Google Tries to Toss Android Copyright Suit

SAN FRANCISCO (CN) - Google moved to dismiss copyright-infringement claims in litigation over the alleged use of Oracle's patented Java programs in Google's Android phones.

Attorneys for Google claim that Oracle's copyright infringement claim rests almost entirely on the use of specifications for application-programming interface and that any similarity between the two platforms should be considered fair use.

The specifications are "functional requirements for compatibility" that are "not protected by copyright," Google said. They define how programmers interact with the Android platform, much as the menus in a computer program define how users interact with the program. Menus in a computer program are also not protected by copyright, according to the motion.

And just as the "print" menu option in a computer program is different from the code that actually causes the program to print a document, Google said its specifications do not define how the Android platform actually works.

The ability to copyright Java language application programming interface specifications presents a pure question of law, Google attorney Michael Kwun said.

In support of this idea, Kwun quoted Eric Schmidt, the chief technical officer for Sun Microsystems, which developed Java before the company was sold to Oracle in 2010.

Schmidt, the current Google executive chairman and former CEO, said in 1994 that "the interface, as an element necessary for interoperability, falls into the category of ideas which the copyright law seeks to disseminate to promote the public good. This in no way curtails the protectability of the code itself."

Kwun, an attorney with Keker & Van Nest, claims that "aside from the Java language API specifications, Oracle's copyright claim is based on minimal alleged copying, concerning only 12 files out of over 50 thousand in Android, and material of no quantitative significance. A reasonable jury could only conclude that any such similarities are de minimis and thus not actionable. Google is therefore entitled to summary judgment on the entirety of Oracle's copyright claim."

Both in the motion for summary judgment and at a July 21 hearing, Google attorneys said their client had numerous options when developing the Android operating system. They could enter a technology-development partnership with Sun Microsystems, incorporating Sun's implementation of its virtual machine and Java language libraries into the platform. Or they could develop Android from the ground up. When negotiations with Sun failed, Google decided to "concentrate fully on the ground-up solution, using only new materials and publicly-available open source materials."

In a declaration filed along with the motion for summary judgment, Kwun said "it is undisputed that the Java programming language is in the public domain and anyone was free to use it without charge, as Android does."

Yet Oracle alleges that the specifications for 37 Android Java language application programming interface packages "are unauthorized derivative works" and are "derived from or substantially similar to" the corresponding Java language application programming interface specifications contained in the Oracle's asserted works."

Google said Oracle cannot point to one specific code in the application programming interface packages it claims were copied from Oracle code. Rather, Oracle asserts that Google has infringed by including in Android implementations of applications-programming interfaces that provide compatibility for applications written in the standard Java programming language.

And although Oracle also claims that the Android code that implements those specifications is an "unauthorized derivative work," when it comes to the actual material that allegedly was copied, Oracle again points only to its specifications.

Kwun said a plaintiff must prove ownership of the copyrighted work and that the defendant copied protected elements of the work to establish copyright infringement.

"Where all similarities in expression arise from unprotectable elements, there is no substantial similarity and thus no infringement," he added.

The only similarities between Google's accused packages and the Java language application programming interface packages lie in the specifications for those interfaces, Kwun said, adding that such similarities are not copyright infringement.

The federal court reasoned in Lotus Development Corp. v. Borland International Inc. that "it would be 'absurd' to require every software provider to create different methods for performing each function in a program, which would require users to learn a multitude of different ways to, for example, print files," Kwun pointed out..

"The fact that there may be many different ways to operate a computer program, or even many different ways to operate a computer program using a set of hierarchically arranged command terms, does not make the actual method of operation chosen copyrightable; it still functions as a method for operating the computer and as such is uncopyrightable," the court found, according to Google.

This same reasoning applies to application-programming interfaces for a programming language, Kwun said. "By providing Android [application programming interface] packages addressing many of the same common methods that are provided by Oracle's Java language [application programming interface] packages, Google has ensured that programmers using the Java language need not learn a new way to call these methods when writing programs for both the Java and Android platforms."

Since Oracle cannot show that the Android platform is virtually identical to Java or even substantially similar, the Android platform does not infringe on Oracle's copyrights, Kwun said.

Alternatively, any similarity is a fair use since its implementation of the Android operating system was "transformative," according to the motion, noting an element of the Copyright Act to determine fair use.

"Google's implementation of the Java language APIs at issue was transformative because it enabled programmers to develop applications written in the Java programming language to run on Android, a wholly new 'smart phone' platform," Kwun wrote.

He noted that Schmidt, the former Sun Microsystems CTO, testified to Congress in 1994 that the lack of copyright protection for interface specifications drives "innovation, competition, and economic investment" and [a]rguments to the contrary mix up the distinction between interface specifications and product implementations, in an attempt to retain or regain monopoly control to limit competition."

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