“[…] despite Oracle pointing out the commercial success of Android – which would tend to weigh against a finding of fair use – it was clear that Judge Alsup wasn’t inclined to side with the company. The judge even scolded Oracle counsel Michael Jacobs when he first argued his case, pointing out that the company’s legal team had insisted on a jury trial and that ‘now we got their verdict and you want something else’.” Someone must be having a bad day.
Funnily, how Mueller sees it as a victory for Oracle
To be honest, it is a stalemate. The point that everybody agreed on was ruled like it should, aka, that *if* APIs are copyrighted, then Google infringed on. However, the game changing questions (API Copyright-ability and fair use) are still unanswered. Putting the judge in a tricky position, the way forward is:
1) make a ruling on API Copyright-ability, but obviously, the judge did not want to make such a ruling, but now he has too
2) and if API are copyright-able, does fair use rule apply to them
If the judge decide against API Copyright-ability, then Oracle loses on all accounts (except for a 5-lines functions). In the other case, someone has to answer the fair use question, Oracle considered the judge could do it, while Google argued that only a jury can rule over it. It seems that the judge is siding with Google, however, the current jury is not going to answer that question. From a legal (and storyline) point of view, it would be interesting for the judge to rule on API copyright-ability, just to know what happen next
(in any case, I don’t want to be Judge Alsup on this one).
The judge reminded Michael Jacobs, lawyer for Oracle, that they had asked for the jury to rule on the copyright issue and that now that it was done he wasn’t going to overrule their verdict and say that Google had no right to fair use.
The copyright issue only consists of the protection of the structure, sequence and organization of the APIs at this point, not the use of them in programming. Since Google used Harmony to ‘copy’ them and Harmony is licensed under the Apache license it seems like this will not turn into a big payday for Oracle.
The patents are also allowed to be used under the GPLed versions of Java so I don’t expect much to come out of that either.
The point is that the jury did not say that Google has right to fair use. The question is unanswered.
It all comes down to NINE (9) lines of code, now…
A freaking array range-check in java, no less.
And, get this, the programmer accused of doing the copying is the same programmer that wrote the original code…
Perhaps, just perhaps, we need to extend, by law, forced forgiveness of these types of situations. Still require the end of use of the copyrighted work, but not permit any punitive damages when it is quite obvious the code could have been easily recreated by simple incidental recollection.
I wrote a program many years ago to check for the death of a thread, I was contacted that my code appeared to be a near direct copy of code I had never even seen. My variable names, indents, spacing, and more was apparently spot-on with the code.
How could that happen?
Well, I learned to program by reading the public APIs, example applications, and documentation from the same source as the program I apparently cloned so closely. …Seems only natural that my code would be so similar.
As a result, I changed my coding style quite drastically… something which I’ve had to undo in recent years while once again attempting to code in the public eye.
–The loon
In order to be a copyright violation, the copied code must constitute a major element of the derivative work.
http://en.wikipedia.org/wiki/Derivative_work
“In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work (the underlying work).”
Nine lines does not constitute a major element of Dalvik nor Android.
There are no damages to be claimed here.
Strangely, the oracles of Ancient Greece predicted that one of them will become what’s called an “SCO”…
“So even though we found that C++ was unsuitable, we designed Java as closely to C++ as possible in order to make the system more comprehensible.”
http://java.sun.com/docs/overviews/java/java-overview-1.html
Bjarne, call up your lawyers!