Oracle has asked a US Federal Circuit Appeals Court to overturn an earlier decision in the database giant’s billion-dollar intellectual property lawsuit against Google, with an audacious brief that compares Google’s use of Java in its Android smartphone OS to an author selling counterfeit Harry Potter books.
Oracle’s appeal brief, filed on Monday, argues that Judge William H. Alsup of the US District Court erred when he held that Google had not violated Oracle’s copyrights by implementing its own, nonstandard version of Java in Android.
Throughout 89 pages of arguments and a 138-page addendum of court transcripts, Oracle attempts to poke holes in each of Judge Alsup’s rulings while simultaneously restating its own position that Google knowingly and wilfully caused it harm.
Groklaw is carrying the full text of the appeal, and it’s a doozy. Here’s how it begins:
Ann Droid wants to publish a bestseller. So she sits down with an advance copy of Harry Potter and the Order of the Phoenix – the fifth book – and proceeds to transcribe. She verbatim copies all the chapter titles – from Chapter 1 (“Dudley Demented”) to Chapter 38 (“The Second War Begins”). She copies verbatim the topic sentences of each paragraph, starting from the first (highly descriptive) one and continuing, in order, to the last, simple one (“Harry nodded.”). She then paraphrases the rest of each paragraph. She rushes the competing version to press before the original under the title: Ann Droid’s Harry Potter 5.0. The knockoff flies off the shelves.
J.K. Rowling sues for copyright infringement. Ann’s defenses: “But I wrote most of the words from scratch. Besides, this was fair use, because I copied only the portions necessary to tap into the Harry Potter fan base.”
Obviously, the defenses would fail.
Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid – and has offered the same defenses.
Oracle goes on to accuse the court of failing to grant Oracle’s source code the same copyright protections that it would a novel or a symphony:
Copyright protects a short poem or even a Chinese menu or jingle. But the copied works here were vastly more original, creative, and labor-intensive. Nevertheless, the district court stripped them of all copyright protection. The court saw this software as just different …
This notion of software exceptionalism for any code is wrong.
In his original decision, Judge Alsup found that Google had not infringed Oracle’s copyrights because Google had only mimicked Oracle’s APIs, rather than copying the code for them outright, and that APIs, in and of themselves, were not copyrightable.
“So long as the specific code used to implement a method is different, anyone is free under theCopyright 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,” the judge wrote.
But Oracle’s appeal argues that Google did make verbatim copies of the declarative code of the Java APIs – the lines that specify the names of objects, method calls, variables, exceptions, and other API components – and then filled in its versions of the APIs with its own, work-alike code.
According to Oracle, for Google to build its Android software that way is no different from its hypothetical Harry Potter example, in which the spurious author “Ann Droid” copies the first sentence of each paragraph and then paraphrases the rest.