Copyright

by Mike Masnick


Filed Under:
android, apis, cafc, copyright, fair use, java

Companies:
google, oracle



Oracle Files Its Opening Brief As It Tries (Again) To Overturn Google's Fair Use Win On Java APIs

from the still-ain't-over dept

As was widely expected, back in October, Oracle announced its appeal of Google's big fair use win, concerning its reuse of certain Java API components in Android. If you've been following this (long, long, long) case, you'll recall that Google has won twice at the district court level. The first time, Judge William Alsup correctly noted that APIs were not subject to copyright, because copyright law clearly states that copyright protection does not apply to "any idea, procedure, process, system, method of operation, concept, principle, or discovery," and an API is a process, system or method of operation. However, the Court of Appeals for the Federal Circuit (CAFC), who only had jurisdiction over the case because it initially involved a patent issue, seemed unable to understand that an API is different from software and overturned the lower court's sensible ruling.

That resulted in the second case which was weird, because everyone had to tiptoe around the fact that basically everyone had assumed that APIs were not covered by copyright, in order to instead make a fair use argument, which ultimately succeeded. Oracle then tried to play some games to get that ruling overturned, but that failed miserably, when the judge pointed out that Oracle's argument was almost entirely based on a failure to read what Google had actually given them (Oracle had claimed that Google failed to disclose something important, when the reality was that Oracle's lawyers failed to read the material that Google had given them).

Anyway, now that things are back at CAFC, we have to hope and pray that the court doesn't muck things up any worse than it already has (and, trust me, it's mucked things up badly to the point that it's impacting a bunch of other cases). On Friday, Oracle filed its 155-page opening brief. Feel free to dig in, if you must, but the arguments are (mostly) basically what we expected. Oracle argues that Google's use is not fair use (basically saying the jury got it wrong). It further argues that the case should be sent back to the district court because it was prevented from presenting key evidence that would have undermined the fair use claim. And then, somewhat incredibly, at the end, Oracle continues to try to argue that Google concealed its plans to expand Android into PCs -- the very issue that Judge Alsup smacked Oracle down for when it was revealed that Google had shared that info, and Oracle just hadn't read it. In the filing, Oracle whines that Judge Alsup "blamed the victim" for not having read what Google actually gave them, saying that it was impossible to have read everything Google gave them because there was just too much stuff and this was a "needle in the haystack." That... seems pretty weak. Amusingly, at the same time that Oracle is complaining that Google gave Oracle too much in discovery, it also complains that Google clearly withheld more info. Throw any argument at the wall and see what sticks, I guess.

Frankly, this opening brief seems to really lean in to CAFC's notorious ignorance of how software works, and the fact that last time around it couldn't tell the difference between an API and software. It just keeps focusing on the agreed upon point that Google copied some of Java's APIs, but keeps calling it "copyrighted code." It's impossible to predict how CAFC will rule, because CAFC is frequently hilariously confused when it comes to how technology (and software in particular) actually work. But hopefully someone over there will take the time to figure it out. After all, there have been a few, somewhat shocking signs of enlightenment in the past few months at CAFC. Hopefully that continues.


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  • icon
    That One Guy (profile), 13 Feb 2017 @ 6:36am

    "The what now? Oh, that pile of text you sent us. Yeah we didn't read it, too much work."

    In the filing, Oracle whines that Judge Alsup "blamed the victim" for not having read what Google actually gave them, saying that it was impossible to have read everything Google gave them because there was just too much stuff and this was a "needle in the haystack."

    So Oracle sent a 155 page document, in which among their other arguments they complain that Google sent them too much stuff to go through and that they should get a pass for not actually reading what was sent them.

    By that argument sounds like the CAFC could save some time, skim over the filing made by Oracle, and base any decisions they make on whatever happens to stick from the brief glance through. Any relevant points are clearly just 'needles in a haystack' after all, and it's not fair to expect the CAFC to read everything Oracle sends them, now is it?

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

    • icon
      Trails (profile), 13 Feb 2017 @ 8:45am

      Re: "The what now? Oh, that pile of text you sent us. Yeah we didn't read it, too much work."

      Google also egregiously and with malicious intent failed to put a TL;DR section in their filling as required by the Geneva convention.

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

    • identicon
      Anonymous Coward, 13 Feb 2017 @ 5:21pm

      Re: "The what now? Oh, that pile of text you sent us. Yeah we didn't read it, too much work."

      But there's lots of pages, so Oracle must have put lots of work into it. OK, Oracle wins the case!

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

  • icon
    Trails (profile), 13 Feb 2017 @ 8:32am

    Unclosed Parantheses Make the Baby Jeebus Cry

    (and, trust me, it's mucked things up badly to the point that it's impacting a bunch of other cases. On Friday...

    Java dev, cannot handle. Need big boy nap now.

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

    • identicon
      Anonymous Hero, 13 Feb 2017 @ 8:41am

      Re: Unclosed Parantheses Make the Baby Jeebus Cry

      TechDirt cannot use closed parentheses because "matching parentheses" notation appears in the Java API, which has been copyrighted by Oracle.

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

  • identicon
    Anonymous Coward, 13 Feb 2017 @ 9:04am

    Zombie lawsuit

    It's the lawsuit that will never die. I think this one is going to be worse than the SCO lawsuit...

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

    • identicon
      Anonymous Coward, 13 Feb 2017 @ 9:44am

      Re: Zombie lawsuit

      And like SCO the the case is built on code that the company bought, and they are trying to ignore all what the creators of the code allowed..

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

    • identicon
      SpaceLifeForm, 13 Feb 2017 @ 10:06am

      Re: Zombie lawsuit - SCOG v IBM

      Note that is not really dead yet.

      It really is a zombie.

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

    • icon
      Eldakka (profile), 13 Feb 2017 @ 9:22pm

      Re: Zombie lawsuit

      I think this one is going to be worse than the SCO lawsuit...

      At least in the SCO lawsuit, SCO itself was a failing company with no revenues, just investors propping up the lawsuit, so it eventually ran out of money and filed for bankruptcy.

      Unfortunately in this case, both companies are monsters and very profitable businesses.

      In 2016, Oracle had profits of US$8.9B on revenues of US$39B (pretty good return there).

      Google (well, Alphabet Inc. now) had profits of US$19.5B on revenues of US$90B

      So both companies can afford to keep paying for this suit out of petty cash for a looonnngggg time to come.

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

      • identicon
        Lawrence D’Oliveiro, 13 Feb 2017 @ 10:30pm

        Re: At least in the SCO lawsuit, SCO itself was a failing company with no revenues...

        Give Oracle time.

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

        • identicon
          David, 14 Feb 2017 @ 1:06am

          Re: Re: At least in the SCO lawsuit, SCO itself was a failing company with no revenues...

          Or let Oracle win. Their business relies on the UNIX APIs, it relies on the SQL query language, it relies on a whole lot of stuff that they, like everyone else, felt confident to build upon.

          They are trying to unroot and upend the industry. Which is an abysmally stupid move for an established player.

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

  • identicon
    stosh, 13 Feb 2017 @ 11:21am

    Given the quality of our judges, no lawsuit is too ridiculously formulated to not be misjudged in the extreme.

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

  • icon
    127.0.0.1 (profile), 15 Feb 2017 @ 12:09pm

    Only Google understands 'search'

    Perhaps if Oracle had done a Google search of the documents, that they were sent, they would have found the needle!

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


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