Attorneys for Oracle and Google spent their weekend drafting briefs for Judge William Alsup about whether or not the 37 Android APIs at issue in Oracle's patent and copyright infringement lawsuit against Google qualify for copyright protection.
The judge on Thursday asked the two sides to submit arguments on the matter and said he and not the jury will decide on the issue of API copyrightability. This improves Google's position: Trusting the decision to the jury, a group without deep technical or legal expertise, would be more of a gamble.
But not everything went Google's way: Oracle said in a separate filing that it had received notification from the U.S. Patent and Trademark Office that a patent previously deemed invalid has been accepted. This allows Oracle to assert infringement on three of its patents instead of two. Google can still challenge the revived patent, and that's almost certain to happen. The patent claims will be decided at a later stage in the trial, which is scheduled to continue into June.
In court on Monday, Bob Lee, currently CTO of Square and a former Android engineer, testified. Oracle expert witness John C. Mitchell, a Stanford University computer science professor, continued the ongoing discussion of APIs, to the dismay of the jury. Google's head of Android, Andy Rubin, spoke briefly, until time ran out. He is expected to return to continue his testimony on Tuesday, along with Google executive chairman Eric Schmidt.
[ Do you understand APIs? Can a jury understand APIs? Read Oracle, Google Struggle To Explain APIs To Jury. ]
In its April 22 copyright liability brief, Google attacks the core of Oracle's copyright claim. Oracle, unsurprisingly, defends its claim in its own filing.
Both Google and Oracle acknowledge that the structure, sequence, and organization of APIs could be a part of a valid patent claim, but are not in and of themselves patent-eligible subject matter: processes, machines, manufactured items, and arrangements of things.
Google argues that the structure, sequence, and organization of APIs cannot be the exclusive test for a copyright claim.
As a thought experiment, Google's lawyers propose that Google could create a set of APIs identical in structure, sequence, and organization to the APIs claimed by Oracle but that did different things. For example, a variant of a Java calculation method could ignore input values and always returns zero.
Based on this, Google's filing asserts, "The true premise of Oracle's claim is that the Google APIs do the same thing that the Oracle APIs do--that the Google APIs perform the same functions as the Oracle APIs."
Copyright claims don't cover the functional nature of a work, as patents do. They cover the fixed form of a work.
Google's filing also argues that Oracle's copyright must cover the work as a whole, the Java platform, rather than excerpted portions of it.
Oracle asserts that the Java platform as a whole is not the copyrighted work. "The separate creations in J2SE are the copyrighted works at issue, not the entire platform," Oracle's filing states. With a smaller work at issue, Google's alleged infringement becomes much larger.
If the court accepts Google's position, Google will be better able to assert fair use as a defense against Oracle's copyright claim.
One of the tests to qualify for fair use is the amount of the work that has been copied--copying only a small portion of a work tends to be seen as fair use. Under the definition that Google proposes, the overlap between Android and Java is trivial when compared to the 15 million lines of code that constitute the Java platform.
The amount of code at issue becomes smaller still with the exclusion of those aspects of the APIs that are functional and necessary for compatibility, Google's filing argues.
"[A]ny alternative implementations of these methods and field (and packages) must replicate that specific grouping in order to be compatible with the original implementation," the filing says.
The two sides agree that the 37 APIs include external references but disagree on the significance of that. Presumably such linkage could weaken the the copyrightability of the Java APIs by blurring the boundaries that define the copyrighted work.
Google states flatly that, "The implementations of the Sun compiled lines in the 37 APIs are not self-contained."
After noting that six of the 37 APIs reference the external package java.math, Oracle's filing states, "The APIs that Android copied are well-contained."
It's either one or the other.
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