Tying up Week One loose ends. Sort of.

Oracle vs Google – Judge Alsup to decide on API copyright, patent back in trial?

Chris Mayer
Justice-Android-Oracle

Day 5 of proceedings in the trial between Oracle and Google over Java patents used Android was considerably low key by the standards set, but there were some important developments.

The first week of this monumental trial was a bit of a
whirlwind, with the figureheads at the centre of the case, Larry
Page and Larry Ellison both called to the stand. Most of the week
was set aside as a Software Development 101 class for the
non-technical jury, so they could attempt to get their heads around
the complexities within this Java patent case.

But, crucially, it is Judge Alsup who will decide the key issue
of what the trial is about – the copyrightability of APIs. Possibly
fearing that the magnitude of this case could well swing on a jury
that doesn’t fully understand every single logistic in this case
(and who can blame them), Judge Alsup has ruled that the buck will
stop with him for the first part of this three-pronged trial.

Speaking at the end of Day 4, Alsup said:

The copyrightability of the 37 APIs is my call. But I want
more briefing on it. I want you to take a firm position.

A wise decision we feel. Confusion has lingered in the
courtroom over these 37 APIs, with both sides offering differing
views, so now a new filing has emerged to outline the
selection, arrangement and structure of the 37 APIs
(Groklaw
 Text).
This should help solidify the case details for the jury and judge
somewhat. Differentiation needs to be made over APIs and code as
well, with Oracle focusing more on the APIs than the code itself.
Alsup has requested another brief on the copyright issue to clear
this matter up entirely.

On Sunday, Oracle filed a motion seeking
clarification over Apache Harmony, the now defunct open source
implementation of the Java platform, to make it clear that the
Apache licence and the Harmony project are distinctly separate
entities. Google maintain that Apache Harmony used Sun’s APIs so
this means they could also use these APIs within
Android.
 This could lead jurors to believe
Apache could distribute Java freely to others, (ie. indirectly
license Google), when this isn’t possible with Apache no longer
part of the JCP.

Groklaw made an interesting point regarding what Oracle are
claiming substantial similarity on. Code snippets? Individual APIs?
From a codebase of around 15 million lines, a few hundred are
copied say Oracle. Groklaw argues:

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.

Certainly an interesting theory, and one huge stumbling block
Oracle will have to overcome. Elsewhere though, Oracle have
received a boost with a previously rejected patent being
reconsidered. The
‘702 patent
 could well feature in the patent trial (Part 2
in this 8 week saga), but it remains unclear whether it could play
a part in proceedings after being reconsidered so late in the day.
Florian Mueller believes that the patent could indeed be asserted,
saying:

I expect Google to oppose the assertion of this patent,
but the interests of justice weigh clearly in Oracle’s favor,
especially if you consider the difference between a scenario in
which Oracle would have to drop a patent with prejudice versus one
in which Oracle gets to assert a patent that enjoys an enhanced
presumption of validity.

Friday’s action focused on similar themes as the days
previously, with Oracle claiming evidence that Google had attempted
to acquire a licence for 5 years, with Google’s retort being that
they didn’t need one, despite searching for it.

It’s become increasingly clear for onlookers that the
trial isn’t about the damages that Google may end up paying, but
the damages the wider software community may end up paying if APIs
become copyrightable. The perception across the industry is that
while APIs can be consider a fine art or craft, they shouldn’t be
copyrightable. The ramifications if Oracle win would be harshly
felt by all – everyone would lose.

Expect coverage on Week 2 right here, with Android chief Andy
Rubin expected to appear at some point in the next 7 days. The case
continues.

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