Original URL: http://www.theregister.co.uk/2013/02/13/oracle_android_copyright_appeal/

Oracle wants another go at Google over Android Java copyrights

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

By Neil McAllister

Posted in Law, 13th February 2013 22:08 GMT

Oracle has asked a US Federal Circuit Appeals Court to overturn an earlier decision in the database giant's billion-dollar intellectual property lawsuit against Google, with an audacious brief that compares Google's use of Java in its Android smartphone OS to an author selling counterfeit Harry Potter books.

Oracle's appeal brief, filed on Monday, argues that Judge William H. Alsup of the US District Court erred when he held that Google had not violated Oracle's copyrights by implementing its own, nonstandard version of Java in Android.

Throughout 89 pages of arguments and a 138-page addendum of court transcripts, Oracle attempts to poke holes in each of Judge Alsup's rulings while simultaneously restating its own position that Google knowingly and wilfully caused it harm.

Groklaw is carrying the full text of the appeal, and it's a doozy. Here's how it begins:

Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix – the fifth book – and proceeds to transcribe. She verbatim copies all the chapter titles – from Chapter 1 ("Dudley Demented") to Chapter 38 ("The Second War Begins"). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one ("Harry nodded."). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid's Harry Potter 5.0. The knockoff flies off the shelves.

J.K. Rowling sues for copyright infringement. Ann's defenses: "But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base."

Obviously, the defenses would fail.

Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid – and has offered the same defenses.

Oracle goes on to accuse the court of failing to grant Oracle's source code the same copyright protections that it would a novel or a symphony:

Copyright protects a short poem or even a Chinese menu or jingle. But the copied works here were vastly more original, creative, and labor-intensive. Nevertheless, the district court stripped them of all copyright protection. The court saw this software as just different ...

This notion of software exceptionalism for any code is wrong.

In his original decision, Judge Alsup found that Google had not infringed Oracle's copyrights because Google had only mimicked Oracle's APIs, rather than copying the code for them outright, and that APIs, in and of themselves, were not copyrightable.

"So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API," the judge wrote.

But Oracle's appeal argues that Google did make verbatim copies of the declarative code of the Java APIs – the lines that specify the names of objects, method calls, variables, exceptions, and other API components – and then filled in its versions of the APIs with its own, work-alike code.

According to Oracle, for Google to build its Android software that way is no different from its hypothetical Harry Potter example, in which the spurious author "Ann Droid" copies the first sentence of each paragraph and then paraphrases the rest.

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. ®