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Oracle wants another go at Google over Android Java copyrights

'You wouldn't steal a Harry Potter book...'

Oracle in the right? Not likely

Needless to say, there is more than one side to Oracle's argument. For starters, the notion that copyright protects "even a Chinese menu or jingle" is questionable. The US Copyright Office clearly states that copyright law does not protect "names, titles, short phrases or expressions," including "catchwords, catchphrases, mottoes, slogans, or short advertising expressions."

Also not protected are "listings of ingredients, as in recipes, labels, or formulas." Along those lines, Judge Alsup's original ruling found that because there was really only one way to write the declarative code of the Java APIs, the fact that Google's declarative code was identical to Oracle's was not evidence of copyright infringement.

"When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression," Judge Alsup wrote.

What's more, although software code is protected under copyright, copyright law does not grant any exclusive right to how the software operates. In the landmark Atari Games Corp. v. Nintendo of America Inc. case of 1992, the Federal Circuit Court of Appeals explicitly ruled that "the expression adopted by the programmer is the copyrightable element in a computer program, and ... the actual processes or methods embodied in the program are not within the scope of the copyright law."

To protect those processes and methods, Oracle would need to turn to patent law. But the jury in the original trial found that Google had not infringed either of the patents Oracle had asserted in the suit, leaving the question of copyright the only arrow left in Oracle's quiver.

Little wonder, then, that Oracle isn't letting go of the copyright issue without a fight, given that it had originally asked for as much as $6bn in damages for Google's alleged copyright infringement.

Oracle: 'Desperate' Google knew it had to steal or die

In the brief filed on Monday, Oracle further argues that Google's use of the Java code violates the terms of the various licenses under which Oracle offers the code – of which there are three. But all three licenses depend on copyright to give them weight. If the specific material that Google used was not protected by copyright, as Judge Alsup ruled, then the licenses carry no validity.

Nonetheless, Oracle's brief paints Google as a "desperate" company that "was fully aware" that it needed to obtain a Java license from Sun Microsystems – and later Oracle, after Oracle bought Sun – but rejected that option when it could not get approval to use a nonstandard Java implementation in Android.

Oracle claims Google faced a "grave threat" from the burgeoning mobile web, adding that "just about every smartphone carrier" at the time used Sun's Java Mobile Edition (ME) – a description of the market that conveniently ignores Apple and the iPhone.

Because it risked losing its market dominance to mobile search, Oracle contends, Google needed a mobile platform of its own, and building one "had to be done yesterday." As a result, Oracle says, Google "cherry-picked the good stuff from Java" and worked with "super shady" foreign contractors to "paraphrase" Oracle's code. The result, it says, was Android.

Mind you, Oracle gave versions of all of these arguments in the original trial, and neither the jury nor Judge Alsup bought them then. The database giant spends much of the rest of its brief arguing that this was a gross miscarriage of justice and that its own view is the correct one. We'll see whether the Appeals Court agrees.

When El Reg contacted Google for its take on the matter, the online ad-slinger declined to comment, but it is expected to file its own brief in reply to Oracle's arguments by March 28. ®

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