Google Files Appeal Brief and Cross Appeal in Oracle v. Google ~pj

Google has now responded to Oracle's appeal in the Oracle v. Google API copyright case. Plus it adds its own cross appeal. It's fascinating.

We're working on a text version for you, but in the meantime, I'll show you the introduction. I'd sum it up like this: The Java API isn't a work of imaginative fiction. It's a functional, utilitarian work. The issue isn't how "creative" it may be; the legal question is how functional is it? So Oracle is asking for something for its functional work that Copyright Law doesn't provide, from Google's perspective (and mine):

However creative and useful the Java API may be, it is fundamentally a functional, utilitarian work. It exists for the practical convenience of programmers. A work of imaginative fiction like Harry Potter serves no such utilitarian function. Its chapter headings and topic sentences exist entirely for communicative and aesthetic purposes-not to "bring about a certain result" when used in a computer.

No court accepts Oracle's premise that functional works like the Java API obtain the same level of copyright protection as works of imaginative fiction. The "fundamental purpose of the Copyright Act" is to "encourage the production of original works by protecting the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on." Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527 (9th Cir. 1993). Therefore, if a work is "largely functional," like software, "it receives only weak protection. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." Id. (citation and quotation marks omitted).

Copyright protection of functional works is said to be 'thin' because section 102(b) of the Copyright Act filters out and denies protection to the functional elements within those works. The more functional the work is, the more there is to filter out. Section 102(b) provides that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Congress explained that one reason for enacting section 102(b) was to "make clear" that "the 'writing" expressing [a programmer's] ideas"-his code-is "the copyrightable element in a computer program," while "the actual processes or methods embodied in the program are not within the scope of the copyright law."

It's too late for Oracle to ask the court to ask for a ruling of copyrightability of the code anyway, Google asserts, because it waived it, but if the court nevertheless reverses the copyrightability judgment of the district court, it should direct it on remand to retry Google's fair use defense as well as the related issue of infringement:

Sensing that its SSO claim may be doomed, Oracle argues that -- SSO aside -- there is an "independent" ground for reversal based on the purported copyrightability of 7,000 lines of non-implementing code that make up the class and method names and declarations of the 37 packages. But any asserted error regarding those 7,000 lines is both harmless and waived, because the district court gave the jurors instructions and a verdict form that barred them from considering whether Google infringed those lines, independent of their SSO. Oracle failed to challenge the instructions or the verdict form at trial, or in its opening brief. Thus, the copyrightability of the 7,000 lines (apart from the SSO) is not an issue in this case, and a reversal based on that theory could not alter the ultimate judgment.

Accordingly, this Court should affirm the copyrightability judgment while granting Google's cross-appeal on two minor issues of literal infringement. However, if the Court reverses the copyrightability judgment, it should direct the district court on remand to retry Google's fair-use defense (as well as the inseparable issue of infringement).

Here are the issues on Google's Cross Appeal:

Was Google's use of eight decompiled test files and nine lines of rangeCheck code de minimis and thus non-infringing when compared to the 2.8 million lines of code in the class libraries of the registered Java 2 SE version 5.0 platform?