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Oracle v. Google - Day 5 Filings; What Is the "Work as a Whole?" ~mw
Saturday, April 21 2012 @ 10:00 AM EDT

Day 5 and the activity is still centered on the courtroom, which is as it should be. However, there continue to be filings in the case, the first of which is the stipulation the parties submitted for the court's approval yesterday with respect to the selection, arrangement and structure of the 37 APIs (946 [PDF; Text])

More important is the order issued by Judge Alsup requesting another brief on the copyright issue. (948 [PDF; Text]) With the order we are finally getting to the conflict among what Oracle argued in its complaint, what it dances around with in court when talking about infringement versus damages, and Oracle's licensing practices with respect to Java.

When talking about copyright infringement in its complaint (Amended Complaint [PDF]), here is what Oracle has to say:

9. One of the most important technologies Oracle acquired with Sun was the Java platform. The Java platform, which includes code and other documentation and materials, was developed by Sun and first released in 1995. The Java platform is 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. The Java platform is especially useful in that it insulates applications from dependencies on particular processors or operating systems. To date, the Java platform has attracted more than 6.5 million software developers. It is used in every major industry segment and has a ubiquitous presence in a wide range of computers, networks, and devices, including cellular telephones and other mobile devices. Sun’s development of the Java platform resulted in many computing innovations and the issuance to Sun of a substantial number of important patents.

...

11. Oracle America owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform. Oracle America’s Java-related copyrights are registered with the United States Copyright Office, including those attached as Exhibit H.

...

38. As noted in paragraph 11 above, Oracle America owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform.

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 copyrighted Java API packages (available at http://download-llnw.oracle.com/javase/1.5.0/- 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. [empahsis added]

So at different times Oracle talks about infringement of the Java platform versus infringement of select components of the Java platform. More recently the Oracle arguments have become more limited focusing on the 37 API specifications (not code) and the limited number of lines of directly copied code. And yet Oracle at times persists in trying to paint the picture of damages as being the entire Java platform. Whatever. The parties, and particularly Oracle, per the judge's order are going to have to settle on what has been copied and limit its infringement and damages assertions to those items.

What comes out of the judge's recent order, though, are two things. When determining "substantial similarity" what is Oracle comparing. The entire Java platform? Each separate API? It would seem the only thing they can prove is the latter. However, the more and more fine grained the degree of alleged infringement, i.e., the lower in the platform structure one goes (Java platform -> Java class libraries -> Java API specifications) the greater the likelihood that what is encompassed by the infringement allegation is beyond the scope of copyright protection, i.e., functional in nature or subject to the merger of idea and expression. So the judge is trying to clarify this.

However, there is another place we see the words "work as a whole" used in the licensing of software, and that is in the GPL version 2, the very license that Sun applied and Oracle now applies to the Java programming language. Why is this important. Let's take a look at selected sections of GPLv2:

2. You may modify your copy or copies of the Program or any portion of it, thus forming a work based on the Program, and copy and distribute such modifications or work under the terms of Section 1 above, provided that you also meet all of these conditions:

a) You must cause the modified files to carry prominent notices stating that you changed the files and the date of any change.

b) You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

c) If the modified program normally reads commands interactively when run, you must cause it, when started running for such interactive use in the most ordinary way, to print or display an announcement including an appropriate copyright notice and a notice that there is no warranty (or else, saying that you provide a warranty) and that users may redistribute the program under these conditions, and telling the user how to view a copy of this License. (Exception: if the Program itself is interactive but does not normally print such an announcement, your work based on the Program is not required to print an announcement.)

These requirements apply to the modified work as a whole. If identifiable sections of that work are not derived from the Program, and can be reasonably considered independent and separate works in themselves, then this License, and its terms, do not apply to those sections when you distribute them as separate works. But when you distribute the same sections as part of a whole which is a work based on the Program, the distribution of the whole must be on the terms of this License, whose permissions for other licensees extend to the entire whole, and thus to each and every part regardless of who wrote it.

Thus, it is not the intent of this section to claim rights or contest your rights to work written entirely by you; rather, the intent is to exercise the right to control the distribution of derivative or collective works based on the Program.

In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

c) Accompany it with the information you received as to the offer to distribute corresponding source code. (This alternative is allowed only for noncommercial distribution and only if you received the program in object code or executable form with such an offer, in accord with Subsection b above.)

The source code for a work means the preferred form of the work for making modifications to it. For an executable work, complete source code means all the source code for all modules it contains, plus any associated interface definition files, plus the scripts used to control compilation and installation of the executable. However, as a special exception, the source code distributed need not include anything that is normally distributed (in either source or binary form) with the major components (compiler, kernel, and so on) of the operating system on which the executable runs, unless that component itself accompanies the executable.

If distribution of executable or object code is made by offering access to copy from a designated place, then offering equivalent access to copy the source code from the same place counts as distribution of the source code, even though third parties are not compelled to copy the source along with the object code.

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

So the question is, given that the Java programming language is licensed under GPLv2, are the APIs and associated class libraries necessary to make programs run in the Java language "associated interface definition files?" If so, one could argue that those 37 APIs are a part of the "work as a whole" (the Java programming language) and, thus, also subject to the GPLv2. Interesting.

The briefs are due Sunday, and it will be interesting to see how Oracle dances around all of this.


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

Docket

04/20/2012 - 946 - ORDER GRANTING STIPULATED STATEMENT by Hon. William Alsup granting 945 Stipulation.(whalc1, COURT STAFF) (Filed on 4/20/2012) (Entered: 04/20/2012)

04/20/2012 - 947 - Minute Entry: Jury Trial held on 4/20/2012 before William Alsup (Date Filed: 4/20/2012). Witnesses called. Further Jury Trial 4/23/2012 7:30 AM. (Court Reporter Kathy Sullivan; Debra Pas.) (dt, COURT STAFF) (Date Filed: 4/20/2012) (Entered: 04/20/2012)

04/20/2012 - 948 - ORDER RE ADDITIONAL ISSUES FOR SECOND BRIEF DUE SUNDAY. Signed by Judge Alsup on April 20, 2012. (whalc1, COURT STAFF) (Filed on 4/20/2012) (Entered: 04/20/2012)

04/20/2012 – 949 - Transcript of Proceedings held on 4/18/20, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, OfficialReporters, Telephone number 415-794-6659 Katherine_Sullivan@cand.uscourts.gov. 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 5/11/2012. Redacted Transcript Deadline set for 5/21/2012. Release of Transcript Restriction set for 7/19/2012. (Sullivan, Katherine) (Filed on 4/20/2012) (Entered: 04/20/2012)

04/20/2012 – 950 - Transcript of Proceedings held on 4/19/12, before Judge William H. Alsup. Court Reporter/Transcriber Katherine Powell Sullivan and Debra L. Pas, OfficialReporters,Telephone number 415-794-6659/ Katherine_Sullivan@cand.uscourts.gov. 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 5/11/2012. Redacted Transcript Deadline set for 5/21/2012. Release of Transcript Restriction set for 7/19/2012. (Sullivan, Katherine) (Filed on 4/20/2012) (Entered: 04/20/2012)


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

946

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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

CASE NO. CV 10-03561 WHA

STIPULATION AND [PROPOSED]
ORDER REGARDING SELECTION,
ARRANGEMENT AND STRUCTURE

Judge: Honorable William H. Alsup


STIPULATION

WHEREAS, the parties have met and conferred and have reached agreement regarding a statement that Google made in a brief to the Court regarding substantial similarity of the selection, arrangement and structure of API elements in the 37 accused API packages;

NOW THEREFORE THE PARTIES HEREBY STIPULATE AND AGREE as follows:

1. The following statement shall be read to the jury on the same terms as the other statements in the Court’s Order Granting in Part Oracle’s Motion to Deem Issues Undisputed and Denying Relief Regarding Statement to Jury (ECF No. 938):

For the 37 accused API packages, Android and Java 2 SE Version 5.0 have substantially the same selection, arrangement and structure of API elements.
2. This stipulation is made without prejudice to Oracle arguing that the selection, arrangement and structure of the 37 API packages are virtually identical between Android and Java 2 SE.

3. This stipulation is made without prejudice to Google arguing that the 37 accused API packages in Android and Java 2 SE are only a small portion of the Android and Java platforms, respectively, as a whole.

ORDER

The foregoing stipulation is approved, and IT IS SO ORDERED.

Date: April 20, 2012

/s/William Alsup
Honorable William H. Alsup
Judge of the United States District Court

1



948

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

ORDER RE ADDITIONAL
ISSUES FOR SECOND BRIEF
DUE SUNDAY

In addition to all other issues raised this morning (definition of “class libraries” for example), please address the following in the second brief due Sunday.

1. What case law or other authority is there that states the judge must identify the “work as a whole” (for similarity, fair use, and de minimis) for the jury? Quote the entire relevant paragraphs. Which party has the burden to identify the “entire work”?

2. With respect to what segment of the “work” can stand alone within the meaning of Hustler v. Moral, 796 F.2d 1148, 1155 (9th Cir. 1986), the Court wishes to know whether the implementation of the 37 API packages inherit, call upon, invoke, or incorporate any method, field, or class outside the 37.

3. Why shouldn’t we let the jury decide what the “work as a whole” is?

4. Is the “work as a whole” the same for purposes of “substantial similarity (or virtually identical)”, “fair use,” and “de minimis copying? If not, how are the “works as a whole” to be found for these purposes?


5. For purposes of identifying the “work as a whole,” should Oracle be held to the copyrighted work identified in the operative complaint? Quote key case law.

6. If the SSO and declarations are held to be protected elements, then why are there still issues of access and similarity for purposes of infringement (excluding de minimis and fair use)? Put another way, isn’t substantial similarity only an issue if there isn’t admission of factual copying of protectable elements?

IT IS SO ORDERED.

Dated: April 20, 2012.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

2



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