Copyright

by Mike Masnick


Filed Under:
android, api, apis, chromebooks, copyright, discovery

Companies:
google, oracle



Hold On... We May Actually Be In For A THIRD Oracle/Google API Copyright Trial

from the you-wouldn't-reimplement-an-api dept

Yikes. A month ago, we wrote about how Oracle was asking Judge Alsup to agree to another new trial in the Oracle v. Google API copyright case. I joked that they basically had no chance, and Judge Alsup had already rejected their attempts to overturn the jury ruling. But... I may have spoken too soon. In a hearing on the matter earlier this week, Oracle insisted that there needed to be a new trial because Google had withheld information on plans to offer Android on Chromebooks -- something that Google announced at this year's Google IO which happened (awkward!) while the trial was going on.

And this morning, Alsup issued an order telling both sides to provide sworn statements about this. For Google, it's why it had not updated its discovery responses to include the plans for Android on Chromebooks, and for Oracle, whether it, too, had neglected to update its discovery responses (and specifically calls out a misrepresentation by Oracle):
By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google’s intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS.

By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge. The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an “evidentiary hearing” when that decision, as it turns out, made no mention of an “evidentiary hearing” and instead remanded because no “hearing” or other consideration at all had been given to the issue of discovery conduct by the district judge.
This does not mean that there absolutely will be a third trial, but it's at least more of a possibility than most observers thought possible. I honestly don't see how Android on Chromebook really matters for the fair use analysis. Oracle argues that since most of the talk on the market impact was limited to phones and tablets, that may have impacted the jury, but that's kind of laughable. The reality is that Oracle just wants another crack at a decision it disagrees with.

Of course, all of this is really a stupid side show. The real underlying problem was the Federal Circuit's decision that APIs were covered by copyright, despite almost no one actually thinking that's true. The whole fair use trial was an awkward mess, mainly because all of the arguments weren't so much about "fair use" but about whether or not anyone actually considered APIs to be covered by copyright. Going through another such trial would just be a mess.

But the other area where a new case may come about is that Judge Alsup made clear that Oracle was also free to bring new cases on new uses of Android to see if they were also fair use, meaning that any time Google does anything new with Android, it may face a new fair use trial. They wouldn't need to do this if the CAFC had just recognized that APIs are not covered by copyright, but it didn't and here we are in a big heaping mess.
By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein.
This case is never going to end.

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  • identicon
    kallethen, 19 Aug 2016 @ 1:18pm

    (with apologies to Lambchop...)

    This is the case that doesn't end
    Yes, it goes on and on my friend
    Some people started litigating it not knowing what it was
    And they'll continue litigating it forever just because... (repeat)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2016 @ 1:33pm

    At this point, why would anyone use Java or Oracle for any project?

    Seems like a lawsuit waiting to happen.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2016 @ 1:35pm

    Yep... the court system is a joke...

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 19 Aug 2016 @ 1:37pm

    No update on sanctions because Oracle revealed sealed information in open court? Just a minor issue of Annette intentionally mis-stating a precedent case?

    Oracle wants another crack at a trial that it *lost*, not just a decision it disagreed with. I hope they are re-opening a whole bunch of their own bad behavior.

    And shouldn't this trial be in Ireland, since both companies do most of their business there? Oracle claims $7B of revenue there, and Google $12B. Shouldn't this battle be fought where they pay taxes?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2016 @ 2:31pm

    Oh good, I was worried what would happen after SCO was killed for good. Glad to see that dead horses continue to rise.

    reply to this | link to this | view in chronology ]

  • identicon
    GoogleErred, 19 Aug 2016 @ 2:37pm

    WillStickWithTheFOSSPatentTakeOnThis

    "Judge Alsup can either seize this splendid opportunity to correct some of his mistakes or he can make another huge mistake by letting Google's lawyers get away with what they've done"

    reply to this | link to this | view in chronology ]

  • icon
    Daniel (profile), 19 Aug 2016 @ 3:06pm

    AOSP has been moving to OpenJDK, that move started awhile ago now.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 23 Aug 2016 @ 6:50pm

      Re:

      AOSP has been moving to OpenJDK, that move started awhile ago now.

      I don't see how that makes any difference legally, as long as what Oracle is suing over is the API.

      reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 19 Aug 2016 @ 3:32pm

    If Charles Dickens were reincarnated in this era...

    ... he would write a modern novel centred on a more up-to-date variation of the perpetual, never-ending legal grind -- only this time he'd likely anchor the plot in a technological corporate, "intellectual property" war, rather than some pokey old, internecine familial inheritance battle. (To bad Iain M. Banks is gone -- he would have made a good job of it).

    And the lawyers at Jarndyce and Jarndyce would be not merely green with envy, but would exhibit throbbing purple highlights as well...

    reply to this | link to this | view in chronology ]

    • icon
      TechDescartes (profile), 19 Aug 2016 @ 5:13pm

      Re: If Charles Dickens were reincarnated in this era...

      Jarndyce and Jarndyce was the name of the case, not the name of a law firm.

      reply to this | link to this | view in chronology ]

      • icon
        BernardoVerda (profile), 19 Aug 2016 @ 7:30pm

        Re: Re: If Charles Dickens were reincarnated in this era...

        > Jarndyce and Jarndyce was the name of the case, not the name of a law firm.

        Doh!!!
        :facepalm:

        Good catch -- I stand corrected.
        That should have been "the lawyers IN Jarndyce and Jarndyce..."

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2016 @ 4:30pm

    Oracle going down for the third time? I knew they would be back on their knees in no time.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 19 Aug 2016 @ 5:05pm

    The Neverending Story

    As long as Oracle still has money to pay lawyers, they will never stop.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Aug 2016 @ 5:24pm

      Re: The Neverending Story

      Maybe that is the scheme of their lawyers. Funnel as much money out of a failing company as possible into their pockets.

      reply to this | link to this | view in chronology ]

      • icon
        David (profile), 20 Aug 2016 @ 5:04pm

        Re: The Neverending Story

        They have already failed as an innovative corp that has devolved to a cash grabbing copyright troll.

        Oracle isn't failing in the we are running out of cash option. The business side is still cranking the cash machine.

        If you have any SFWO (Sad Friends With Oracle) you will without a doubt be able to listen to horror stories about Oracle's licensing police and their friendly audits that cost their customers millions. They have been know to watch for announcements of IT improvement projects that increase the number of cores and virtual systems which all need a separate license for their products.

        Even better, IMO, are the ones regarding trying to get out of a contract with Oracle. Those efforts are much like this trail.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Aug 2016 @ 1:28am

          Re: Re: The Neverending Story

          Oracle's licensing model is deliberately opaque and a mess. It doesn't help that they rename their products every two or three years.

          For laughs, when the Oracle Account Manager calls round to talk turkey, make sure you have a few SQL Server boxes lying round.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2016 @ 1:03am

      Re: The Neverending Story

      Do they not realize that Google has more money than them with which to pay lawyers, and they could do unto themselves what they want to do to Google in the use the courts to drive a company bankrupt game.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 19 Aug 2016 @ 6:11pm

    Too bad

    We would know the outcome of this case if there were a real Oracle involved.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2016 @ 6:50pm

    never ending

    Oracle, the new SCO

    reply to this | link to this | view in chronology ]

  • identicon
    bshock, 19 Aug 2016 @ 7:21pm

    and a 3rd Oracle/Google trial surprises you because...?

    Oh, wait -- is this that rhetorical disingenuousness thing you're always doing?

    reply to this | link to this | view in chronology ]

  • icon
    royleith (profile), 20 Aug 2016 @ 1:46am

    Oracle Gave Google A License for Java SE

    The point of this case is that Java SE is licensed for 'General Purpose Desktop Computers', but not for mobile phones.

    Sun wanted Java to be implemented on as many general purpose computer platforms as possible and roped in many organisations, including Apache, to make this happen.

    http://www.oracle.com/technetwork/java/javase/terms/license/index.html

    (Note: the original Sun licence in force during Google's development of Android did not refer to tablets and was much more loosely phrased. Oracle 'tightened it up' after the start of the case. Google never used Sun's binary code, but used the Sun licensed Apache code. The Sun license must apply to the API as well as any Sun binary code otherwise the licence is useless for Sun's desktop plans.)

    Oracle were incensed that their plans for a money-making, Java-based, mobile phone OS were stymied by Android. That is why there was all the discussion about mobile phones and tablets in the case because that's the basis of the complaint.

    Google Chrome is a general purpose computer. It has a full Java SE licence. It can also use the open source Java JDK licensed by Sun.

    If Oracle are going to sue every Unix/Linux based general purpose computer OS that implements or uses Java SE, then that is the end of Java.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Aug 2016 @ 8:12am

      Re: Oracle Gave Google A License for Java SE

      (Note: the original Sun licence in force during Google's development of Android did not refer to tablets and was much more loosely phrased. Oracle 'tightened it up' after the start of the case.

      In which case shouldn't the original loose license applies to Googles use of Java in this case? This reeks of Oracle trying to recover a bad investment by trying to shakedown a rich competitor.

      reply to this | link to this | view in chronology ]

    • icon
      David (profile), 20 Aug 2016 @ 5:07pm

      Re: Oracle Gave Google A License for Java SE

      Google is dropping the W*, Linux Java based app stores BTW. Chrome still has one but the others will be gone in a few months.

      Now, being the cynic that I am we have two possible reasons. A: this stupid case, B: Nobody cared about it anyway as JavaSE is still a piece of crap.

      reply to this | link to this | view in chronology ]

    • identicon
      oliver, 21 Aug 2016 @ 11:38pm

      Re: Oracle Gave Google A License for Java SE

      "... the end of Java"
      You say that as if this was a bad thing!

      JAVA was an abomination from the start, and all the cross-platform bullshit is just that.
      Yeah, it runs on a bunch of platforms, but it is SLOW as HELL!
      Just let it die.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2016 @ 3:06pm

    This case is never going to end.

    Which is the way the lawyers like it.

    reply to this | link to this | view in chronology ]


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