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Oracle v. Google - Copyright Infringement Assertions and Trial Dates |
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Thursday, April 05 2012 @ 08:35 AM EDT
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The Court and the parties are now moving into final trial preparations. A conference call was held yesterday ( [PDF; Text]). One of the items covered on the call was the trial schedule, which is now firmed up. The trial will now commence on April 16, and the Court has specified the other days that will initially be allocated to the trial (see listing below; also the judge's schedule is here).
What else the Court and the parties discussed on that call we do not know because an order issuing from that call has been sealed. (Dkt. 857)
The Court did issue an order (854 [PDF; Text]) with respect to the copyright issues seeking to clarify what does and does not stand accused of copyright infringement. The Court wishes to provide this information to the jury following the respective opening statements of the parties at the commencement of Phase I (copyright infringement liability) of the trial. The Court has asked the parties to confer and critique the following list:
What stands accused are:
- The 12 Android files of source code (copied from 11 Java files), including
rangeCheck. Please identify which files only contained copied English comments
that were not compiled. Please identify which files were part of the 37 API
implementation.
- Plain English descriptions in the user manual, sometimes called the API
“specifications” (right column). Please identify the number of lines of such items.
- The 37 APIs but only as to their specific selection, structure, and organization,
it being conceded that the implementing code is different. Please identify the
media of fixation for the selection, structure, and organization.
- Android’s entire source code and object code as derivative works of the 37 Java
APIs.
What is not accused:
- Android’s use of the Java programming language (other than any direct copying
of source code).
- The titles and names of APIs, including all package and class names and
definitions, fields, methods and method signatures (names in the left column of
specifications).
- The idea of APIs.
- The Dalvik virtual machine.
One thing I note on that list is the exception of the Java language source code from things not accused. If the Java language is available under the GNU General Public License, then that source code should not be excepted in this instance.
Here are the dates presently reserved for the trial: Week One
4/17/2012 (Tuesday)
4/18/2012
4/19/2012
4/20/2012
Week Two
4/23/2012
4/24/2012
4/25/2012
4/26/2012
4/27/2012
Week Three
4/30/2012
5/1/2012
5/2/2012
5/3/2012
5/4/2012
Week Four
5/7/2012
5/8/2012
5/9/2012
5/10/2012
5/11/2012
Week Five
5/14/2012
5/15/2012
5/16/2012
5/17/2012
5/18/2012
Week Six
5/21/2012
5/22/2012
5/23/2012
5/24/2012
5/25/2012
Week Seven
5/28/2012
5/29/2012
5/30/2012
5/31/2012
6/1/2012
We note that the Court has scheduled a session on Memorial Day, a federal holiday (5/28/2012). Also, the Court has only scheduled seven weeks for the trial instead of the originally anticipated eight weeks.
**************
Docket
04/04/2012 - 854 - REQUEST
FOR STATEMENT OF ISSUES RE COPYRIGHT. Signed by Judge Alsup on April 4,
2012. (whalc1, COURT STAFF) (Filed on 4/4/2012) (Entered: 04/04/2012)
04/04/2012 - 855 - Letter
from John L. Cooper to Judge Alsup regarding Dr. Kearl. (Cooper, John)
(Filed on 4/4/2012) (Entered: 04/04/2012)
04/04/2012 - 856 - ORDER SETTING TELEPHONE CONFERENCE FOR 3:00 APRIL 4,
2012. Signed by Judge William Alsup on 4/4/2012. (whasec, COURT STAFF)
(Filed on 4/4/2012) (Entered: 04/04/2012)
04/04/2012 - TELEPHONE CONFERENCE FOR 3:00 P.M. ON 4/3/2012. Signed by
Judge William Alsup on 4/4/2012. (whasec, COURT STAFF) (Filed on
4/4/2012) (Entered: 04/04/2012)
04/04/2012 - Set/Reset Hearings: Jury Trial set for 4/17/2012 4/18/2012
4/19/2012 07 4/20/2012 4/23/2012 4/24/2012 4/25/2012 4/26/2012 4/27/2012
4/30/2012 5/1/2012 5/2/2012 5/3/2012 5/4/2012 5/7/2012 5/8/2012 5/9/2012
5/10/2012 5/11/2012 5/14/2012 5/15/2012 5/16/2012 5/17/2012 5/18/2012
5/21/2012 5/22/2012 5/23/2012 5/24/2012 5/25/2012 5/28/2012 5/29/2012
5/30/2012 6/1/2012 07:30 AM before Hon. William Alsup. (dt, COURT STAFF)
(Filed on 4/4/2012) . (Entered: 04/04/2012)
04/04/2012 - Set/Reset Hearings: Jury Trial set for 5/31/2012 07:30 AM
in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup.
(dt, COURT STAFF) (Filed on 4/4/2012). (Entered: 04/04/2012)
04/04/2012 - 857 - ORDER Regarding Telephone Call. Signed by Judge
William Alsup on 4/4/2012. FILED UNDER SEAL.(wsn, COURT STAFF) (Filed on
4/4/2012) (Entered: 04/04/2012)
**************
Documents
854
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
No. C 10-03561 WHA
REQUEST FOR STATEMENT
OF ISSUES RE COPYRIGHT
In connection with the opening statements (and eventually the special verdict form at the
end of Phase One), the Court will want the jury to be clearly told what specifically stands
accused of copyright infringement (and what is not accused). The Court is considering making
its own statement to the jury in this regard after the opening statements so as to frame for the
jury the Phase One issues in play. To do so, the Court asks counsel to meet and confer and to
revise the following summary. The summary of what the Court understands is as follows:
What stands accused are:
- The 12 Android files of source code (copied from 11 Java files), including
rangeCheck. Please identify which files only contained copied English comments
that were not compiled. Please identify which files were part of the 37 API
implementation.
- Plain English descriptions in the user manual, sometimes called the API
“specifications” (right column). Please identify the number of lines of such items.
- The 37 APIs but only as to their specific selection, structure, and organization,
it being conceded that the implementing code is different. Please identify the
media of fixation for the selection, structure, and organization.
- Android’s entire source code and object code as derivative works of the 37 Java
APIs.
What is not accused:
- Android’s use of the Java programming language (other than any direct copying
of source code).
- The titles and names of APIs, including all package and class names and
definitions, fields, methods and method signatures (names in the left column of
specifications).
- The idea of APIs.
- The Dalvik virtual machine.
Counsel should at least be able to agree on how we will describe the items in play in
Phase One. By THURSDAY, APRIL 12 AT NOON, both sides shall please file a statement along
the lines of the above with appropriate revisions.
The Court will not rule on the copyrightability issues until all of the Phase One evidence
is in the trial record and counsel are reminded again of the need to place in the record all
evidence on which they will rely for their respective positions, both as to copyrightability and
infringement and defenses. Before Phase One closing argument, the Court will decide whether
to ask for an advisory verdict on issues. (As already clear, damages evidence, including
copyright damages evidence, will be reserved to Phase Three).
IT IS SO ORDERED.
Dated: April 4, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
2
855
FARELLA BRAIN + MARTEL LLP [letterhead]
April 4, 2012
The Honorable William H. Alsup
United States District Judge
U.S. District Court
Northern District of California
450 Golden Gate Avenue
Courtroom 9, 19th Floor
San Francisco, CA 94102
Re: Oracle America, Inc. v. Google Inc., No. 3:10-CV-03561-WHA (N.D. Cal.)
Dear Judge Alsup:
I write on behalf of Rule 706 expert Dr. James R. Kearl to address the scheduling issue of
the amount of time to be allocated in trial to his direct examination. At the hearing on March 28,
2012, the Court indicated that as much as two hours could be allocated to the direct examination
of Dr. Kearl, which time would not be counted against trial time allocated to either party. (See
transcript pages 142 — 143.) I have consulted with Daniel Purcell, counsel for Google, and
Steven Holtzman, counsel for Oracle, who have indicated that they have no objection to two
hours being allocated to direct examination of Dr. Kearl provided his direct examination is not
charged against the trial time of either party. Accordingly, Dr. Kearl requests that he be
allocated two hours for his direct examination at trial.
Sincerely yours,
/s/ John L. Cooper
John L. Cooper
856
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.
No. C 10-03561 WHA
ORDER SETTING
TELEPHONE CONFERENCE
The undersigned judge will have a telephone conference with counsel at 3:00 P.M.
TODAY. Please call 415-522-3684 beforehand to leave your telephone number to be contacted.
Only one representative per side is required.
IT IS SO ORDERED.
Dated: April 4, 2012.
/s/ William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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Authored by: Kilz on Thursday, April 05 2012 @ 08:55 AM EDT |
Please mention the mistake in the title of your post. [ Reply to This | # ]
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Authored by: Kilz on Thursday, April 05 2012 @ 08:56 AM EDT |
For all posts that are not on topic. Please make all links
clickable.[ Reply to This | # ]
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Authored by: Kilz on Thursday, April 05 2012 @ 08:57 AM EDT |
Please mention the news story's name in the title of the top
post. Please make all links clickable.[ Reply to This | # ]
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Authored by: Kilz on Thursday, April 05 2012 @ 08:59 AM EDT |
Please post all transcriptions of Comes exhibits here for PJ
to find. Please post them as HTML as Plain Old Text for easy
copying.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 09:23 AM EDT |
"If the Java language is available under the GNU General Public
License"
What do you mean by this? The GPL is meant for code (i.e. something that is
formulated in a language), not for a language (i.e. the syntax and semantics
specified by a language specification).
Still don't get why they talk about 37 APIs. Java have one standard API. It is
grouped into several packages (or namespaces), which I assume is what they mean
when they say APIs. But why confuse APIs with packages?[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 09:34 AM EDT |
Lets see what I'll get right:
* The 12 Android files of source code (copied from 11 Java files),
including rangeCheck. Please identify which files only contained copied English
comments that were not compiled. Please identify which files were part of the 37
API implementation.
Guilty, but already removed. Minimal damage.
* Plain English descriptions in the user manual, sometimes called the
API “specifications” (right column). Please identify the number of lines of such
items.
Not Guilty: Android came from Apache Harmoney, whose lisence allows pretty much
any copying you care to think of.
* The 37 APIs but only as to their specific selection, structure, and
organization, it being conceded that the implementing code is different. Please
identify the media of fixation for the selection, structure, and organization.
Not Guilty: Copyright issue. See Apache Harmoney's lisence.
* Android’s entire source code and object code as derivative works of
the 37 Java APIs.
Not Guilty: Copyright issue. Again, see Apache Harmoney's lisence.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 09:49 AM EDT |
"What is not accused:"
The titles and names of APIs, including
all package and class names and definitions, fields, methods and method
signatures (names in the left column of specifications).
And it is
stipulated that the implementations of the API's are different. So, once you
have excluded package and class names and definitions, fields, methods and
method signatures, and all the non-copied implementation, ...what is left on
which to hang a case? The concept that Math.abs() denotes the absolute
value function, rather than, say, denoting the square root?
Oracle is
going to trial with this? They must have tremendous confidence in their
lead counsel's ability to persuade a jury. [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 10:23 AM EDT |
The last two points that are accused have me confused a bit. Especially the last
one.
- Android’s entire source code and object code as derivative works of the 37
Java APIs.
Is that something that a jury can decide? Shouldn't it first be clear whether
source code can actually be a derivative work of an API?
If it can be then I guess a jury can look at the evidence (API and source code)
and with the help of some experts decide how much and what really is
infringing.
But does the jury also get to decide whether an implementation or usage of an
API is actually an derived work under copyright law? Personally I thought that
is absurd and cannot be, but apparently if this question is put before a jury
this is something that is in doubt?
That seems a pretty hard question to ask of a jury, which I assumed are not
trained legal copyright professionals.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 10:44 AM EDT |
Accused: Plain English descriptions in the user manual, sometimes called the API
“specifications"
I seem to recall asking if that was all that Oracle had..
I've observed that Oracle has been flip/flopping around API/API Specification
and generally being woolly about which bit it's referring to. This calls it
out.
API != API Specification != API specification.
(Abstract Interface) !=
(Compilation of Unprotected elements) !=
(Wordy Description of [one] Unprotected element).
Judge A also asked both parties to state which parts of the APIs in question
where 'integral' to the Language
(that is the 'structure,selection and arrangement' of those APIs)
Oracle hedged, and said "they're integral to the platform, but not the
language" which is a bare faced lie that is demonstrably false.
Goggle said less than half, and the rest are based on standard industry
practices.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 11:05 AM EDT |
"Android’s entire source code and object code as derivative works of the 37
Java APIs."
Wow! I downloaded the Android source once. If I recall
correctly, it was about 1.7 GB. All I have to say is that
those 37 API's must be really something to think that Google
could derive all of the Android source from them.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 11:21 AM EDT |
The 37 APIs but only as to their specific
selection, structure, and
organization, it being conceded
that the implementing code is different. Please
identify the
media of fixation for the selection, structure, and
organization.
Hopefully Google will inform this judge about Java's
lack
of named
parameters! That means position in the API is
fixed and
can not change unless the API is changed. If the language
does
support named parameters then these are equivalent API
calls:
what2wear('red', 'dress','everyday')
what2wear(color='red',
clothes='dress', day='everyday')
what2wear(day='everyday', color='red',
clothes='dress')
But the last call would not work correctly for
Java (I
gave
up Java a very long time ago so I don't remember what
works).
That
means that there can be only one way to call a Java
API. Also for
any language saying what2wear('everyday',
'red', 'dress') would be
incorrect.
Alternatively, while there is creativity in generating
the API,
the subsequent selection, structure, and
organization are facts
(if that is the correct
terminology here) because there is only one way to
describe
a specific Java API. Consequently, reverse engineering such
as
using
a decompiler of Java
programs easily identifies the selection,
structure, and organization of
API calls with the same
parameters. Here Java's lack of named parameters means
that
all API
calls to the same function with the same arguments are
exactly
the same. This should make selection,
structure, and organization of an
API trivially
discoverable and, thus, unprotectable unless reverse
engineering
of Java software is illegal. Note that different
arguments
submitted to the
same
function are handled by
method
overloading, which to me means that there is a
different API for each
situation implemented. [ Reply to This | # ]
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- Not quite - Authored by: Anonymous on Thursday, April 05 2012 @ 12:24 PM EDT
- Wha??? - Authored by: Anonymous on Thursday, April 05 2012 @ 02:10 PM EDT
- Wha??? - Authored by: Anonymous on Thursday, April 05 2012 @ 03:35 PM EDT
- Wha??? - Authored by: Anonymous on Friday, April 06 2012 @ 05:00 AM EDT
- Wha??? - Authored by: Anonymous on Friday, April 06 2012 @ 08:15 PM EDT
- Not quite - Authored by: red floyd on Thursday, April 05 2012 @ 02:57 PM EDT
- Not quite - Authored by: Anonymous on Thursday, April 05 2012 @ 04:27 PM EDT
- Java's answer to named parameters - Authored by: Anonymous on Thursday, April 05 2012 @ 04:09 PM EDT
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Authored by: Anonymous on Thursday, April 05 2012 @ 11:34 AM EDT |
"Please identify the media of fixation for the selection,
structure, and organization."
Oracle has been dancing around the question of what exactly
is "the API" - the spec or the implementation or some
abstraction?
The API is only copyrightable if Sun/Oracle wrote it down.
But Oracle says they are not suing over the spec, and Google
says they didn't copy the implementation. It seems Oracle
is trying to claim copyright on an abstraction, independent
of any particular expression. This is like claiming
copyright on the plot of a novel.
In practice, you can show copying of a novel (protected
expression) by showing extreme similarity of plot
(abstraction). But that's just evidence that somebody
copied (and modified) the novel itself, which is all that
copyright law protects. The plot is too abstract to be
copyrightable.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 12:09 PM EDT |
The copyright stuff is google's to lose. Not that they couldn't lose it, but
still, let me imagine that they do a really good job...
I can see it now. After three weeks of back and forth with Oracle's lawyers
doing their dance, the judge will direct the jury that no reasonable man could
find that google infringed, so on this matter they are to find for google, and
oh, BTW, now they get to sit there and hear these same petulant greedy shysters
whine for another three weeks about patents.
[ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 12:48 PM EDT |
So since Google is accused of infringing the "Plain English
descriptions in the user manual, sometimes called the API
“specifications...", I guess many of the 350 Java Programming
books in Google Play are also infringing?[ Reply to This | # ]
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Authored by: RMAC9.5 on Thursday, April 05 2012 @ 02:43 PM EDT |
In a previous thread I suggested that Judge Alsup did not understand Google's
"APIs are functional" argument because he studied mathematics, instead of
programing, as an undergraduate. I mentioned that no matter how difficult,
creative, or elegant a mathematical proof was, it was not copyrightable and
that a respected, well known, programer like Linus should tell him that computer
programers/programs "exchange information" like mathematicians do.
Before making this claim, I did a "copyright mathematics" Google search to
verify that it was true and learned that mathematical formulas, proofs, etc. are
not copyrightable because it is impossible to separate the idea from its
expression (i.e the idea-expression divide). Can we programmers argue that,
like a mathematical proof, it is impossible to separate the API from its
function? [ Reply to This | # ]
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Authored by: Anonymous on Thursday, April 05 2012 @ 04:51 PM EDT |
It's pleasing to see the number of posts on this page expressing
surprise that Oracle is persisting in its erroneous postulate that
an API and its specification can be freely interchanged in legal
discourse. Right from the start I figured that Oracle
1. did not know the difference, and thus should be beaten
about the head with a cluestick; or
2. did know the difference and was deliberately confusing
the Court, and thus should be beaten about the head with
something more punitive.
And now the Perry Mason moment: Google walks into court and says,
"No, we did not copy Oracle's APIs or the specifications.
"We copied them from Apache Harmony. If Oracle thinks
"Harmony copied Oracle's APIs, Oracle should sue Harmony"
Of course that last sentence would never need to be said,
because it would be obviously implicit, and because Google
would never dob in another open source project like that.
Google don't even need to have this Perry Mason moment,
because it's a matter of Public Record, so this lawsuit must
owe its existence to Oracle's desire to sue Google as a
proxy for Harmony. In spite of the laches, estoppel, exhaustion
and implicit licenses.[ Reply to This | # ]
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Authored by: jjon on Thursday, April 05 2012 @ 05:14 PM EDT |
One thing I note on that list is the exception
of the Java language
source code from things not accused. If
the Java language is available under
the GNU General Public
License, then that source code should not be excepted in
this instance.
I don't think it works like that. The US Court
of
Appeals for the Federal Circuit has upheld an open source
license, and ruled that
"Copyright holders
who engage in open source licensing have the right to
control the modification and distribution of copyrighted
material". The
GPL
includes conditions that you must credit the original
author when copying the
work, and include the GPL license
blurb. So if Google copied some GPL'd Sun
code without
copying the
attribution, then they can be found liable for
that.
Alternatively, if Google copied from the proprietary Java
source
code before it was GPL'd, then they could be liable
for damages for the period
before Java was GPL'd. And of
course the
GPL notices wouldn't be there so
they would also be liable
for damages for the period after Java was
GPL'd.
(For the record, my understanding is that the only
literal
copying is of some test files, so the damages should
be tiny - I hope less than
$100k. And of course, Oracle's
API theory is
completely bonkers and I
hope they get ground into the dust
on that one.
[ Reply to This | # ]
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Authored by: jbb on Friday, April 06 2012 @ 06:25 AM EDT |
Oracle said:
... an application programmer does not need a license
to the APIs from Oracle to author and distribute a program in the Java
programming language (even if it includes calls to the APIs),
...
Why doesn't an application programmer need a license in order
to use the Java APIs? Isn't an application program that uses the APIs a
derivative work of those APIs? Doesn't it make use of exactly the same
information you are suing Google for using?
Are you claiming that the use of
APIs in an application is always fair use? Have you already given an explicit
(or implicit) license to application programmers which allows them to use your
copyrighted APIs?
What about clean room implementations? Why has the
software industry been using clean room implementations to avoid copyright
violations if, according to your theory, a clean room implementation would still
violate copyright?
What about a translation program? What if Google
decides it doesn't want to use your APIs anymore. Would it be legal for them to
write a translation program that converts your API calls (in application source
code) into Google's new API calls? It seems that such a translation program
would help Google to stop violating your copyright. But on one hand, if such a
translation program were legal to use then it would mean your copyright on the
APIs would be meaningless because the translation program could be added to
Google's build chain and you have already admitted that the application programs
are free to use your APIs without a license.
On the other hand, if such
translations were not legal without your blessing then copyright protection of
your APIs would give you a state sponsored monopoly over not just the APIs and
every reimplementation of those APIs but also over the running of every single
program ever written in Java.
--- Shirky Principle: Institutions
will try to preserve the problem to which they are the solution. [ Reply to This | # ]
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Authored by: Anonymous on Friday, April 06 2012 @ 08:22 AM EDT |
If anyone can write a Java program according to Oracle, then only the JVM and
infringing libraries should be considered a derived work. Much of Android is C
code, as well as Java programs. If all of Android is considered infringing, then
any Java program would be considered infringing.[ Reply to This | # ]
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Authored by: Anonymous on Friday, April 06 2012 @ 12:01 PM EDT |
by Pamela Samuelson
"As the Court in Baker warned more than a century and a
quarter ago, courts should be careful to ensure that
copyright protection for functional writings is not used to
get patent-like protection for technical innovations that
might qualify for, but have not met, patent standards."
This is a must read it really clears everything up. Baker vs
Selden pretty much lays the basic groundwork as to what the
limitations of copyright are and why.
It is interesting to note that in the 60s and 70s it was
common understanding that computer programs should not be
copyrightable at all, which makes a lot of sense if you read
the background logic in Baker. The essence of the matter is,
if you want protection for your functional immaterial goods
then you must go thru the proper process of applying for a
patent protection, which is significantly more stringent of
a process and it also costs more. But it is the proper way
which the law requires for many good reasons.
What Oracle is trying to do is get patent level protection
for their API specification without going thru the proper
process and invest the money and time that this requires as
codified by patent law.
If Googles defense drives this point home to the jury, I
think even very common people on a jury will understand
quickly what this is all about and rule against Oracle for
trying to break the rules by gaming the copyright system to
get around the far more costly and risky patent
applications to protect their API. [ Reply to This | # ]
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Authored by: RMAC9.5 on Friday, April 06 2012 @ 12:44 PM EDT |
As a graybeard application programmer for 35+ years, I have seen application
programs "exchange information" in many novel and creative ways and
believe that API "creativity" is limited only by the imagination of their
creators. However, none of this "creativity" negates the fundamental fact or
axiom that APIs are always 100% functional. Perhaps, the best way
to explain this to Judge Alsup is to point out that APIs also control how
application programs "exchange information" with humans! David
Orenstein, in a Computerworld article from a dozen years ago QuickStudy: Application Programming Interface (API), does a very nice
job of explaining APIs in "plain English" and even hints at the concept of
"Human APIs" when he begins his article with "You often have to rely
on others to perform functions that you may not be able or permitted to do by
yourself, such as opening a bank safety deposit box." [ Reply to This | # ]
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