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Google Files Motion for Leave to File Motion for Summary Judgment on Oracle's Copyright Claim - Updated 2Xs: Judge says not yet
Wednesday, February 16 2011 @ 11:13 PM EST

Google has sent a letter [PDF] to Judge William Alsup, asking leave to file a motion for summary judgment on Count VIII of Oracle's Amended Complaint in Oracle v. Google.

Count VIII is the one about copyright infringement. So regardless of how the judge rules, we get to see Google's position, which if I translate into non-legalese would be: "What we did isn't actionable, being covered by fair use or the files are so few their use is de minimis or they are not copyrightable." I have done the letter as text for you.

If you recall, the judge issued an order [PDF] last week saying neither party could file such a motion without permission, because he's really busy with a criminal case. He told them to file a summary of what they'd like to file in a motion in a request to him, and the other side can respond if they wish to oppose two business days later, so that's what will happen next, I expect, that Oracle will oppose letting Google file the motion. Then the judge will decide if Google can file the motion or not.

Update: Google has also filed with the USPTO, asking for an ex parte reexamination of four of Oracle's patents.

Here's the docket entry:

02/16/2011 - 88 - MOTION for Leave to File Motion for Summary Judgment filed by Google Inc.. (Baber, Bruce) (Filed on 2/16/2011) (Entered: 02/16/2011)

The API files Oracle identified, Google says, are unprotectable:
Oracle's allegations are that Android "copies" portions of certain basic, functional Java Application Programming Interfaces or "APIs," which are interfaces that consist of common names of Java programming language constructs, methods of operations, commands and other functional elements. The use in Android of such common and unprotectable elements is purely functional, namely, to enable applications written in the Java programming language to run on Android devices and to enable programs created by developers for the Android platform to interoperate with existing third party, Java-based software and tools. Such use cannot constitute copyright infringement as a matter of law.
If any of it were protectable, it's covered by fair use, Google adds. Finally, Google says the 12 files at issue, out of nearly 100,000, "comprise in the aggregate less than one percent of Android and a similarly small percentage of the Works" and the use is therefore de minimis and not actionable. You can't copyright in software "ideas, concepts, processes, procedures and methods of operations; words, names and short phrases; functional elements; and elements that are in common use, as to which there are only a limited number of means of expression or the expression is dictated by technical or compatibility requirements, that are in the public domain".

As for the "only two files allegedly containing 'copied' code," Google says they were "created by Google and provided to Oracle for use in open source releases of Java". Apparently, at the hearing on February 9, Oracle stated that it isn't claiming copyright on the Java language. Duh.

Here's the heart of Count VIII from Oracle's amended complaint [PDF], and you can read it in full as text in the article linked to above, paragraphs 37-47 of the document:

39. Google’s Android infringes Oracle America’s copyrights in the Java platform, and Google infringes Oracle’s exclusive rights under copyright by reproducing and distributing Android and inducing others to reproduce and distribute Android or the code contained within it.

40. Android includes infringing class libraries and documentation. Approximately one third of Android’s Application Programmer Interface (API) packages (available at http://developer.android.com/reference/packages.html) are derivative of Oracle America’s 19 copyrighted Java API packages (available at http://download-llnw.oracle.com/javase/1.5.0/- 20 docs/api/ and http://download-llnw.oracle.com/javase/1.4.2/docs/api/) and corresponding documents. The infringed elements of Oracle America’s copyrighted work include Java method and class names, definitions, organization, and parameters; the structure, organization and content of Java class libraries; and the content and organization of Java’s documentation. Examples of this copying are illustrated in Exhibit I to this complaint. In at least several instances, Android computer program code also was directly copied from copyrighted Oracle America code. For example, as may be readily seen in Exhibit J, the source code in Android’s “PolicyNodeImpl.java” class is nearly identical to “PolicyNodeImpl.java” in Oracle America’s Java, not just in name, but in the source code on a line-for-line basis.

41. Google has distributed Android to many companies interested in the mobile device market, including the members of the Open Handset Alliance, with the understanding and intention that those companies would distribute Android to developers and end-users, all with the purpose of encouraging and promoting the creation and execution of Android software applications. Users of Android must copy and use infringing Java class libraries, or works derived therefrom, to manufacture and use functioning Android devices, in violation of Oracle’s copyrights. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to copy and distribute infringing works.

I can't predict how the judge will rule, but I am certainly not a bit surprised to see this motion. And if you are a regular reader of Groklaw, you're probably not surprised that I'm not surprised.

Update: Oracle filed a reply and the judge has ruled, saying Google can't file now for summary judgment, but it can later after discovery has progressed:

02/18/2011 - 89 - RESPONSE (re 88 MOTION for Leave to File Motion for Summary Judgment ) filed byOracle America, Inc.. (Jacobs, Michael) (Filed on 2/18/2011) (Entered: 02/18/2011)

02/18/2011 90 - ORDER DENYING LEAVE TO FILE SUMMARY JUDGMENT MOTION by Judge Alsup denying 88 Motion for Leave to File (whalc1, COURT STAFF) (Filed on 2/18/2011) (Entered: 02/18/2011)

Here's the judge's position:

Pursuant to the order regarding motion practice (Dkt. No. 86), defendant Google Inc. requests leave to file an early motion for summary judgment. The proposed motion would target the copyright claim for relief (Count VIII) in Oracle America, Inc.’s amended complaint. Plaintiff Oracle opposes Google’s request on the grounds that the proposed summary judgment motion “is neither ripe nor well-taken.” Having considered both parties’ submissions, this order finds that good cause has not been shown to engage in a summary judgment battle at this time. Google’s request is DENIED without prejudice to renewal after a more complete evidentiary record has been developed through discovery.

Here's the letter as text:

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

[King & Spalding letterhead]

February 16, 2011

The Honorable William Alsup
U.S. District Court, Northern District of California
[address]

Re: Oracle America, Inc. v. Google Inc., No. C 10-3561 WHA

Dear Judge Alsup:

In accordance with Your Honor's February 9 Order, we respectfully request on behalf of Google leave to file a motion for summary judgment on Count VIII of plaintiff Oracle's Amended Complaint. Count VIII alleges that Google's Android -- an open source software platform whose source code has been publicly available since 2008 -- infringes copyrights owned by Oracle in two works, namely versions 1.4 and 5 of the "Java platform" as a "bundle of related programs, specifications, reference implementations, and developer tools and resources that allow a user to deploy applications written in the Java programming language on servers, desktops, mobile devices, and other devices." (Am. Comp. ¶ 9) (emphasis added).

In response to Google's interrogatory asking Oracle to identify the factual bases for this claim, Oracle has identified fifty-one "Android API package specifications" and/or the Android code implementing them that Oracle contends are "derived from or substantially similar to Oracle's copyrighted Java API package specifications." Oracle has identified only twelve files -- out of the nearly one hundred thousand files that comprise Android -- that contain any materials (code or comments) that Oracle claims have been copied from Oracle's Works.

Under well-established principles of copyright law, there can be no copyright infringement unless the accused work, compared to the plaintiff's work in its entirety, is

The Honorable William Alsup
February 16, 2011

substantially similar to -- or, if the range of any protectable elements is narrow (as here), virtually identical to -- protectable portions of the plaintiff's work. See, e.g., Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994), cert denied, 513 U.S. 1183 (1995). The court must exclude from comparison of the works any elements that are not protected by copyright, and, in this case, need only evaluate the elements Oracle has identified as allegedly infringing. See, e.g., MiTek Holdings, Inc. v. Arce Eng'g Co., 89 F.3d 1548, 1555 (11th Cir. 1996).

Such unprotectable elements in the case of computer software works include ideas, concepts, processes, procedures and methods of operations; words, names and short phrases; functional elements; and elements that are in common use, as to which there are only a limited number of means of expression or the expression is dictated by technical or compatibility requirements, that are in the public domain ( see, e.g., http://g.oswego.edu/dl/concurrency-interest/ (materials identified by Oracle as infringing in fact created by a third party and released into the public domain)), or as to which Oracle cannot claim copyright protection. See, e.g., http://markmail.org/thread/xwyxemce75vvz33h (the only two files allegedly containing "copied" code were created by Google and provided to Oracle for use in open source releases of Java).

Oracle has now acknowledged (2/9/2011 Transcript at 8) that it makes no claim of infringement of the Java programming language itself, which has for many years been in widespread use by programmers -- over 6.5 million of them, by Oracle's estimate. (Am. Compl.¶ 9). Oracle's allegations are that Android "copies" portions of certain basic, functional Java Application Programming Interfaces or "APIs," which are interfaces that consist of common names of Java programming language constructs, methods of operations, commands and other functional elements. The use in Android of such common and unprotectable elements is purely functional, namely, to enable applications written in the Java programming language to run on

2

The Honorable William Alsup
February 16, 2011

Android devices and to enable programs created by developers for the Android platform to interoperate with existing third party, Java-based software and tools. Such use cannot constitute copyright infringement as a matter of law. See, e.g., Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd, 516 U.S. 233 (1996) (affirming summary judgment).

To the extent that any protectable elements of the Works are used in Android, such use would also qualify as a fair use under 17 U.S.C. § 107. The Works are technical works subject to limited copyright protection, and Oracle has only identified a very small portion of the Works as allegedly being copied. Android's use of those portions is for functional technical reasons, is needed for interoperability, and is transformative, resulting in a new and significantly different work. See, e.g., Sony Computer Ent., Inc. v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000); see also Kelly v. Arriba Soft Corp., 336 F.3d 811 (9th Cir. 2003)(summary judgment); Mitel, Inc. v. Iqtel, Inc., 896 F. Supp. 1050, 1055-56 (D. Colo. 1995), aff'd, 124 F.3d 1366 (10th Cir. 1997) (holding interfaces to be unprotectable and/or their use to be fair use).

Finally, the portions of Android as to which Oracle alleges literal copying -- i.e., the twelve files identified in Oracle's interrogatory answer -- comprise in the aggregate less than one percent of Android and a similarly small percentage of the Works. Even if such files were identical to Oracle files (which they are not), their use is de minimis and is not actionable.

These issues are ripe and can be decided without further discovery as a matter of law, thereby simplifying the issues and conserving resources. We appreciate the Court's consideration of this request, and would be prepared to file our motion no later than February 28.

Respectfully submitted,

[signature]
Bruce W. Baber
Counsel for Defendant Google Inc.

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