It seems to me that Oracle keeps conflating "the ideas that
constitute
APIs" with "the documentation that constitutes fixed descriptions
of
those ideas".
That's exactly what they're doing. Their
problem is that "API" is an abstract concept. In order to claim copyright
protection, they must point to a medium in which it is fixed. That is why they
cleverly mix up "API" with "API documentation" and "class
libraries".
Their strategy seems to be to present the jury
with:
a) lots of almost identical comments in the documentation
b)
some lines of actually copied code (rangeCheck() and the 12 inadvertantly copied
files)
This way they convince the jury that copying actually took place. But
b) is de minimis and a) is unlikely to be infringement for various reasons. But
even if they are both infringing, they do not give rise to damages, because the
b) files are worthless and the a) comments are not part of the finished product
(the compiler discards the comments).
So what Oracle needs is something that
"generates" the damages. That's where the APIs and the related fragmentation
issue comes in. The infringed APIs and the fragmentation lead to damages and the
possibility of an injunction against Android (their major bargaining chip). But
the APIs, as mentioned above, are abstract and not tangible, so cannot be
infringed in their abstract form. That's why Oracle's lawyers combine these 2
issues with a lot of handwaving and confusion.
So the formula Oracle's
trying to apply is:
(Possibly) infringing conduct without
damages
PLUS
non-infringing conduct with "damages" (from
legitimate competition)
EQUALS
The appearance of infringing
conduct with damages. [ Reply to This | Parent | # ]
| 
