|FROM ||Ruben Safir
|SUBJECT ||Subject: [Hangout of NYLXS] Fair USe
|From hangout-bounces-at-nylxs.com Fri May 12 00:32:59 2017
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From: Ruben Safir
Date: Fri, 12 May 2017 00:32:40 -0400
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Subject: [Hangout of NYLXS] Fair USe
List-Id: NYLXS Tech Talk and Politics
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I haven't had a chance to look at this lately but lets review. Google
is involved in two of the most important cases of the 21st century ...
the Java usage case, and the Books Scanning Case...
Oracle America, Inc. v. Google, Inc.
From Wikipedia, the free encyclopedia
(Redirected from Oracle v Google)
Oracle v. Google
US DC NorCal.svg
Court United States District Court for the Northern District of California
Full case name Oracle America, Inc. v. Google, Inc.
Argued April 16, 2012
Judge(s) sitting William Haskell Alsup
Oracle America, Inc. v. Google, Inc. is a dispute related to Oracle's
copyright and patent claims on Google's Android operating system. In May
2012, the jury in this case found that Google did not infringe on
Oracle's patents, and the trial judge ruled that the structure of the
Java APIs used by Google was not copyrightable. The parties
agreed to zero dollars in statutory damages for a small amount of copied
code. On May 9, 2014, the Federal Circuit partially reversed the
district court ruling, ruling in Oracle's favor on the copyrightability
issue, and remanding the issue of fair use to the district court.
A petition for certiorari was denied by the United States Supreme Court
on June 29, 2015. A second trial began May 9, 2016, in which Oracle
sought US$8.8 billion in damages. On May 26, 2016, the trial jury
sided in favor of Google, ruling the action to be fair use.
2 District Court
3 Appeals Court
4 Supreme Court petition
5 Second trial
6 See also
Java was originally developed at Sun Microsystems starting in 1991. It
included a new programming language, a virtual machine, and a set of
libraries for use with the language.
Android, Inc. was founded in 2003 by Andy Rubin, Rich Miner, Nick Sears,
and Chris White to develop a mobile phone platform. Google
purchased Android in 2005 and continued developing the Android operating
system. Google released a beta of the Android platform on November
5, 2007, noting that it would use some Java technologies. Sun
CEO Jonathan Schwartz responded the same day, congratulating Google and
saying they had "strapped another set of rockets to the community's
momentum =E2=80=93 and to the vision defining opportunity across our (and o=
planets." Google released the Android software development kit (SDK)
on November 12, 2007. Amongst other APIs, Android included Apache
Harmony implementations of some of the APIs from the Java SE
specification. Google negotiated with Sun about possible partnership
and licensing deals for Java, but no agreement was reached.
Oracle purchased Sun in January 2010, and continued developing Java.
Oracle continued discussing a possible licensing deal, but an agreement
again was not reached. Oracle sued Google for copyright and patent
infringement in August 2010.
The case was assigned to Judge William Alsup, who split the case into
three phases: copyright, patent, and damages.
The copyright phase consisted of several distinct claims of
infringement: a nine-line rangeCheck function, several test files, the
structure, sequence and organization of the Java application programming
interface (API), and the API documentation. Oracle alleged infringement
of 37 separate Java APIs. After extensive pre-trial briefing, this
phase began on April 16, 2012. At the end of this phase, the jury
ruled that the API was infringed, but deadlocked on Google's fair use
defense for this claim. They also found that rangeCheck was infringed,
but that neither the documentation nor the other literal code was.
The patent phase began on May 7, 2012 with the same jury. By the
time of trial, Oracle's patent case comprised claims from two patents,
6061520 (Method and system for performing static initialization),
and RE38104 (Method and apparatus for resolving data references in
generated code). Google pursued a non-infringement defense. For the
6061520 patent, they argued that they were using parsing for optimizing
static initialization, rather than "simulating execution" as the claim
required. For the RE38104 patent, they argued that the instruction did
not include a symbolic reference. The jury found non-infringement on all
patent counts. As a result of these rulings and a stipulation, there
was no jury damages phase. The parties agreed to zero dollars in
statutory damages for a small amount of copied code.
The court's decision was published on May 31, 2012. It upheld the jury
verdict on rangeCheck, though it was described as "overblown". In
response to a motion for a judgment as a matter of law, the court ruled
that the other literally-copied files also infringed, setting aside that
portion of the jury verdict.
However, on the primary copyright issue of the APIs, the court ruled
that "So long as the specific code used to implement a method is
different, anyone is free under the Copyright Act to write his or her
own code to carry out exactly the same function or specification of any
methods used in the Java API. It does not matter that the declaration or
method header lines are identical." The ruling found that the structure
Oracle was claiming was not copyrightable under section 102(b) of the
Copyright Act because it was a "system or method of operation."
The court also drew on Baker v. Selden, Whelan v. Jaslow, Computer
Associates v. Altai, Gates Rubber v. Bando Chemical Industries, Lotus v.
Borland, Hutchins v. Zoll, Feist v. Rural, Johnson Controls v. Phoenix
Control Systems, Brown Bag Software v. Symantec Corp., Atari v.
Nintendo, Sega v. Accolade, and Sony v. Connectix.
Based on reviewing this case history, the court noted that:
...the above summary of the development of the law reveals a
trajectory in which enthusiasm for protection of "structure, sequence
and organization" peaked in the 1980s, most notably in the Third
Circuit=E2=80=99s Whelan decision. That phrase has not been re-used by the =
Circuit since Johnson Controls in 1989, a decision affirming preliminary
injunction. Since then, the trend of the copyright decisions has been
more cautious. This trend has been driven by fidelity to Section 102(b)
and recognition of the danger of conferring a monopoly by copyright over
what Congress expressly warned should be conferred only by patent. This
is not to say that infringement of the structure, sequence and
organization is a dead letter. To the contrary, it is not a dead letter.
It is to say that the Whelan approach has given way to the Computer
Associates approach, including in our own circuit. See Sega Enters.,
Ltd. v. Accolade, Inc., 977 F.2d 1510, 1525 (9th Cir. 1992); Apple
Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1445 (9th Cir. 1994).
Oracle appealed to the Federal Circuit Court of Appeals, and Google
filed a cross-appeal on the literal copying claim. The hearing
was held on December 4, 2013, and the judgment was released on
May 9, 2014.
The court noted that Copyright Act provides protection to "original
works of authorship fixed in any tangible medium of expression" (p. 17).
The legislative history explains that literary works include "computer
programs to the extent that they incorporate authorship in the
programmer's expression of original ideas, as distinguished from the
ideas themselves" (p. 18). To qualify for copyright protection a work
must be original. 17 U.S.C. =C2=A7 102(a). The court was therefore "first to
assess whether the expression is original to the programmer" (p. 24),
something that Google had already conceded (p. 21). This led the court
to conclude "that the overall structure of Oracle's API packages is
creative, original, and resembles a taxonomy" (p. 14). It therefore
reversed the district court on the central issue, holding that the
"structure, sequence and organization" of an API is copyrightable. It
also ruled for Oracle regarding the small amount of literal copying,
holding that it was not de minimis. The case was remanded to the
district court for reconsideration only the basis of the fair use
Supreme Court petition
In October 2014, Google petitioned the U.S. Supreme Court to hear the
case. Oracle responded to the petition in December. Following a
discussion of the petition at the Court's January 9 conference, the
Court issued a Call for the Views of the Solicitor General, asking for
the U.S. Solicitor General's input on whether the petition should be
granted. On May 26, 2015 the U.S. Solicitor General recommended that
the petition should be denied, expressing agreement with the appeals
court ruling. The Court denied the certiorari petition on June 29,
As a result of the successful appeal, a new district court trial began
on May 9, 2016 on the question of whether Google's actions were fair
use. Closing arguments were completed on May 23, 2016 and the
jury of eight women and two men began deliberations. Oracle was seeking
damages of up to US$9 billion. On May 26, 2016, the
jury found that Android does not infringe Oracle-owned copyrights
because its re-implementation of 37 Java APIs is protected by fair use.
Oracle announced its intention to appeal, but before doing so it
attempted unsuccessful motions to disregard the jury verdict, and
then to hold a re-trial. Oracle officially filed its appeal on
October 26, 2016.
So many immigrant groups have swept through our town
that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
http://www2.mrbrklyn.com/resources - Unpublished Archive
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Being so tracked is for FARM ANIMALS and and extermination camps,
but incompatible with living as a free human being. -RI Safir 2013
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