Oracle America, Inc. v. Google Inc.

Filing 1043

Brief re #1007 Second MOTION for Judgment as a Matter of Law on Sections of Count VIII of Oracle's Amended Complaint GOOGLE'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SECOND MOTION FOR JUDGMENT AS A MATTER OF LAW ON COUNT VIII OF ORACLE'S AMENDED COMPLAINT filed byGoogle Inc.. (Related document(s) #1007 ) (Van Nest, Robert) (Filed on 5/1/2012)

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[e-mail]
CHRISTA M. ANDERSON - # 184325
[e-mail]
DANIEL PURCELL - # 191424
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Telephone:
415 391 5400
Facsimile:
415 397 7188

KING & SPALDING LLP
DONALD F. ZIMMER, JR. - #112279
[e-mail]
CHERYL A. SABNIS - #224323
[e-mail]
101 Second Street, Suite 2300
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

KING & SPALDING LLP
SCOTT T. WEINGAERTNER
(Pro Hac Vice)
[e-mail]
ROBERT F. PERRY
[e-mail]
BRUCE W. BABER (Pro Hac Vice)
1185 Avenue of the Americas
New York, NY 10036
Tel: [phone]
Fax: [phone]

IAN C. BALLON - #141819
[e-mail]
HEATHER MEEKER - #172148
[e-mail]
GREENBERG TRAURIG, LLP
1900 University Avenue
East Palo Alto, CA 94303
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant
GOOGLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ORACLE AMERICA, INC.,

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Plaintiff,

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v.

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GOOGLE INC.,

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Defendant.

Case No. 3:10-cv-03561 WHA
GOOGLE’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
SECOND MOTION FOR JUDGMENT AS
A MATTER OF LAW ON COUNT VIII OF
ORACLE’S AMENDED COMPLAINT
Dept.:
Judge:

Courtroom 8, 19th Floor
Hon. William Alsup

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TABLE OF CONTENTS

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Page

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I.

INTRODUCTION ...............................................................................................................1

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II.

LEGAL STANDARD ..........................................................................................................2

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III.

ARGUMENT .......................................................................................................................2

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A.

The SSO of the 37 API packages is not copyrightable, and Google is
entitled to judgment as a matter of law on the entirety of Oracle’s copyright
count.........................................................................................................................2

B.

Oracle failed to prove the actual contents of the works that are the subject
of its registrations or that the copyrights cover any component parts of the
works. .......................................................................................................................2

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1.

Oracle has not proved the contents of the works that were registered
with the Copyright Office. ...........................................................................2

2.

Oracle has not proved that its copyright registrations cover the
individual components of the works on which it bases its claims of
infringement. ................................................................................................5

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C.

Google is entitled to judgment as a matter of law that the source code and
object code implementing the 37 API packages are not derivative works of
Oracle’s specifications. ............................................................................................7

D.

Google is entitled to judgment as a matter of law that the names and
declarations from the 37 API packages that appear in the Android source
code are not copyrightable. ......................................................................................8

E.

The alleged literal copying is de minimis and thus non-actionable. ........................9

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1.

Oracle failed to prove that Google’s use of the rangeCheck method
is more than de minimis. ............................................................................10

2.

Oracle failed to prove that the use of the allegedly copied comments
in CodeSourceTest.java and
CollectionCertStoreParametersTest.java is more than de minimis. ...........11

3.

Oracle failed to prove that the use of the eight “Impl” and “ACL”
files is more than de minimis. ....................................................................12

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F.

Google is entitled to judgment as a matter of law that its specifications for
the 37 API packages do not infringe Oracle’s copyrights. ....................................14

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1.

The evidence cannot support a finding that Android’s Englishlanguage documentation was copied from the Java API
specifications..............................................................................................14

2.

The evidence cannot support a finding that the SSO of Android’s
English-language documentation was copied from the Java API
specifications..............................................................................................17

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G.

Google is entitled to judgment as a matter of law on Oracle’s claims based
on alleged literal copying, because Oracle failed to prove that either of the
two copyright registrations on which it relies provides protection for the
individual files on which the literal copying claims are based. .............................18

H.

If the Court accepts Oracle’s now-withdrawn “collective work” argument,
Google is entitled to judgment as a matter of law of non-infringement of
each of the component parts of the registered works, because Oracle has
not proved authorship of the constituent elements. ...............................................18

I.

Google is entitled to judgment as a matter of law on the entirety of Oracle’s
copyright count, because Oracle’s copyright claims are barred by the
equitable doctrines of laches, equitable estoppel, waiver and implied
license. ...................................................................................................................19

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IV.

CONCLUSIONS................................................................................................................19

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TABLE OF AUTHORITIES

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Page(s)

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Federal Cases

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Allen v. Academic Games League of Am., Inc.
89 F.3d 614 (9th Cir. 1996) ..................................................................................................... 16

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Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986) ................................................................................................................... 2

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Apple Computer, Inc. v. Microsoft Corp.
35 F.3d 1435 (9th Cir. 1994) ..................................................................................................... 6

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Baker v. Selden
101 U.S. 99 (1879) ................................................................................................................. 7, 8

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Computer Assoc. Int’l, Inc. v. Altai, Inc.
982 F.2d 693 (2d Cir. 1992)....................................................................................................... 9

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Data East USA, Inc. v. Epyx, Inc.
862 F.2d 204 (9th Cir. 1988) ..................................................................................................... 2

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Feist Pubs., Inc. v. Rural Tele. Serv. Co.
499 U.S. 340 (1991) ................................................................................................................. 16

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Incredible Techs., Inc. v. Virtual Techs., Inc.
400 F.3d 1007 (7th Cir. 2005) ................................................................................................. 16

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Johnson v. Gordon
409 F.3d 12 (1st Cir. 2005) ...................................................................................................... 16

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Kodadek v. MTV Networks, Inc.
152 F.3d 1209 (9th Cir. 1998) ................................................................................................... 2

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Lakeside-Scott v. Multnomah County
556 F. 3d 797 (9th Cir. 2005) .................................................................................................. 14

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Mazer v. Stein
347 U.S. 201 (1954) ................................................................................................................... 8

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MiTek Holdings, Inc. v. ArcE Eng’g Co.
89 F.3d 1548 (11th Cir. 1996) ................................................................................................. 10

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Newton v. Diamond
388 F.3d 1189 (9th Cir. 2004) ....................................................................................... 9, 12, 13

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Sega Enters. Ltd. v. Accolade, Inc.
977 F.2d 1510 (9th Cir. 1992) ............................................................................................... 8, 9

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Seiler v. Lucasfilm, Ltd.
808 F.2d 1316 (9th Cir. 1986) ................................................................................................... 2

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Weisgram v. Marley Co.
528 U.S. 440 (2000) ................................................................................................................... 2

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Willis v. Marion County Auditor’s Office
118 F.3d 542 (7th Cir. 1997) ................................................................................................... 15

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Federal Statutes

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17 U.S.C. § 101 ................................................................................................................................ 7

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17 U.S.C. § 102 .............................................................................................................................. 16

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17 U.S.C. § 102(b) ................................................................................................................. 7, 9, 10

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17 U.S.C. § 103(b) ..................................................................................................................... 6, 18

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Federal Rules

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Fed. R. Civ. P. 50 ................................................................................................................... 1, 2, 18

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Federal Regulations

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37 C.F.R. § 202.1(a)......................................................................................................................... 8

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Other Authorities

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4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.01[A] .......................... 6

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I.

INTRODUCTION

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It is time to put Oracle’s copyright claims to rest.

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The structure, sequence and organization (“SSO”) of the API packages at issue is not

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copyrightable, because the SSO is an unprotectable idea, system or method of operation, and

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because any arguable expression in the SSO is unprotectable under the doctrines of merger and

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scenes a faire. The grounds for these conclusions will be given in full in Google’s Proposed

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Findings of Fact and Conclusions of Law, and have been stated in Google’s prior briefs on

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copyrightability. See Dkts. 260, 368, 562, 601, 778, 823, 831, 852, 860, 897, 898, 955, 993.

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In addition, Oracle’s copyright count fails in its entirety because Oracle has not proven the

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contents of the two works at issue that Sun registered with the Copyright Office, versions 1.4 and

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5.0 of Java 2 Standard Edition (“J2SE”). Oracle offered various discs into evidence that

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purportedly contain copies of versions 1.4 and 5.0 of J2SE. It also offered evidence that shows

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that a disc might have been submitted to the Copyright Office along with its application for

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registration of version 5.0. And it offered Dr. Reinhold’s testimony that the source code excerpts

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submitted with the applications come from versions 1.4 and 5.0 of J2SE. But there have been

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multiple releases of each version of J2SE, and Oracle has not offered evidence from which a

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reasonable jury could find that any of the code that is in evidence is a complete copy of the

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actual, specific releases of versions 1.4 and 5.0 that were registered with the Copyright Office.

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This basic failure of proof—and the evidence in the record that contradicts Oracle’s assertion that

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the correct entire works are in the record—prevents Oracle from obtaining any judgment of

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copyright infringement.

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In addition, Google is entitled to judgment as a matter of law on Oracle’s claim that

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Android’s implementing code is a derivative work of Oracle’s 37 API packages, its copyright

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claims based on the names and declarations in those packages, its literal copying claims, and its

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copyright claims based on the specifications (i.e., the documentation) in the 37 API packages.

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For these reasons, Google is entitled to judgment as a matter of law pursuant to Rule 50 of
the Federal Rules of Civil Procedure on the entirety of Count VIII of the Amended Complaint.

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II.

LEGAL STANDARD
Judgment as a matter of law is proper when “a party has been fully heard on an issue

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during a jury trial and the court finds that a reasonable jury would not have a legally sufficient

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evidentiary basis to find for the party on that issue . . . .” Fed. R. Civ. P. 50(a)(1). Rule 50

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“allows the trial court to remove . . . issues from the jury’s consideration when the facts are

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sufficiently clear that the law requires a particular result.” Weisgram v. Marley Co., 528 U.S.

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440, 448 (2000) (internal quotations omitted). The standard for granting judgment as a matter of

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law, in practice, mirrors the standard for granting summary judgment, and “the inquiry under each

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is the same.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).

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III.

ARGUMENT
A.

The SSO of the 37 API packages is not copyrightable, and Google is entitled
to judgment as a matter of law on the entirety of Oracle’s copyright count.

The Court should adopt Google’s proposed findings of fact and conclusions of law
regarding the uncopyrightability of the SSO, which Google will be filing tomorrow. For those
reasons, as well as the reasons stated in Google’s prior briefs, Google is entitled to judgment as a
matter of law that the SSO of the J2SE API packages at issue is not copyrightable. See Dkts. 260,
368, 562, 601, 778, 823, 831, 852, 860, 897, 898, 955, 993.
Google is also entitled to judgment as a matter of law on the remainder of Oracle’s
copyright count—directed to the specifications and the alleged literal copying—for the reasons
given below. Google therefore is entitled to judgment as a matter of law on the entirety of Count
VIII of Oracle’s Amended Complaint.

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B.
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Oracle failed to prove the actual contents of the works that are the subject of
its registrations or that the copyrights cover any component parts of the
works.

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Oracle has not proved the contents of the works that were registered
with the Copyright Office.

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It is a fundamental requirement of a copyright claim that a plaintiff introduce into

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evidence a complete copy of the work on which it suing. See, e.g., Data East USA, Inc. v. Epyx,

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Inc., 862 F.2d 204, 207 (9th Cir. 1988); see also Kodadek v. MTV Networks, Inc., 152 F.3d 1209

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(9th Cir. 1998); Seiler v. Lucasfilm, Ltd., 808 F.2d 1316 (9th Cir. 1986). This requirement is
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especially important in a case such as this, where a complete copy of the work in which the

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copyright is registered cannot be obtained from the Copyright Office. It was up to Oracle to

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prove at trial what the works consist of and which parts of the complete works it owns.

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Oracle has not offered proof sufficient to support a jury verdict regarding the actual

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contents of the works that are the subject of its copyright registrations. More specifically, there is

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no evidence that either trial exhibit 610.2 or 623, the exhibits that Dr. Reinhold sponsored and

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identified as “a DVD containing an electronic copy of the Java 5—the JDK documentation,”

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including “the API specification for Java 5” (TX 610.2), and a DVD containing “the source code

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for Version 5” (TX 623), see RT 672:16-19, 691:14, is in fact a true, complete and accurate copy

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of J2SE version 5.0 as it was when Sun’s application was submitted to the Copyright Office in

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December 2004.

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Dr. Reinhold’s testimony that the DVDs in evidence (TX 622, 623) are source code for

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versions 1.4 and 5.0 of J2SE (RT 691:6-14) does not cure this evidentiary gap, because the

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testimony fails to establish that the DVDs in evidence are in fact the specific releases of these

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versions of J2SE that are covered by the registrations. See RT 2236:9-2237:13 (Reinhold)

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(admitting that there were multiple releases of version 5.0 of Java 2 Standard Edition). Nor could

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Dr. Reinhold testify that trial exhibit 1076, another disc he identified as containing a version 5.0

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of J2SE, contained the particular release of version 5.0 of J2SE that actually was registered with

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the Copyright Office. See RT 2235:10-2238:18. Finally, Dr. Reinhold carefully identified the

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disc marked as TX 1076 as one that contained “the binary distribution of J2SE 5.0, together with

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documentation and some tools and things like that.” RT 2235:11-13 (emphasis added). A

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“binary distribution,” however, is compiled code—bytecode, not source code. Yet the fifty pages

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of redacted deposit materials that accompanied the copyright application for J2SE version 5.0 was

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source code (TX 3530), and Oracle’s entire infringement case (except for the eight allegedly

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copied “Impl”/”ACL” test files) was based on analysis of and allegations of copying of source

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Dr. Reinhold first testified that trial exhibit 623 contained the source code for version 1.4 (RT
689:22-24). After being told by counsel for Oracle that exhibit “623 is the java.nio” (RT 691:13),
Dr. Reinhold changed his testimony, stating that exhibit 623 is “the source code for Version 5.”
RT 691:14.
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code. There is plainly a disconnect between the work that Oracle now says is the work and what

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the evidence shows.

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The disconnect is most troubling, moreover, because—to the best of Google’s knowledge

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after review and analysis of the disc introduced into evidence—the disc that Oracle now says is

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the “complete work” does not contain the source code that was redacted to create the deposit

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materials filed with the Copyright Office. While the disc does contain some of the 37 accused

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API packages in source code format, it does not contain them all; at least six of the 37 packages

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are on the disc only in compiled code—rather than source code—format. So the disc does not

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contain all of the 37 packages at issue in any form that is human-readable. Surprisingly, the disc

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also does not contain source code files that contain the source code pages that were redacted

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and submitted to the Copyright Office. Finally, the disc also does not contain any version, in

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either source or complied code form, of at least one of the eight “test” files on which Oracle bases

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its claim of “direct line-by-line copying,” namely the “AclEnumerator” file. Nor does the disc

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contain a source code version of the “PolicyNodeImpl” file.

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As a matter of common sense, it was incumbent on Oracle to introduce into evidence the works
in some format that is readable by humans; otherwise, there would be no practical way for Oracle
to prove its code-based claims or for Google, the Court or the jury to assess them. This is the
reason why Oracle’s proof at trial was based on source code—readable by humans—and not
compiled code, and why all of the code exhibits the parties showed to the jury consisted of source
code rather than compiled code.
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The testimony of Tiki Dare does not address this failure of proof, because Ms. Dare could not
testify that trial exhibit 1076 is the same as the disc that Oracle believes may have been submitted
to the Copyright Office or, indeed, whether any disc was in fact submitted to the Copyright
Office. See RT 2261:2-10, 2264:4-13. Oracle did not need to prove that any of the discs in
evidence are the same as any disc that was or was not submitted to the Copyright Office in 2004
or 2005, moreover, since the discs were not required by the Copyright Office regulations and the
one disc that the Copyright Office apparently received (for version 1.4) was not even examined.
See TX 3530 at 1. Oracle only needed to prove that some disc that is in evidence in fact contains
the complete work as it existed at the time the registration was sought. Oracle failed to do so.
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The source code that was redacted and submitted to the Copyright Office appears to be taken
from at least 38 different source code files. See TX 3529. As far as Google has been able to
determine, there are no source code files in TX 1076—which Oracle now says is the “complete
work”—that contain any of the pages submitted to the Copyright Office. If the disc does not
contain the files from which the source code deposit was excerpted, the disc cannot be the
complete work that was registered.
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The trial exhibit that Oracle presumably relies on to prove the contents of the “AclEnumerator”
file (TX 896.8)—like the corresponding exhibits for all eight of the “copied” test files (TX 896.1896.8, 897)—bears a legend indicating that the source code in that exhibit comes from release
“5.0u22,” which would be the twenty-second release of version 5.0 after its initial release. See
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Oracle, in short, did not prove that any exhibit in evidence is the actual “work” that is the

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subject of the registrations for either version 1.4 or 5.0 of J2SE. Instead, the evidence

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demonstrates that there is no complete copy of the works at issue in the record. Neither the Court

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nor Google should at this point be forced to speculate what the complete works are—that is a

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fundamental, basic element of Oracle’s proof. Without evidence proving the actual contents of

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the complete works it registered— the contents of the actual works registered, not of releases that

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may bear the same version number but are not the same —Oracle cannot prevail on its copyright

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count. Google is therefore entitled to judgment as a matter of law on the entirety of Count VIII of

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the Amended Complaint.

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2.

Oracle has not proved that its copyright registrations cover the
individual components of the works on which it bases its claims of
infringement.

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Even if Oracle had proven the contents of the complete works, it failed to prove that the

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copyrights cover individual components of the works standing alone. As a result, its rights in

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the works it registered are limited to the specific combination of the individual elements that

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make up those specific versions, and any individual components of the work to which Oracle

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proved it owns the copyrights. Oracle made no such showing.

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RT 2237:6-13 (Reinhold). Dr. Reinhold testified that releases “generally” occurred “every few
months.” RT 2236:19-20. Given that the registration states that the first date of publication of
version 5.0 was on September 30, 2004 (see TX 3529 at 2, space 3b) and that the application was
filed less than ninety days later on December 20, 2004 (see TX 3529 at 2), Dr. Reinhold’s
testimony suggests that release 5.0u22 postdates the registration application.
Thus, there is no evidence that the “decompiled files” are related to files that are in the
work that is the subject of the registration. Indeed, the materials in TX 897 that come from
release 5.0u22 bear copyright notices with dated as late as 2009—five years after the copyright
registration. See TX 897. These exhibits, moreover, were stipulated into evidence at Oracle’s
request. No witness testified about them, see RT 1256:25-1262:1 (Mitchell), and Dr. Reinhold
testified that he could not state when the various releases of version 5.0 occurred or whether any
release after 5.0 was released before December 20, 2004. See RT 2236:9-2237:13.
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Oracle has suggested that Google waived this argument during proceedings outside the presence
of the jury when Dr. Reinhold was on the stand. What counsel for Google said, however, is that
Google is “not disputing ownership of the copyrights.” RT 713:19-20 (emphasis added). This
was directly in response to a statement by counsel for Oracle that “[t]here is no question that
Oracle has the right, as a matter of ownership, to assert the copyrights at issue here.” RT 713:1618 (emphasis added). And that is correct—Google does not dispute that Oracle owns and can
assert the copyrights that it registered, for versions 1.4 and 5.0 of J2SE. What Google disputes is
whether Oracle has proved what is in those works, and whether Oracle’s copyrights cover
particular parts of those works. See RT 1884:10-1885:8 (counsel for Google); RT 1887:16-23
(Court).

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As the registrations confirm, Oracle’s works are derivative works; they include both new

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material and material from prior works, namely the prior versions of the Java platform. See TX

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464 at space 6, TX 475 at space 6 (identifying pre-existing materials and new materials). The

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registrations also establish that Sun did not own at least some parts of the works—they identify

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the “pre-existing” materials as including “licensed-in components.” Id. The registrations and

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materials submitted to the Copyright Office do not, however, identify whether the “licensed-in

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components” were new to the versions being registered, also present in earlier versions, or some

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combination of those two possibilities.

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Section 103(b) of the Copyright Act provides:
(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent of,
and does not affect or enlarge the scope, duration, ownership, or subsistence of,
any copyright protection in the preexisting material.
17 U.S.C. § 103(b) (emphasis added). In order to maintain any claim based on anything less than

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all of version 1.4 or 5.0 of J2SE taken as a whole, Oracle must at a minimum, as part of its burden
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of proving that its copyright covers or extends to the matter sued on, establish that it owns any
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individual component parts on which it is basing a claim. See generally Apple Computer, Inc. v.
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Microsoft Corp., 35 F.3d 1435, 1447-48 (9th Cir. 1994); 4 MELVILLE B. NIMMER & DAVID
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NIMMER, NIMMER ON COPYRIGHT § 13.01[A] (a plaintiff that is not the author of a work must
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prove “a transfer of rights or other relationship between the author and the plaintiff so as to
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constitute the plaintiff as the valid copyright claimant”). For purposes of this action, those parts
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would include (1) the 37 packages that form the basis of Oracle’s SSO claim; (2) the files that
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contain the English-language comments on which Oracle bases its “specifications” claim; and
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(3) the individual files that contain all of the code and comments that were allegedly copied
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literally.
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These principles are best illustrated by a simple example. Oracle claims that the eight test
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files that appear in Android were “copied” from its work. In order to sustain a claim that asks the
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Court to treat each individual file as the “work as a whole” for purposes of Oracle’s allegations,
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Oracle must have proven that (1) each file is in fact a part of the version of the work on which it

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is suing; and (2) Oracle owns all rights to each file as a standalone work. Oracle proved neither

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one.

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C.

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Google is entitled to judgment as a matter of law that the source code and
object code implementing the 37 API packages are not derivative works of
Oracle’s specifications.

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Oracle claims that Google’s implementing source code is a derivative work of Oracle’s

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English-language descriptions because Google’s source code does the things that the English

8

descriptions describe. See Dkt. No. 859 at 10 (Oracle is claiming infringement based on

9

“Google’s creation of derivative works from the English-language descriptions of the elements in

10

the API specifications”). That is nothing but an assertion that Google’s expression infringes

11

Oracle’s ideas. Oracle thus stands as an exception to the Supreme Court’s statement that “no one

12

would contend that the copyright of the treatise would give the exclusive right to the art or

13

manufacture described therein.” Baker v. Selden, 101 U.S. 99, 102 (1879).

14

Because Oracle’s position is barred by section 102(b) of the Copyright Act, Google is

15

entitled to judgment as a matter of law that the source code and object code implementing the 37

16

API packages are not derivative works of Oracle’s specifications. See 17 U.S.C. § 102(b). This

17

issue raises a question of law that does not depend on any disputed issues of fact.

18

Oracle’s derivative work claim is a “classic case of trying to lay claim to the ownership of

19

an idea.” RT 1869:15-16 (Court). The specifications “explain in detail what the module is

20

supposed to accomplish,” and writing implementing code that does what the specifications

21

explain is like “creative writing.” RT 1869:18-21 (Court); see also RT 1368:25-1369:1 (Court)

22

(Oracle’s derivative work argument “just seems to me to be invalid under the basic tenets of

23

copyright law”); RT 1375:22-24 (Court) (Oracle’s derivative work claim doesn’t “add[] anything,

24

except violating the principle of you can’t get a monopoly and ownership over an idea”); RT

25

2434:13-2435:16 (Court) (rejecting Oracle’s derivative work theory).

26

Oracle’s derivative work claim is contrary to the idea/expression dichotomy that is

27

codified in section 102(b) of the Copyright Act. It also is contrary to the statutory definition of a

28

derivative work, which is a work based on “one or more preexisting works,” 17 U.S.C. § 101, not
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a work based on preexisting ideas.

2

Oracle’s approach is barred by Baker v. Selden:

3

6

To give to the author of the book an exclusive property in the art described therein,
when no examination of its novelty has ever been officially made, would be a
surprise and a fraud upon the public. That is the province of letters-patent, not of
copyright. The claim to an invention or discovery of an art or manufacture must
be subjected to the examination of the Patent Office before an exclusive right
therein can be obtained; and it can only be secured by a patent from the
government.

7

101 U.S. at 102. It is also barred by Mazer v. Stein: “Unlike a patent, a copyright gives no

8

exclusive right to the art disclosed; protection is given only to the expression of the idea—not the

9

idea itself.” 347 U.S. 201, 217 (1954). And it is barred by Sega Enters. Ltd. v. Accolade, Inc.,

4
5

10

under which “functional requirements for compatibility” with a system described by or

11

implemented in a copyrighted work cannot be protected by copyright law. 977 F.2d 1510, 1522

12

(9th Cir. 1992).

13

D.

14

Google is entitled to judgment as a matter of law that the names and
declarations from the 37 API packages that appear in the Android source
code are not copyrightable.

15

The Court has already held that the names of API elements are not protectable. Copyright

16

MSJ Order [Dkt. 433] at 7:24-8:4. The Court reached this holding based on the “words and short

17

phrases” doctrine. See id.; 37 C.F.R. § 202.1(a).
7

18

For the same reason, the declarations (i.e., the method signatures) in the 37 API packages
8

19

are not protectable. A declaration (e.g., “public static int max(int arg1, int arg2)” ) is a short

20

series of words—a short phrase. A short phrase is not protectable, just as a name cannot be

21

protected. 37 C.F.R. § 202.1(a); see also Copyright MSJ Order [Dkt. 433] at 7:24-8:4. Indeed, in

22

Sega, the Ninth Circuit held that computer code of a similar length was “probably unprotected

23

under the words and short phrases doctrine.” 977 F.2d at 1524 n.7.

24

Moreover, the declarations are purely functional, and must remain exactly the same in

25

order to ensure compatibility with Java language programs calling on the methods in those 37

26

API packages. Because computers are very literal, “[i]f you get anything even a little bit wrong,

27

7

28

8

RT 796:2-25 (Bloch) (explaining what a method signature, or declaration, is).
RT 796:19:21 (Bloch).
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if you type a capital letter when the method name has lower case letter in Java your program

2

won’t run.” RT 765:6-8 (Bloch). In contrast, as Oracle’s expert Professor Mitchell conceded, if

3

you implement an API consistent with its specification—i.e., so that “it uses the same API”—

4

“you would expect the same outcome.” RT 2293:5-8.

5

Thus, code written that uses methods from the 37 packages is “compatible” with both the

6

Android and J2SE platforms. See RT 2293:9-14 (Mitchell) (agreeing that this is “a great

7

definition of ‘compatible’); see also RT 2185:5-9 (Astrachan) (structure of the elements of the

8

API packages have to be the same “so that the code will work on both platforms, be compatible,

9

inter-operate”). If Google had instead created its own APIs that were different than the APIs in

10

the 37 API packages, developers would have had to be re-educated to use the new APIs. See RT

11

520:3-6 (Screven). Because Google implemented the Java language APIs for the 37 API

12

packages, the Android and J2SE platforms are compatible with respect to those 37 API packages.

13

RT 2171:19-2172:11 (Astrachan); see also RT 2287:23-2288:5 (Mitchell) (J2SE core libraries

14

and Android core libraries are incompatible “beyond the 37 packages,” but for the 37 packages

15

they “overlap”). Because the names and declarations in the 37 API packages are functional

16

requirements for compatibility, those names and declarations are not protected by copyright.

17

Sega, 977 F.2d at 1522 (citing 17 U.S.C. § 102(b)).

18

In sum, the names and declarations from the 37 API packages are unprotectable both by

19

virtue of the words and short phrases doctrine, and section 102(b) of the Copyright Act. Thus,

20

Google is entitled to judgment as a matter of law that its use of the names and declarations from

21

the 37 API packages is not copyright infringement.

22

E.

23

De minimis acts of copying are not actionable. Newton v. Diamond, 388 F.3d 1189, 1192-

The alleged literal copying is de minimis and thus non-actionable.

24

93 (9th Cir. 2004). Where the only similarity is as to “nonessential matters,” the copying is de

25

minimis. See id. at 1195 (quoting 4 NIMMER ON COPYRIGHT § 13.03[A][2]). Where a defendant

26

copies only “a portion of the plaintiff’s work exactly or nearly exactly . . . the dispositive question

27

is whether the copying goes to trivial or substantial elements.” Id. That substantiality is judged

28

by “considering the qualitative and quantitative significance of the copied portion in relation to
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the plaintiff’s work as a whole.” Id. (emphasis added); see also Computer Assoc. Int’l, Inc. v.

2

Altai, Inc., 982 F.2d 693, 714-15 (2d Cir. 1992). Oracle bears the burden of proving the

3

significance of any copied code. MiTek Holdings, Inc. v. ArcE Eng’g Co., 89 F.3d 1548, 1560

4

(11th Cir. 1996) (“The burden is on the copyright owner to demonstrate the significance of the

5

copied features, and, in this case, MiTek has failed to meet that burden.”).

6

Oracle hired Dr. Marc Visnick to compare the code in the Java JDK to Android 2.2. RT

7

1309:8-1310:18 (Mitchell). This entailed a comparison of hundreds of thousands, or even

8

millions, of lines of code as well as “thousands and thousands” of separate files. RT 1310:19-

9

1311:1 (Mitchell). Despite this “very extensive” search, RT 1310:24-1311:1, Dr. Visnick only

10

identified 12 files that allegedly contained copied code. See RT 1313:1-11 (Mitchell). These

11

files consist of a nine-line function called rangeCheck, two comment files that never appeared on

12

a phone, and ten test files that never appeared on a phone. See RT 1314:2-1320:6 (Mitchell).

13
14

1.

Oracle failed to prove that Google’s use of the rangeCheck method is
more than de minimis.

The evidence cannot support a finding that the nine-line rangeCheck method is
15
qualitatively significant. RT 813:7-8 (Bloch) (rangeCheck is a “very short simple method); RT
16
815:5-9 (Bloch) (rangeCheck “simply makes these three checks”); RT 815:13-16 (Bloch)
17
(rangeCheck is a “[v]ery, very simple” method that “[a]ny competent high school programmer
18
could write”). Even Oracle’s expert Dr. Mitchell conceded that “a good high school
19
programmer” could write rangeCheck. RT 1316:24-25. In fact, the rangeCheck method is not
20
even a part of the most recent and current versions of Android. See RT 825:8-19 (Bloch). When
21
asked whether the rangeCheck method has any economic significance outside of the library it is a
22
part of, Dr. Mitchell stated that he was “not sure” it had any such significance. RT 1316:12-18.
23
Even within the library, Dr. Mitchell did not opine that it was significant, only that it was
24
“useful.” Id. The purported subtlety to the code, according to Dr. Mitchell, “is figuring out
25
exactly what you wanted the function to do, more than realizing that function in Java code once
26
that’s understood.” RT 1317:3-5. That, however, confirms that while the idea underlying the
27
code might have some importance, the code itself is not qualitatively significant. The idea, of
28
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course, is not copyrightable. 17 U.S.C. § 102(b).

2

Dr. Mitchell also testified that the rangeCheck method is purportedly called over 2,600

3

times when an Android emulator is started up. See RT 1329:15-21. But he offered no testimony

4

that would allow a reasonable jury to conclude that a method called that many times is

5

qualitatively significant. He offered no testimony, for example, whether there are other methods

6

that are called tens of thousands of times, hundreds of thousands of times, or even millions of

7

times during startup. Nor did he offer any testimony about the qualitative significance of the calls

8

to rangeCheck. Mere frequency of use of a trivial element cannot support a finding of qualitative

9

significance. A typical novel might include the word “the” thousands of times, but that does not

10

render the word “the” qualitatively significant to Moby Dick. During a business meeting,

11

attendees might blink their eyes hundreds or thousands of times, but that does not mean the act of

12

blinking was qualitatively significant. Professor Mitchell’s testimony about how many times

13

rangeCheck is purportedly called during the startup of an Android emulator, standing alone and

14

without any frame of reference, cannot support a finding of qualitative significance.

15

The evidence also cannot support a finding that the nine-line rangeCheck method is

16

quantitatively significant. The rangeCheck method is only nine lines long—thirteen lines, if four

17

lines of comments are included. TX 623 at 25 (lines 1314-26). The Arrays.java file in J2SE that

18

includes this method is 3,179 lines long. TX 623 at 61 (final line number in file is 3,179). Thus,

19

even assuming Oracle’s “work as a whole” is just the Arrays.java file, the method is less than

20

three-tenths of one percent of the work as a whole.

9

Because Oracle has not proven that the rangeCheck method is qualitatively or

21
22

quantitatively significant, its use is at most de minimis, and therefore not actionable.

23

2.

24

Oracle failed to prove that the use of the allegedly copied comments in
CodeSourceTest.java and CollectionCertStoreParametersTest.java is
more than de minimis.

The evidence cannot support a finding that the allegedly copied comments in

25
26

CodeSourceTest.java and CollectionCertStoreParametersTest.java are qualitatively significant.

27

9

28

Google continues to assert that the works as a whole should, for all purposes, be the entire
platforms registered by Sun. See, e.g., Dkt. 993.
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Because they are comments, they have absolutely no effect on any compiled code. See RT

2

1317:6-14 (Mitchell). All that Dr. Mitchell was able to say is that “comments are for other

3

programmers or users of the code.” RT 1317:24-25. But whether comments generally can offer

4

guidance to programmer fails to address whether these comments offer qualitatively significant

5

guidance to programmers. There is no evidence of the purported qualitative significance of these

6

comments.

7

The evidence also cannot support a finding that the comments are quantitatively

8

significant. The comments at issue are less than three percent of one file, and only one quarter of

9

the other. See TX 623.9, 623.10.

10

The ultimate test is that alleged copying is de minimis “if the average audience would not

11

recognize the appropriation.” Newton, 388 F.3d at 1193. Here, there is no evidence that anyone

12

even noticed the alleged copying until an extensive forensic analysis was performed, using

13

specialized computer tools. See RT 1309:8-1313:11 (Mitchell) (testifying about Dr. Visnick’s

14

forensic analysis). On this record, no reasonable jury could find that the average audience would

15

recognize the alleged appropriation in these files.

16

Finally, Google again notes that, as it has addressed in its prior briefs, the proper “work as

17

a whole” is the entire registered work, or at least that there is no evidence supporting using the

18

individual files as the works as a whole. Because the work as a whole should be larger than the

19

individual files, the allegedly copied comments are even more quantitatively insignificant.

20

Because Oracle has not proven that the allegedly copied comments are qualitatively or

21

quantitatively significant, Google’s use of them is at most de minimis, and thus not actionable.

22

3.

23

Oracle failed to prove that the use of the eight “Impl” and “ACL” files
is more than de minimis.

Oracle failed to prove that there was any copying (let alone copying of more than a de
24
minimis amount) from Oracle’s works as a whole for these eight files, even assuming that the
25
individual Oracle files are the proper works as a whole for this analysis. Oracle offered into
26
evidence the source code for seven Oracle “Impl” files. See TX 623.2-623.8.

10

Oracle does not

27
10

28

Oracle did not introduce into evidence the source code for any file named
“AclEnumerator.java,” only what appears be a decompiled file named “AclEnumerator.jad.”
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claim, however, that Google copied anything from these source code files. Instead, Oracle argues

2

that Google copied from object code using a decompiler. See RT 1257:3-1258:6 (Mitchell). Dr.

3

Mitchell testified that the source code in the eight Android “Impl” and “ACL” files is similar to

4

the decompiled versions of certain Oracle object code files. See RT 1259:16-1260:18. Dr.

5

Mitchell did not testify, however, that the object code files he examined are the compiled versions

6

of the source code files in evidence as trial exhibits 623.2-623.8. See id.

7

Oracle also moved into evidence by stipulation what appear to be decompiled versions of

8

the eight “Impl” and “ACL” files, with filenames ending in “.jad”. See RT 1153:8-13; TX 896.1-

9

896.8. There was, however, no testimony explaining what these files are. Moreover, Dr. Mitchell

10

did not identify the names of the allegedly copied Oracle files that he purportedly examined. See

11

RT 1259:16-1260:18. In fact, Dr. Mitchell did not even testify that the unnamed Oracle files he

12

examined were part of either of the registered works at issue in this case. See RT 1259:16-

13

1260:18. Because of this failure of proof, Oracle has not established that the eight Android

14

“Impl” and “ACL” files involved more than de minimis copying from any files that are part of

15

either of the registered works at issue in this case or are owned by Oracle.

16

Moreover, as with the comments, there is no evidence that anyone noticed the alleged

17

copying in the eight “Impl” and “ACL” files until an extensive forensic analysis was performed,

18

using specialized computer tools. See RT 1309:8-1313:11 (Mitchell) (testifying about Dr.

19

Visnick’s forensic analysis). Thus, there is no evidence that the average audience would

20

recognize the alleged appropriation. See Newton, 388 F.3d at 1193. Oracle therefore as not

21

proven that the alleged copying was more than de minimis.

22

Furthermore, Oracle offered no evidence that the code in these files is qualitatively

23

significant. Dr. Mitchell testified that the code has some connection to access control lists, which

24

relate to security. See RT 1329:22-1330:5. He did not, however, explain what the code does, or

25

why it is qualitatively significant. Moreover, Dr. Mitchell testified that he had no reason to

26

believe that these files were ever placed on a handset. See RT 1319:15-20. There is no other

27
28

There is no evidence in the record that this eighth allegedly copied file, “AclEnumerator.java,” is
part of either of the two registered works at issue in this case. See n.5, supra.
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evidence in the record suggesting that these files were ever placed on a handset. There is also no

2

evidence in the record that these files had any significance at all to the functioning of either J2SE

3

or Android.

4

11

Finally, properly compared to the proper works as a whole, as addressed by Google’s

5

prior briefs, the code in these eight files is quantitatively insignificant whether considered

6

individually or collectively.

7

F.

8

Google is entitled to judgment as a matter of law that its specifications for the
37 API packages do not infringe Oracle’s copyrights.

Oracle alleges that Google’s specifications (i.e., the documentation) for the 37 accused
9
API packages infringe Oracle’s copyrights. Specifically, Oracle alleges that (a) the substance of
10
Android’s English-language documentation infringes; and (b) the SSO of that documentation also
11
infringes. The Court should grant judgment as a matter of law as to the first allegation because
12
the evidence cannot support a finding that the contents of the documentation describing the 37
13
accused API packages in Android was copied from the J2SE documentation. The Court should
14
also dismiss the second allegation because it simply collapses into Oracle’s claim that Google
15
copied the SSO of the 37 accused API packages; the documentation is generated by an automated
16
program, such that the SSO of the documentation is a natural derivative of the SSO of the API
17
packages it represents. See RT 1169:3-4 (Lee). Moreover, the second allegation is barred
18
because, for the reasons stated in Google’s proposed findings of fact and conclusions of law, the
19
SSO of the 37 accused API packages is not copyrightable.
20
1.

21

The evidence cannot support a finding that Android’s Englishlanguage documentation was copied from the Java API specifications.

22

Oracle presented evidence of precisely three examples of alleged substantial similarity

23

between Google’s and Oracle’s specifications for the 37 API packages. A “mere scintilla” of

24

11

25
26
27
28

Dr. Mitchell did testify that test files generally are an important part of software development.
RT 1330:15-24. However he never testified as to how many test files there are in J2SE or
Android, or to the role played by these particular test files. The best Dr. Mitchell could do was to
state that “if [these files] helped [Google] test other code they were developing, and speed up and
lessen the cost of testing and quality assurance, then that would have a big value to [Google].”
RT 1331:3-5 (emphasis added). There is no evidence in the record that these eight files, out of
the tens of thousands of files in both Android and J2SE, were anything other than trivial and
insignificant.
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evidence is insufficient to support a jury verdict. See Lakeside-Scott v. Multnomah County, 556

2

F.3d 797, 802 (9th Cir. 2005) (quoting Willis v. Marion County Auditor’s Office, 118 F.3d 542,

3

545 (7th Cir. 1997)). Oracle’s three examples—out of over 11,000 pages of specifications (RT

4

617:2-7 (Reinhold)) —cannot support a jury verdict.

12

5

In its first example, Oracle focused on the descriptions in the J2SE and Android

6

specifications for the CipherInputStream class in the javax.crypto package. Counsel for Oracle

7

asked Bob Lee to compare the following portions of the descriptions of CipherInputStream in the

8

J2SE 5.0 and Android specifications:

9
10
11
12
13

J2SE 5.0
A CipherInputStream is composed of an
InputStream and a Cipher so that read()
methods return data that are read in from the
underlying InputStream but have been
additionally processed by the Cipher. The
Cipher must be fully initialized before being
used by a CipherInputStream.

14

Android
This class wraps an InputStream and a cipher
so that read() methods return data that are read
from the underlying InputStream and
processed by the cipher.
The cipher must be initialized for the requested
operation before being used by a
CipherInputStream.

15

Compare TX 610.2 with TX 767; see also RT 1169:25-1170:19 (Lee). These are sufficiently

16

different that no reasonable jury could find that they are virtually identical. Oracle’s second and

17

third examples are no better. See RT 1171:3-1172:25 (Lee) (comparing descriptions in the

18

Android and J2SE specifications for the Cipher class in the javax.crypto package); RT 1174:17-

19

1175:9 (Lee) (comparing descriptions in the Android and J2SE specifications for the Pipe class in

20

the java.nio.channels package).

21
22

As Mr. Lee explained, any similarities between the specifications are to be expected,
given that the thing being described is the same in both specifications:

23

Q.

24

A.
In this case they contain the same words, certainly, but that’s to be
expected when you’re trying to—you’re describing various specific concepts in as
few words as possible. You’re trying to provide, like, a very concise explanation.

25

Highly similar? Not so similar? What’s your judgment?

26
27
28

12

The 11,000 page figure is the length of the specifications for just the 37 API packages. The
specifications for all 166 API packages of the J2SE 5.0 platform presumably are several-fold
longer, and the size of the J2SE 5.0 platform as a whole is larger still.
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Like, for example, the first sentence. What is a pipe, in one sentence.
Certainly, if you’re trying to do it in that few words, they are going to contain
similar words because these are kind of, I guess, the common language or
currency of these APIs and simply the technology.

2
3
4

Like, “pipe” isn’t even actually a—it’s not necessarily a Java term. It
predates Java.

5

Q.

So you would—

6

A.

Like, it’s a common technical term.

7

RT 1175:10-24 (Lee). On these facts, any protection in the descriptions in the J2SE 5.0

8

specifications is, at best, thin, and protected only against virtually identical copying. See Allen v.

9

Academic Games League of Am., Inc., 89 F.3d 614, 618 (9th Cir. 1996) (applying merger doctrine

10

to deny protection to written expression of game rules); Incredible Techs., Inc. v. Virtual Techs.,

11

Inc., 400 F.3d 1007, 1013 (7th Cir. 2005) (“utilitarian explanations” of a system “are not

12

sufficiently original or creative to merit copyright protection,” or alternatively are protected “only

13

against virtually identical copying”).

14

J2SE specifications are virtually identical.

13

And no reasonable jury could find that the Android and

Professor Mitchell’s testimony does not help Oracle’s case because he did not apply the

15
16

correct standard. When asked whether the description “Returns a reference to the private key

17

component of this key pair” (J2SE) is substantially similar to the description “Returns the private

18

key” (Android), Professor Mitchell testified, “I think if you were considering using this method,

19

both would tell you the same information, that you can use this method to get the private key

20

component of the key pair.” RT 1327:14-24, 1328:2-4 (emphasis added). When asked again, he

21

testified, “I think in the context of the rest of the description they mean the same thing.” RT

22

1328:9-10 (emphasis added). When asked a third time whether the descriptions are substantially

23

similar, and directed by the Court to answer “yes” or “no,” Professor Mitchell responded, “Yes.”

24

RT 1328:24. The only reasonable conclusion that a jury can draw from this series of responses is

25

that Professor Mitchell is basing his conclusion of substantial similarity on the fact that both

26

13

27
28

See also Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005) (“copyright law protects original
expressions of ideas but it does not safeguard either the ideas themselves or banal expressions of
them” (emphasis added) (citing Feist Pubs., Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 345-51
(1991)).
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descriptions express the same idea. That, however, is not infringement. See 17 U.S.C. § 102.

2

Moreover, as the Court has held, the test for infringement for the documentation is “virtual

3

identity.” Because Professor Mitchell did not opine that the documentation for Android and J2SE

4

are virtually identical, it cannot support a jury verdict. Professor Mitchell’s opinion about alleged

5

substantial similarity between the Android and J2SE specifications must therefore be disregarded

6

entirely.

7
8

Given the thin protection for these descriptions, no reasonable jury could conclude that the
Android specifications infringe Oracle’s copyrights.

9

2.

10

The evidence cannot support a finding that the SSO of Android’s
English-language documentation was copied from the Java API
specifications.

11

Oracle elicited testimony that the SSO of the documentation for the 37 accused API

12

packages lines up with that of the corresponding Java documentation. Mr. Lee testified as

13

follows:

14
15
16
17
18
19

Q.
And the structure of the documentation is identical; correct, sir? And if
you think of it as an outline, the outline would match identically; correct, sir?
A.

Yes.

Q.
And that’s because on the Android side you're documenting the same
application programming interfaces as were documented on the Java side; correct,
sir?
A.

Yes.

RT 1174:9-16. But this is no surprise. As Mr. Lee also testified, the documentation for both
20
J2SE and Android is created automatically by a tool that reads demarcated portions of the source
21
code for inclusion in a template. See RT 1168:21-1169:15 (Lee). In short, the creation of the
22
documentation is mechanized. See RT 607:18-24, 614:1-4 (Reinhold). Since the documentation
23
is based on the same starting point—the names of the methods in the 37 API packages at issue—
24
the SSO of the Android and J2SE documentation inevitably will be the same.
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Given that the documentation is generated automatically, Oracle’s allegation that the SSO
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of the Android documentation infringes Oracle’s copyrights on the J2SE specification collapses
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into Oracle’s separate, overriding claim that Google’s use of the names in the 37 API packages
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GOOGLE’S MEMO. OF POINTS & AUTHORITIES IN SUPPORT OF SECOND COPYRIGHT JMOL
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infringes Oracle’s copyrights in the SSO of its API packages. Similarities in the SSO of the

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documentation are an inevitable byproduct of using the same names in those API packages and

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their elements; they are not a separate act of infringement. Put another way, the similarities

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derive from Google’s use of the names in the 37 API packages at issue, not from a separate act of

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copying any Oracle documentation for those 37 API packages. Accordingly, Oracle’s separate

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claim that the SSO of the documentation infringes should be dismissed as a matter of law, leaving

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the actual issue—Google’s use of the names in the 37 accused API packages—for the jury to

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decide.

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G.

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Google is entitled to judgment as a matter of law on Oracle’s claims based on
alleged literal copying, because Oracle failed to prove that either of the two
copyright registrations on which it relies provides protection for the
individual files on which the literal copying claims are based.

As noted above in Part III.B.2, Sun’s registration of the works as derivative works means
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that, absent proof that it owns individual components, Oracle’s copyright in version 5.0 “extends
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only to material contributed by [Sun, as] the author of the derivative work.” See 17 U.S.C.
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§ 103(b). Over Google’s objection, Oracle convinced the Court to define the “works as a whole”
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for its literal copying claims as the individual files in which the allegedly copied materials (code
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or comments) appear in version 5.0 of J2SE. Oracle made no attempt to prove that it owns any of
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those individual files, let alone when those files and the allegedly copied material were first added
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to the J2SE platform. See Part III.B.2, supra. Absent such proof, Oracle’s claims based on
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copying of specific files as separate protected works must fail.
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If the Court accepts Oracle’s now-withdrawn “collective work” argument,
Google is entitled to judgment as a matter of law of non-infringement of each
of the component parts of the registered works, because Oracle has not
proved authorship of the constituent elements.

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Oracle has now confirmed that it has withdrawn its “collective work” argument. If Oracle

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H.

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had not done so, and had the Court accepted the “collective work” argument, Google would be

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entitled to judgment as a matter of law of non-infringement of each of the component parts of the

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registered works, because Oracle has not proved authorship of the constituent elements, for the

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reasons set forth in Google’s prior Rule 50 motion. See Dkt. 984 at 11-12.

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GOOGLE’S MEMO. OF POINTS & AUTHORITIES IN SUPPORT OF SECOND COPYRIGHT JMOL
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I.

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Google is entitled to judgment as a matter of law on the entirety of Oracle’s
copyright count, because Oracle’s copyright claims are barred by the
equitable doctrines of laches, equitable estoppel, waiver and implied license.

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The Court should adopt the proposed findings of fact and conclusions of law regarding

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Google’s equitable defenses that Google will be filing tomorrow. For those reasons, Google is

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entitled to judgment as a matter of law that Oracle’s copyright claims are barred by the equitable

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doctrines of laches, equitable estoppel, waiver and implied license.

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IV.

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CONCLUSIONS
For the foregoing reasons, Google respectfully requests that the Court grant its motion for

judgment as a matter of law on the entirety of Count VIII of Oracle’s Amended Complaint.

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Dated: May 1, 2012

KEKER & VAN NEST LLP

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By:

/s/ Robert A. Van Nest
ROBERT A. VAN NEST

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Attorneys for Defendant
GOOGLE INC.

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GOOGLE’S MEMO. OF POINTS & AUTHORITIES IN SUPPORT OF SECOND COPYRIGHT JMOL
Case No. 3:10-cv-03561 WHA
660843.01