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Does Android Infringe Oracle’s Copyrights In The Java Platform? What The Jury Will – And Won’t – Decide

Posted on Tuesday, May 1, 2012

BY Edward J. Naughton

It’s now up to a jury in San Francisco to determine whether Google’s Android mobile platform infringes Oracle’s copyrights in the code and documentation for the Java Platform.  Or is it?

Over the past twenty months, the case has inspired many gigabytes of commentary by journalists, bloggers, and interested bystanders.  At first, the discussion focused on the broad issues:  whether software patents were good or evil, the importance of competition in the mobile space, the value of an open source mobile platform.  The discussion became more granular as the case progressed – with detailed analyses of “the Lindholm Email,” for instance, and the subpoena served on the Apache project.  And through the trial, law and tech geeks could follow the liveblogs and Twitter feeds to get the minute-by-minute action.    Bloggers have assessed every witness, expounded on the importance of every question and answer, and have variously extolled and denounced the lawyers.

Trials being what they are, Oracle’s and Google’s cases are framed for jurors in familiar narratives:  Oracle tells the jury that Google built Android using Oracle’s property without permission; Google argues that it simply used the freely available Java language and APIs to build Android.

Oracle accuses Google of infringing its copyrights in the “compilable code” and “documentation” of two versions of Java 2 Standard Edition (J2SE): Version 1.4 and Version 5.0, and, more specifically 37 API packages from those two versions.  As defined by the court, the “compilable code” includes the method names, class names, declarations, definitions, parameters, organization, and implementation.  The “documentation” includes the specifications, the English language comments to the code, and all of the method names, declarations, definitions, parameters, and organization in the reference materials for programmers.

Oracle contends that Google copied the structure, sequence, and organization of the compilable code for the 37 API packages as a group.  Google does not dispute that the Android specifications for the 37 API packages at issue “have substantially the same selection, arrangement, and structure as the J2SE specifications.” Google denied that the material at issue is copyrightable, but Judge Alsup instructed the jury that the copyrights in question cover the structure, sequence, and organization of the compilable code.  Google also denies that the elements it has used are infringing, and claims that it made “fair use” of Oracle’s copyrighted material.  Those issues will go to the jury.

With regard to the names of files, packages, classes, and methods, Judge Alsup has instructed the jury that the names cannot be protected individually, on a standalone basis, but that they are necessarily part of the structure, sequence, and organization of the code, and to that extent are protected by copyright.

Oracle has also accused Google of copying the English-language comments from the Java code and reproduced them in the Android API documentation.  Google acknowledges similarities in the wording, but denies that it copied or infringed Oracle’s copyrights.  Google contends that the similarities are attributable to the fact that the Android APIs perform a function similar to those performed by the Java APIs, and also claims that its use was fair.

Oracle also accuses Google of copying verbatim 11 files of compilable code.  Google essentially does not deny copying, but insists that the copying was de minimis, and thus excused.

Yesterday, Judge Alsup sent the case to the jury.  The court has instructed the jury that to find infringement of the copyright in the API code, the Android code must be substantially similar to the Java code.  By contrast, to find infringement of the API documentation, the jury must find that the Android documentation is virtually identical to the Java documentation.

To make these determinations, and to determine whether Google’s copying was de minimis, the jury has been instructed to consider the “works as a whole.”  Oracle and Google have vigorously disputed what constitutes “the work as a whole.”  The court has now instructed the jury that “the work as a whole” should be measured against Oracle’s copyrighted work, not against all of Android.  The idea here is that an infringer accused of copying an excerpt from a book cannot avoid infringement by including the copied excerpt in a much larger work.  Further, for purposes of determining infringement of the API code and documentation, the work as a whole is not the entire work covered by the copyright registration – i.e., not all of J2SE – but is all of the 166 API packages in J2SE.  For purposes of determining whether Google infringed the copyright in the 11 files copied verbatim, however, the work as a whole is each individual file.  Oracle has the burden of proving that the copying was more than “de minimis,” that it was not “so meager and fragmentary compared to the work as a whole that the average audience would not recognize the appropriation.”

On its defenses of fair use and its claim that Oracle made the J2SE API code and documentation freely available to the public, Google bears the burden of proof.

The jury’s findings will be very important, but they won’t be the end of the story.  Judge Alsup has told the jury, for instance, that it must assume that Oracle owns the copyrights, but Google has filed a motion that challenges the effectiveness and scope of Oracle’s registration.  Judge Alsup has also told the jury that the structure, sequence, and organization of the API code is protected by copyright, but he has not made a final ruling on that issue.   Stay tuned for more on those legal issues. Blogs