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Why do I keep forgetting this? | 189 comments | Create New Account
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Why do I keep forgetting this?
Authored by: Ian Al on Sunday, August 05 2012 @ 03:12 AM EDT
Google said:
Equally, just because a software function is called frequently does not mean it is important; it would stand to reason that a trivial nine-line piece of code that accomplishes a Programming 101 parameter test, like rangeCheck does, might be invoked fairly frequently. Dr. Mitchell never opined that there is any correlation between the number of calls to a function and its significance, much less that rangeCheck itself is significant. He certainly did not say that rangeCheck offered a performance boost to Android—and Bloch, who wrote it, made clear it does not.
As dio gratia quoted in his previous comment:
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Oracle maintain that:
To evaluate the significance of the rangeCheck method to Android, Professor Mitchell experimented with an Android device and found that it called the rangeCheck method no less than 2,600 times during start up alone. He characterized that as “a pretty big number for the number of calls to this function.”. Within Arrays.java, moreover, other methods call rangeCheck 18 times.
Let's characterise rangeCheck for ourselves. Is it an idea? Check!. Is it a procedure? Check! Is it a method of operation? "To evaluate the significance of the rangeCheck method to Android, Professor Mitchell experimented with an Android device": check! Is it the concept of checking calls to a procedure for errors? Check!

Is what Oracle discusses the functionality of the code or the creative expression in the writing? "He characterized that as “a pretty big number for the number of calls to this function.”". Mitchell is saying that the number of times the functionality is used is what is important about rangeCheck. The law says that function must be protected by patent and that creative expression must be protected by copyright. Judge Alsup made that point, explicitly, during the trial. Calling rangeCheck 2,600 times is not a measure of the creativity of its expression.

Oracle's expert, Mitchell, makes another appalling error. "Within Arrays.java, moreover, other methods call rangeCheck 18 times". If I make a reference to the opening lines of Charles Dickens' book, "A Tale of Two Cities" without actually quoting the lines, have I infringed on the copyright (assuming the work was still in copyright)? I have not, because I have not copied the creative expression in those opening lines.

A call to a process that does not include the creative expression within that process code cannot, by definition, infringe on the copyright, because the creative expression is not copied. It does not matter if the reference is made 18 times, or a call is made 2,600 times.

So, the 'importance' of rangeCheck is the functionality of the code. Oracle's expert, Mitchell, maintains that the code itself only includes the creative expression of a high-school student at best and that the functionality could have been reproduced by that same student, with guidance. Mitchell never identified the newly-created, and thus protected, creative expression in the nine lines of code, not even in the '{' line or the '}' line. He did suggest in a report that the functionality was cleverer than it appeared on the surface, but he later admitted at the trial that this was not so. The functionality is irrelevant, anyway.

If no creative expression is identified in the nine lines then, by law, the creative expression has been shown either to be zero or to be de minimus.

And, finally, pj comments that 'this is all about rangeCheck'. It is also about the eight decompiled test files. Judge Alsup commented in his findings that the files never made it to the accused devices. They just appeared in the Android repositories. Google's copying was unintentional so they weren't inciting copyright infringement by others. As with rangeCheck, Mitchell does not identify the newly created expression in the eight files that is protected by copyright. The value of the files (apparently) is to functionally test certain types of java code. The functionality of the files is irrelevant to questions of copyright infringement. If no protectable creative expression is identified in the eight copied files then, by law, the creative expression has been shown either to be zero or to be de minimus.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

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