Oracle & Google Debate Interfaces Ahead of Trial

"By the express terms of Section 102(b) (of the Copyright Act) there are no exceptions to the rule that systems and methods of operation are not copyrightable," Google's brief states (emphasis in original). "Moreover, Section 102(b) excludes protection for all systems and methods of operation, without regard for whether they are original, creative, elegant, life-changing or difficult to develop."

While conceding that the selection, coordination and arrangement of noncopyrightable elements can be copyrighted, Google said "not every selection, coordination and arrangement of elements can be copyrighted - it is copyrightable only if 'the resulting work as a whole constitutes an original work of authorship,' 17 USC 101" which the Java APIs do not.

The APIs are a compilation, and copyright cannot protect a compilation that is a method of operation.

"As the court noted, 'original methods and systems' will, by definition, have a 'structure, arrangement and selection,' and thus if having a structure, arrangement, and selection served as an exception to the rule against copyrighted methods or systems, that would render much of Section 102(b) a dead letter," the brief states.

Google calls the classes, interfaces and other elements of the APIs "tools waiting to be used by a developer who is writing his or her own application." Divorced from implementing code, the APIs are not computer programs. "Instead, the APIs are merely the medium through which Java language developers express themselves."

Further, Google argues, the selection, structure and arrangement of the 37 APIs "reflect judgments about what APIs are most useful, what options should be made available to developers, and how best to organize the APIs."

"These choices were precisely the types of 'functional judgments' the Fifth Circuit explained cannot be protected by copyright," the brief states. "Oracle cannot seriously claim otherwise."

"Even if the court were to conclude that some aspects of the selection, arrangement and structure of the APIs are expressive, there is no way to 'express' the idea of the 37 APIs without repeating that selection, arrangement and structure," Google added. "The merger doctrine therefore bars copyright protection for any arguable expression in the selection, arrangement and structure of the APIs."

In its reply brief, Oracle defended its evidence APIs are creative. "The APIs are a detailed, intricate blueprint that is the product of over a decade of development work, and the evidence will clearly show this," it wrote. "Indeed, one of the people who worked on and 'wrote the APIs for many class libraries at Sun,' including several of the APIs in suit has many times publicly given a presentation that extols both the creativity and the design decisions involved in writing APIs." (Emphasis in original.)

"The APIs easily meet the threshold of creativity applied by the Ninth Circuit in Johnson Controls, which found that 'some discretion and opportunity for creativity exist in the structure' was sufficient to uphold the district court's preliminary injunction finding," the brief states.

According to Oracle, Google "claims the APIs are either a system or a method of operation because '[p]rogrammers cannot use the APIs without relying on the structure, sequence and organization of the APIs.'"

"But no computer program can be used without relying on its organization and structure, and still programs are copyrightable,'" Oracle said.

Google's reply disputes when programmers need a license to use Java. "Oracle seeks to rewrite its concession that the Java programming language is free and open for anyone to use," the brief states. "Although again conceding that anyone can use the language to write programs, Oracle now claims that if developers want a computer to understand what they have written, that requires a license."

"The court should not condone this legal sophistry," Google added. "It is both contrary to Oracle's prior representations to the court, and internally inconsistent."

"For example, in order to retrieve content from a website using the getContent() method, the developer must include statements in the source code that indicate that the getContent() method is in the URL class in the java.net package," the brief states. "Oracle concedes that this requires no license. Yet Oracle argues that Google could not implement this method with its own source code because, according to Oracle, the structure and arrangement of this method are copyrighted. Oracle's concession that the language is free and open for anyone to use is fundamentally inconsistent with its claim that Google's use of the APIs infringes." (Emphasis in original.)

U.S. Magistrate Judge Paul Grewal called an end to settlement talks during the briefing. "In the end, some cases just need to be tried," he wrote, noting that the parties made "diligent efforts" but have reached "an irreconcilable impasse in their settlement discussions."

Both parties must now prepare for a two-to-three-phase trial scheduled to begin April 16.

Phase I will deal with copyright claims only, U.S. District Judge William Alsup said in an earlier ruling. Each side will get 16 hours to submit evidence, after which the jury will render a verdict on copyright issues.

Patent-infringement allegations will make up the second phase, and each side will have 12 hours of evidence time. The same jury will again return a special verdict on patent issues.

If necessary, Phase III will deal with all remaining issues, including willfulness of infringement. Each side gets up to eight hours of evidence time in this respect.

The parties can save time from an earlier phase and use it in a later phase, but they cannot borrow time from a future phase. Trial testimony will not be recorded.

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