I wondered the same myself. From the jury instructions we
find:
In determining whether the use made of the work was fair,
you should
consider the following factors:
1. The purpose and
character of the use, including whether
such use is of a commercial nature, for
nonprofit
educational purposes, and whether such work is
transformative (meaning
whether Google’s use added
something new, with a further purpose or
different
character, altering the copied work with new expression,
meaning, or
message). Commercial use cuts against fair
use while transformative use supports
fair use;
2. The nature of the copyrighted work,
including whether the
work is creative (which cuts against fair use),
functional
(which supports fair use), or factual (which also supports
fair
use);
3. The amount and substantiality of the portion
used in
relation to the copyrighted work as a whole. The greater
the quantity
and quality of the work taken, the less that fair
use applies;
and
4. The effect of the use upon the potential market
for or value
of the copyrighted work. Impairment of the copyrighted
work cuts
against fair use.
In my mind at the very least,
Android/Dalvik is entirely transformative making it fair use. Of course Google
has a commercial interest and so does the public. It prevents Apple and
Microsoft from shutting Google out of a substantial portion of the internet user
base by means of patent monopolies (a term not yet considered by the legal
minds). This makes it fair use because of the public interest.
Java is a
software adapter. By definition, it needs an underlying operating system to
plug into. Android is not an adapter. It is a stand alone software paradigm
designed to lend certain functionality to a certain hardware paradigm. It is
also effectively a Java code translator. "Run your certain Java code through
our black box and it will be transformed to function with our
hardware/software." It is not reasonable or rational to expect that a law will
disallow the translation of names/syntax (computer language). [ Reply to This | Parent | # ]
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