copied from them verbatim, and they are not “necessarily incident” to anything. Google’s expert admits it was not technically necessary for Google to copy them. In fact, Google designed many of its own APIs.

The distinction in the level of expression of the works at issue is critical. Even cases that cite Baker recognize it is only a starting point for analyzing this issue. In Computer Assocs. Int’l, Inc. v. Altai, Inc., for example, the Second Circuit stated: “While Baker v. Selden provides a sound analytical foundation, it offers scant guidance on how to separate idea or process from expression, and moreover, on how to further distinguish protectable expression from that expression which ‘must necessarily be used as incident to’ the work’s underlying concept. 982 F.2d 693, 705 (2d Cir. 1992) (quoting Baker, 101 U.S. at 104). The court then applied a detailed abstraction-filtration-comparison test. See id. at 706-11.

1


In applying a similar analysis to determine the copyrightability of a computer user interface, the Fifth Circuit also emphasized that the key issue is expression:

A user interface may often shade into the “blank form” that epitomizes an uncopyrightable idea, Baker v. Selden, 101 U.S. 99, 25 L. Ed. 841 (1880), or it can partake of high expression, like that found in some computerized video games.
Eng’g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1344 (5th Cir. 1994). The court distinguished the input/output formats in the user interface from the forms in Baker, finding they could have been structured in “numerous ways,” and that plaintiff had “proved original expressive content in the selection, sequence and coordination of inputs.” Id. at 1344-46.

Baker Was Decided In A Different Legal Context. Baker was also decided in a fundamentally different legal context. The forms at issue related to a book-keeping system, which did not itself enjoy protection under copyright law:

It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant’s account-book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints and engravings. An account-book, consisting of ruled lines and blank columns, cannot be called by any of these names unless by that of a book.
Baker, 101 U.S. at 101. The Court drew a distinction between the plaintiff’s book, which was copyrightable, and the book-keeping system it described, which was not. Id. at 102 (“But there is a clear distinction between the book, as such, and the art which it is intended to illustrate.”).

Here, the API specifications are part of the documentation of a computer program, which is expressly subject to protection under the Copyright Act. 17 U.S.C. § 101. They describe the structure of that computer program in great detail, and the Ninth Circuit has held that the structure of a computer program is copyrightable. Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989) (“Whether the non-literal components of a program, including the structure, sequence and organization and user interface, are protected depends on whether, on the particular facts of each case, the component in question qualifies as the expression of an idea, or an idea itself.”). Google cannot simply rely on Baker to contend that “any person may practice and use” the APIs. (ECF No. 823 at 3.) Nimmer sharply criticizes trying to use Baker for this type of blanket statement, emphasizing that the focus must always

2


remain on copyrightable expression. 1-2 Nimmer on Copyright § 2.18 [C]-[D].

The APIs Are Not An Uncopyrightable “System.” The APIs are also not a “system,” as Google now argues. Google never even explains what it means by “system.” In Am. Dental Ass’n v. Delta Dental Plans Ass’n, Judge Easterbrook rejected the notion that a code for dental procedures was a system: “A dictionary cannot be called a ‘system’ just because new novels are written using words, all of which appear in the dictionary. Nor is word-processing software a ‘system’ just because it has a command structure for producing paragraphs.” 126 F.3d 977, 980 (7th Cir. 1997). The court found the dental code copyrightable, after discussing Baker v. Selden. See id. at 981. But regardless of how Google labels them, the APIs are copyrightable because of their expressive content. Far less creative structures are entitled to copyright protection in this Circuit. See, e.g., CDN Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (prices in guide for collectible coins); Practice Mmgt. Info. Corp. v. Am. Med. Ass’n, 877 F. Supp. 1386, 1390 (C.D. Cal. 1994), aff’d in relevant part, 121 F.3d 516 (9th Cir. 1997) (numerical codes for medical procedures); Jacobsen v. Katzer, 2009 U.S. Dist. LEXIS 115204, at *9-10 (N.D. Cal. Dec. 10, 2009) (text files reflecting decoder information from model railroad manufacturers).

Lotus did opine that Baker supports its holding, but even Lotus cautioned against taking Baker too far. Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 814, 817 (1st Cir. 1995) (“We do not think that Baker v. Selden is nearly as analogous to this appeal as Borland claims.”). And neither the Ninth Circuit nor any other Circuit has adopted Lotus. In contrast, many cases have found that interface or structural aspects of computer programs much simpler than the Java APIs warrant copyright protection. See, e.g., Autoskill Inc. v. Nat’l Educ. Support Sys., Inc., 994 F.2d 1476, 1492, 1495 n.23 (10th Cir. 1993) (“organization, structure and sequence” and “keying procedure” of computer program to teach reading skills); Eng’g Dynamics, 26 F.3d at 1345 (input/output formats in interface of structural engineering program); Consul Tec, Inc. v. Interface Sys., Inc., 1991 U.S. Dist. LEXIS 20528, at *2 (E.D. Mich. Oct. 23, 1991) (“commands, command phrases, and other aspects” of user interface); Control Data Sys., Inc. v. Infoware, Inc., 903 F. Supp. 1316, 1321-24 (D. Minn. 1995) (input/output formats, file layouts, commands); CMAX/Cleveland, Inc. v. UCR, Inc., 804 F. Supp. 337, 355 (M.D. Ga. 1992) (file structures).

3


Dated: March 27, 2012

MORRISON & FOERSTER LLP

By: /s/ Michael A. Jacobs

Attorneys for Plaintiff
ORACLE AMERICA, INC.

4


  


Oracle v. Google - The Supplemental Copyright Briefs | 248 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
I thought I read here the 11 files were still available
Authored by: pem on Wednesday, March 28 2012 @ 10:45 AM EDT
in historic versions of Android in the repository.

If this is the case, Google might consider using esr's reposurgeon to modify the
repositories to correct this.

Or, since nobody really used them, and they are presumably available from Sun as
well, maybe it doesn't matter.

[ Reply to This | # ]

Corrections here
Authored by: feldegast on Wednesday, March 28 2012 @ 10:47 AM EDT
So they can be fixed

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

I certainly hope google doesn't argue that APIs are patentable
Authored by: pem on Wednesday, March 28 2012 @ 10:48 AM EDT
APIs are designed to make it easy for programmers to access library functions.

A patentable API would be like patenting the brake and accelerator on the floor
and the steering wheel up high because somebody noticed that people are better
at steering with their hands and can accelerate and brake fine with their
feet.

[ Reply to This | # ]

News picks
Authored by: feldegast on Wednesday, March 28 2012 @ 10:48 AM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off topic
Authored by: feldegast on Wednesday, March 28 2012 @ 10:49 AM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Wednesday, March 28 2012 @ 10:50 AM EDT
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Oracle on the losing end now...
Authored by: Anonymous on Wednesday, March 28 2012 @ 11:05 AM EDT
The court distinguished the input/output formats in the user interface from the forms in Baker, finding they could have been structured in “numerous ways,” and that plaintiff had “proved original expressive content in the selection, sequence and coordination of inputs.” [...]
the Ninth Circuit has held that the structure of a computer program is copyrightable. [...]
"Nor is word-processing software a ‘system’ just because it has a command structure for producing paragraphs."

I see nothing in Oracle's reply that somehow compares to their APIs in terms of copyrightability. They cite three different paradigms - user interface, structure of a computer program and word-processing software, all of which are fundamentally different from a programming API. To take the user interface example - if you are doing an application under Windows, there are not many options on how to do a menu to integrate well with the OS... and most likely, you will follow the menu paradigm of Windows - menu headers and sub-items, that may or may not further expand. This is the API to access the underlying functions, and I doubt strongly that the structure per se is copyrightable. (While any particular menu may well be.

Google, on the other hand, did a pretty solid job IMO. They explained clearly that Apache has no FOU restrictions, so neither should Android.

I think the judge's further questions drive it pretty much to the point, and most likely Google is going to have a field day there. I think if the structure, arrangement and selection is left out, the case pretty much falls apart. And while the APIs are not, technically speaking, necessary for programming in Java, they represent functions that are needed, and there is only so many ways to code them. For the sake of comparison, there needs to be a function to write a string to stdio, and whether that is a function called writeString() located in java.io, or whether this is called outputStr(), and located in android.inputoutput, is irrelevant; and Oracle would probably have sued nevertheless.

[ Reply to This | # ]

Counting APIs?
Authored by: Anonymous on Wednesday, March 28 2012 @ 11:12 AM EDT
How are they splitting things into 37 APIs?

I thought this was about *the* Java API, not a bunch of bits of Java APIs.

[ Reply to This | # ]

Oracle has a ridiculous argument here
Authored by: Anonymous on Wednesday, March 28 2012 @ 11:12 AM EDT
Oracle argues that there is no or little creative expression
on the tables in Baker. Just look at the book in question
and it should be obvious that there is creative expression
there.

Google did not argue that the Java api is not creative,
there is agreement there. But Oracle argue that just because
the API has "more expression" (a.k.a. is bigger), it is
different than Baker. That is a very bad argument.

If the book in Baker had even more tables, it would be
entitled to copyright protection? Don't think so. It is not
a question of quantity here, as Oracle insist to argue.

[ Reply to This | # ]

Questions for Google
Authored by: scav on Wednesday, March 28 2012 @ 11:47 AM EDT
Q: Does Google admit to copying the structure, arrangement,
and selection of the Java APIs?

How about...

A: No, but Google admits to copying the structure,
arrangement and selection of the Harmony APIs (which are not
Java, and for which it has a license).

---
The emperor, undaunted by overwhelming evidence that he had no clothes,
redoubled his siege of Antarctica to extort tribute from the penguins.

[ Reply to This | # ]

"structure, arrangement, and selection"
Authored by: Anonymous on Wednesday, March 28 2012 @ 02:14 PM EDT
Judge Alsup seems to have a fixation on this. I think I have a glimmer
of what he's getting at. The analogy of e.g. a telephone book has been
raised here before. The names, addresses and numbers are facts that
cannot be copyright. The page size, typeface, number of entries per
page are forms of expression and are subject of copyright. It should be
possible for publisher B to take publisher A's phone book, extract
the facts, and reprint it in exactly the same page size, typeface,
number of entries per page, but instead of arranging entries
alphabetically by name, arrange entries by house number and
suburb, and omit all used car sellers. This does not infringe A's
copyright according to Alsup because it does not copy A's
"structure, arrangement, and selection".

From my understanding of what an API is, it may be possible to list the
named items in a different order, print them with a different emphasis,
group and indent them differently. But, again from my meagre
non-programmer understanding of APIs, if your language permits you
to include dependent items in an API, the order and grouping of
items will be functionally limited by those dependencies. It seems to me
that the Java language with its classes, inheritances and dependencies
allows limited scope to vary the "structure, arrangement, and
selection".
The court may find it has some work to do sorting out how much of
that is functional and how much expressive.

[ Reply to This | # ]

APIs are Functional; They Define How Programs Exchange Information
Authored by: RMAC9.5 on Wednesday, March 28 2012 @ 02:45 PM EDT

Some APIs are simple; too simple to exhibit ANY creative expression. Other APIs are extremely complex; they exhibit MORE than enough "structure, arrangement, and selection" to pass any "creative expression" test. In either case it doesn't matter; APIs are functional.
This is a fundamental axiom or postulate of every computer language that I am remotely familiar with. When APIs are used incorrectly (i.e. not according to their design), information exchange either doesn't occur or it occurs improperly, and "stuff" breaks.

[ Reply to This | # ]

Settlement numbers
Authored by: maroberts on Thursday, March 29 2012 @ 01:42 AM EDT
I notice that the level of damages (about $2.5 million) that Google is offering
as settlement is pitifully small, and even lower than the $30-50 million
starting point that seems to be in the recent filings. Pretty amazing since the
case started at $6 billion or so.

At this point the low and high end of damages don't seem to be far apart, and
moreover the legal fees probably are comparable to the range of settlement
damages, so I am surprised that a) Oracle doesn't seem amenable to settlement on
the grounds that their case seems to be going down the pan and b) that Google
doesn't seem amenable to a more reasonable offer now that the level of
settlement is unlikely to be significant.

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Confusion
Authored by: sproggit on Thursday, March 29 2012 @ 02:07 AM EDT
Mark wrote,
"This, again, is a point where I get confused (and based on Judge Alsup's questions noted below, I am not alone), and I think I get confused because Oracle continues to try to confuse."

I am not entirely sure if it is Oracle who are trying to confuse, or if this is purely the Modus Operandi of BSF. I appreciate that the Oracle filing in this article [and in the case in general] was submitting by Michael Jacobs of MoFo, but there is a pattern here.

The requirement to act first and foremost as officers of the court has long since departed. Here, BSF are working to push the envelope and engineer as much of an advantage as possible for their client. They are simply trying to hide their theories and their arguments from Google until they get before a jury. This is classic BSF territory [though I suspect they are not alone in this approach].

In fairness I think Judge Alsup has been much better at curtailing the practice than Judge Kimball, but it does seem to this observer that it is possible to game the system in this way [when acting as plaintiff].

Whilst past behavior is not always an indicator of future performance, in this case the repeating patterns exhibited by BSF (and not just their courtroom antics, but their selection of clients) will pretty soon leave me suspecting that anyone BSF takes on just has a nuisance case and deep pockets.

What a sad state of affairs.

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  • Confusion - Authored by: Anonymous on Thursday, March 29 2012 @ 08:41 AM EDT
Why is Judge Alsup asking about patents in APIs?... Oh my goodness, is he, could he, will he...
Authored by: Ian Al on Thursday, March 29 2012 @ 05:12 AM EDT
Why is the judge asking if the APIs can be patented when neither party has raised this matter? The patents in this case are about tools in the JDK and the way the run-time environment is constructed for security and the way it operates but, none of them are in the API Specification or in the API implementation code (unless I have missed something).

In Software Is Mathematics - The Need for Due Diligence PoIR repeated a point he had already made a number of times,
A common objection is that computers are not Turing machines, therefore the Church-Turing thesis is legally irrelevant because the patents are drafted to what runs on actual computers. This is failing to notice that the Church-Turing thesis is about computations. It is not about computers. This objection does not answer the point which is being made because this point brings no requirement for the computer to be a Turing machine. The requirement is for the computation to be Turing-computable.
Any software must be computable (executable) on the theoretical, mathematical, Turing, universal computation machine or it has no hope of being executed by a general purpose computer approximating to the Turing hypothetical computing machine. In other words, all software must be written in a math language in order to run on Turing's hypothetical math machine or an approximation to it in the form of a general purpose computer.

Of course, there is much more to software than just the lines of code written in a math language. There are the brilliant and creative ideas that go into great software. Ideas are not patentable subject matter.

In Patents are not supposed to be awarded for problem solutions I note that all software works by just instructing the processor to load data from memory, save data to memory, do arithmetic with that data and make computation decisions on the results of that arithmetic. I make the point that any patented process using a computer is equally patentable using a calculator and a human being to load and save the data, key in the arithmetic functions and make the computational decisions.

In You are rightly wrong! I note how an automatic gearbox controlled by a microcontroller computer should be patentable, but the software should not.

In Fonar Corp. v. General Elec. Co. is completely correct I show how the Fonar opinion, which PoIR brought to my attention - last year, applies to the gearbox software. I also show how Bilski, Flook, Diehr, Benson, Fonar, and Mayo show that just software in a computer is unpatentable subject matter.

In my comment 'I don't understand patents' under this Groklaw story, I comment on how Judge Alsup was asking for the number of asserted claims to be limited and individually priced, but that I thought each patent could only cover one invention and that all the claims of a patent needed to be infringed to be liable for damages. The point about all the claims needing to be infringed was one of the points made by Gene Quinn a couple of years ago about software patents.

In I think the judge has hit a snag I suggest that the judge realised there was a problem and decided that each patent should be priced rather than each claim. Once he had come to that conclusion, did he look at the patents in suit and ask himself just what the invention was all about and whether the claims, when considered as a whole, patented invention, looked anything like a patentable machine, process, method or transformation?

Is the judge reacting to the opinion given in Mayo to ask if patents can be awarded at all to something just in software, bearing in mind that all of the patents in the case are just in software with no post-solution activity?

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

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Google Offer Settlement Terms
Authored by: AlexWright on Thursday, March 29 2012 @ 07:37 AM EDT
Go ogle offers Oracle slice of Android profits for patents (The Reg)

"According to court papers (PDF) filed on Tuesday, Google is offering $2.72 million for infringements of Patent RE38104 and 0.5 per cent of future Android revenues. It estimates patent 6061520 is worth just $80,000 and 0.015 of any money gleaned from the operating system. In both cases the amount will be shaved to reflect the number of non-infringing handsets."

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Are the 11 copied source code files now removed from Android? [Google]
Authored by: Anonymous on Thursday, March 29 2012 @ 01:00 PM EDT
Is this not equivalent to "Have you stopped beating your wife?" given
the preceding question "Does Google admit to copying the structure,
arrangement, and selection of the Java APIs?"

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