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A few thoughts on this: Google had pushed for a fall trial date at the earliest but Oracle argued vigorously (and successfully) for an immediate date on ground

by grellas 14y ago

A few thoughts on this: Google had pushed for a fall trial date at the earliest but Oracle argued vigorously (and successfully) for an immediate date on grounds that the case was ready with Google only playing for time. To induce the judge to give it an early trial date, Oracle offered to dismiss with prejudice all patents that had been rejected in a final office action by the USPTO subject to reinstatement in the event the PTO reversed itself prior to the start of trial. Trial started on April 16 and, lo and behold, the PTO did reverse itself concerning one significant patent (the '702 patent) such that Oracle would normally have been able to pursue its claims for infringement based on that patent. However, it did so a few days after the trial had started. As a result, that claim wound up being finally dismissed for purposes of this lawsuit. Oracle tried to renege and pushed the judge to reinstate the claim but the judge said no (decision here: (http://www.scribd.com/doc/91307218/Oracle-denied-using-revived-patent-vs-Google)[pdf] http://www.scribd.com/doc/91307218/Oracle-denied-using-reviv...). Thus, Oracle screwed itself as a result of having charged full speed with tomahawk swinging wildly in the air. In pushing aggressively for tactical advantage, it essentially threw away the one patent claim that had any potential for viability (the two patent claims on which it lost at trial were in fact relatively weak, with one of the two patents about to go down before the USPTO and set in any event to expire in December, among other things). Oracle now finds itself in a deep hole. It won a few crumbs in the copyright phase and got skunked on the patent phase. More copyright drama to follow as the judge rules on API copyrightability. Oracle might win on that issue, as it is a tricky one under Ninth Circuit law (see http://news.ycombinator.com/item?id=3980642 http://news.ycombinator.com/item?id=3980642), but it then faces a retrial in which the judge would give much more refined instructions on what it means to infringe the SSO of the Java APIs than he gave in the first trial - between that and the (I think, formidable) fair use defense that Google has, it is strictly an uphill fight for Oracle from here on out. (By the way, Google has done a masterful job of arguing the issue of why APIs should not be copyrightable and, for those inclined to read through a superb legal brief on the issues, here it is: http://www.groklaw.net/pdf3/OraGoogle-1137.pdf http://www.groklaw.net/pdf3/OraGoogle-1137.pdf). Oracle may yet rally if a lot of things go its way. I wouldn't bet on it though. Much more likely, in my view, is that the case becomes a testament to what happens when a party makes a high-stakes opportunistic legal grab that goes badly awry. What Larry Ellison set out to justify as Oracle's vindication has instead become Oracle's folly.

Natsu 14y ago
The judge has called for briefing after briefing on the copyright status of APIs and has taken quite a bit longer to work on those than most other parts of this lawsuit. I assume this bodes well for Google, given that you've said the precedents are difficult to manage if one wants APIs not to be copyrightable. In your view, what's the best ruling we could hope for? What are the judge's options (if any) if he thinks that the precedents in his circuit are out of line with those everywhere else? Does all of that have to be decided at a higher level? Or is there some fine line he can walk to distinguish the other cases from this case?
- grellas 14y ago
  Best case: judge concludes that the 37 APA packages are purely functional and hence not protected by copyright. Ninth Circuit precedents (in my view) preclude him from doing this as a categorical imperative ("all APIs are inherently unprotectible by copyright") but nothing prevents the judge from saying, in effect, that the experts are in essential agreement that the "structure, sequence, and organization" of these APIs plays a purely functional role (to facilitate calls to an underlying black box that has the implementing code) and is therefore merely a method or system of operation under 17 U.S.C. sec. 102(b) (meaning, Congress has denied copyright protection to such elements of a software program even if it otherwise constitutes a form of original expression). Such a ruling would be entirely consistent with Lotus v. Borland (a First Circuit case affirmed by a divided Supreme Court) but would depend heavily on the judge's assessment of the factual evidence (i.e., what the experts testified about how the APIs work within the Java context) and not on categorical pronouncements about APIs generally. In my view, the Ninth Circuit precedents would block a generalized ruling but not a fact-specific one. That is why the judge had to kick down the road so often. He had to wait until all the evidence was in to make a final assessment. Because the ruling would be fact-specific, it would not be an all-out victory for interoperability but it would still be very strong. If the judge cannot reach such factual conclusions from the evidence, then he is left with concluding that the SSO of the APIs as represented in Java do have expressive elements and are hence protected by copyright. This would mean a retrial with instructions given to the jury much as before and with a heavy fight over fair use. Of course, in the end, who really knows. It is clear that the judge has done extensive homework on this and that is perhaps the best sign that the decision will be well thought out. Only time will tell.

by grellas 14y ago

Natsu 14y ago

The judge has called for briefing after briefing on the copyright status of APIs and has taken quite a bit longer to work on those than most other parts of this lawsuit. I assume this bodes well for Google, given that you've said the precedents are difficult to manage if one wants APIs not to be copyrightable. In your view, what's the best ruling we could hope for? What are the judge's options (if any) if he thinks that the precedents in his circuit are out of line with those everywhere else? Does all of that have to be decided at a higher level? Or is there some fine line he can walk to distinguish the other cases from this case?

grellas 14y ago
Best case: judge concludes that the 37 APA packages are purely functional and hence not protected by copyright. Ninth Circuit precedents (in my view) preclude him from doing this as a categorical imperative ("all APIs are inherently unprotectible by copyright") but nothing prevents the judge from saying, in effect, that the experts are in essential agreement that the "structure, sequence, and organization" of these APIs plays a purely functional role (to facilitate calls to an underlying black box that has the implementing code) and is therefore merely a method or system of operation under 17 U.S.C. sec. 102(b) (meaning, Congress has denied copyright protection to such elements of a software program even if it otherwise constitutes a form of original expression). Such a ruling would be entirely consistent with Lotus v. Borland (a First Circuit case affirmed by a divided Supreme Court) but would depend heavily on the judge's assessment of the factual evidence (i.e., what the experts testified about how the APIs work within the Java context) and not on categorical pronouncements about APIs generally. In my view, the Ninth Circuit precedents would block a generalized ruling but not a fact-specific one. That is why the judge had to kick down the road so often. He had to wait until all the evidence was in to make a final assessment. Because the ruling would be fact-specific, it would not be an all-out victory for interoperability but it would still be very strong. If the judge cannot reach such factual conclusions from the evidence, then he is left with concluding that the SSO of the APIs as represented in Java do have expressive elements and are hence protected by copyright. This would mean a retrial with instructions given to the jury much as before and with a heavy fight over fair use. Of course, in the end, who really knows. It is clear that the judge has done extensive homework on this and that is perhaps the best sign that the decision will be well thought out. Only time will tell.