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| Authored by: calris74 on Tuesday, May 08 2012 @ 12:09 AM EDT |
Re: Q1
This question could have been worded more
clearly.
A one word change and one word deletion would have done it.
It should have read:
"As to the compilable code for the 37 Java
API packages in question taken as a
group:
"Has Oracle proven that Google has copied the overall
structure, sequence and organization of copyrighted works?"
This
question refers to copying the structure, sequence, and
organization (that is,
non-literal copying) of the
compilable code of the implementation
of the
classes in the 37 packages. The SSO of computer programs
(that would be
the compilable code) is protectable, that of
an "API" is not (yet). The term
API is a red herring here
and should have been left out for the sake of
clarity. That
is was left in is probably grounds for appeal if there is no
mistrial on this count.
Once copying has been established, then fair
use can be
considered. If there is no fair use (or other exception to
copyright that covers the copying and is pleaded), then and
only then is there
infringement.
Also, I'm not sure how the extent of the protected work
is
determined, but it appears to me that even if the jury had
rendered a
verdict of copying and no fair use on Q1, the
decision would be appealable on
the proper extent of the
work to be compared, especially in light of the issues
with
the registration.
I respectfully disagree with your analysis
of this point...
Question 1 was about the non-compilable
component of
the API (I'm not going to call it 'code'). Judge Alsup told
the
jury to assume that they should assume that such non-
compilable components are
covered by copyright (this is a
point of law which he will decide - The jury is
there to
decide on facts)
I personally think this was a very smart
choice by the
judge. As he already explained, it was an attempt to
'appeal-proof' the trial. If he had decided as a point of
law that the SSO was
not copyrightable and it never went to
the jury, a new trial would have been
required if the appeal
was successful. The irony is, it looks like even this
safety-catch has failed.
So to use a text-book analogy...
In
question 1A, the jury is asked if Google copied the table
of contents, order of
chapters and general concept of the
chapter contents but not the literal
text of the
chapters - YES
In question 1B, the jury is
asked if such copying
constituded Fair Use - We don't know / Can't
agree
with each onther
In question 2A, the jury is asked if Google
copied the
preface of the textbook - NO
In question 3A, the
jury is asked if Google copied one
paragraph of one chapter -
YES
In question 3B, the jury is asked if Google copied one
entire chapter - NO
In question 3C, the jury is asked if Google
copied the
footnotes - NO
In question 4A, the jury is asked if
Sun/Oracle behaved in
such a manner that Google could reasonably expect they
could
copy the table of contents, chapter order and general
concept of the
chapter contents of the textbook -
YES
In question 4B, the
jury is asked if Sun/Oracle behaviour is
the reason Google decided to copy the
table contents,
chapter order
and general concept of the chapter contents of
the textbook
without buying a license - NO
So it is very clear that if
Judge Alsup decides (as a matter
of law) that the table of contents, chapter
order and
general concept of the chapter contents of the textbook is
not
covered by copyright:
- 1A (and 1B) become moot points
- 3A is
de-minimis (one ham sandwich)
- 4A becomes a moot point
Now,
Google wants a mistrial so they can get 1B and 4B
turned into YES -
Determination of fact, not law and
by my understanding, pretty much
appeal-proof. Even if judge
Alsup rules that SSO is non-copyrightable, the
verdict will
bite Google if the Oracle appeal succeed - by then, calling
a
mistrial will be too late[ Reply to This | Parent | # ]
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