| IANAL, but I think I have done enough (software) contract
lawyering to know
what is going on here.
I think you guys are missing how this works out in
this
case. Oracle has charged Google with direct copying of a
small amount
of code. (Timsort) We already learned that
this was submitted by someone at
Google to Sun, and they
included range check code called by the current (Sun)
sort,
so that it would be clear that they were identical.
Why do this?
If timsort was integrated into Sun's
implementation of Java, there would be
places where the
range check was already done, and the second check could be
omitted. If the code wasn't identical, it would make work
for someone on the
integration team at Sun.
Later timsort was used in Dalvik code on the
Android phone.
Now Google is laying the groundwork to point out to the
jury,
that the Java copyright did not apply to contributions
written by others, so it
is perfectly fine for Google to use
code that Google submitted to Sun. (For
example, if the
work at Google was a work for hire, that would not be
true.)
Now here is where things get really, really, messy for
Oracle.
They have very little time left to present their
case, and suddenly they have
to try to get before the jury
evidence that the 37 packages were original Sun
work. Can
they? No. There are a couple that were contributed code.
Not
written by Google, but that doesn't matter. We are left
with Oracle claiming
rights that they don't have.
To take it out of the programming context,
let's say one of
your neighbors sued you because your house copied theirs.
In
particular, they paid a lot of money to an architect, and
you got your builder
to build another house from the same
plans.
So far so good. What just
happened is that it turned out
that the house you are accused of copying was
not a
completely new construct. There was a house on the site
before, and the
architect reused the foundation, the
basement, and the chimneys that were
there. More, it turned
out that your builder was the one that built the
original house (which burned down) twenty years ago.
Your lawyer has
just a few hours left to convince the jury
that the parts of "the work as a
whole" that you own are
significant and substantial, while the parts that the
architect inherited are insignificant and grant your builder
no rights in the
finished design. In other words, the
foundations of Oracle's case have been
knocked out from
under them, and lawyers may be burning the midnight oil
trying to salvage the case.
Does this mean that Oracle will lose? Not
quite, but they
are going to have to use the remaining witnesses on their
list
to build a foundation so that Bois can rebuild the case
on top of. (With no
foundation, they can't bring it up in
summation. I don't know who, if anyone,
is left on Oracle's
witness list that might provide that foundation (for at
least some of the APIs) from personal knowledge. [ Reply to This | Parent | # ]
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