Oracle America, Inc. v. Google Inc.

Filing 1197

Brief re #1192 Trial Brief Oracle's May 24, 2012 Copyright Reply Brief filed byOracle America, Inc.. (Related document(s) #1192 ) (Jacobs, Michael) (Filed on 5/24/2012)

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MORRISON & FOERSTER LLP
MICHAEL A. JACOBS (Bar No. 111664)
[e-mail]
KENNETH A. KUWAYTI (Bar No. 145384)
[e-mail]
MARC DAVID PETERS (Bar No. 211725)
[e-mail]
DANIEL P. MUINO (Bar No. 209624)
[e-mail]
755 Page Mill Road, Palo Alto, CA 94304-1018
Telephone: [phone] / Facsimile: [phone]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
[e-mail]
333 Main Street, Armonk, NY 10504
Telephone: [phone] / Facsimile: [phone]
STEVEN C. HOLTZMAN (Bar No. 144177)
[e-mail]
1999 Harrison St., Suite 900, Oakland, CA 94612
Telephone: [phone] / Facsimile: [phone]
ORACLE CORPORATION
DORIAN DALEY (Bar No. 129049)
[e-mail]
DEBORAH K. MILLER (Bar No. 95527)
[e-mail]
MATTHEW M. SARBORARIA (Bar No. 211600)
[e-mail]
500 Oracle Parkway, Redwood City, CA 94065
Telephone: [phone] / Facsimile: [phone]
Attorneys for Plaintiff
ORACLE AMERICA, 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.

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ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
CASE NO. CV 10-03561 WHA
pa-1530188

Case No. CV 10-03561 WHA
ORACLE’S MAY 24, 2012
COPYRIGHT REPLY BRIEF
Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup

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Android is not interoperable with Java. Java applications cannot run on Android.

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Android applications cannot run on Java. This was intentional. Google did not want an

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interoperable platform and offers no proof it set out to create one. Google took only what it

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wanted, hijacking the Java developers by using their familiarity with the Java APIs to get them to

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program for Android. Google’s “compatibility” claim is not supported by the law or the facts.

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I.

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INTERFACES AND EXCEPTIONS
The parties agree that Android Froyo includes 158 of the 171 interfaces from the 37 API

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packages in J2SE 5.0. ECF No. 1192 at 1. This illustrates not just the extent of Google’s

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copying, but also that Google selected the interfaces it wanted to copy. Google’s failure to

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implement all of the interfaces puts the lie to Google’s claim that “the public interfaces in the 37

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API packages are functionally required for compatibility with the APIs in those packages.” Id. at

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3. Google’s copying served its own business goals and was not compelled by any compatibility

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requirement, functional or otherwise. In fact, Google deliberately chose not to be compatible.

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Google’s example of the Comparable interface demonstrates this as well. The Java

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programming language does not require a Comparable interface (TX 1062), and it did not exist in

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Java before version 1.2 (ECF No. 1192-3 at line 79), so Google did not have to copy it. In J2SE,

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50 classes in a variety of packages implement the Comparable interface. Android copies this

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same structure, but omits a few of the 50 classes. For example, the classes CompositeName and

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CompoundName from the javax.naming API package each implement Comparable, but Android

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does not include that package. See TX 610.2 at docs\api\java\lang\Comparable.html.

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The parties count different numbers of exceptions, but they agree Google copied over

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1250 throws clauses. See ECF No. 1192 at 1. Oracle’s exception count shows Google again

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copied almost all, but not all, of the throws clauses exactly, further confirming that compatibility

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requirements did not drive its extensive copying. Google gives the example of the

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FileNotFoundException, which is not required by the Java programming language (TX 1062), but

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was included in Android anyway. Google failed to include other exceptions defined in J2SE 5.0,

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such as RefreshFailedException, which is part of Java’s API package javax.security.auth but not

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ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
CASE NO. CV 10-03561 WHA
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Android’s version of the package. Compare TX 610.2 at docs\api\javax\security\auth\package-

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summary.html with TX 767 at javax\security\auth\package-summary.html.

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II.

ANDROID AND JAVA ARE NOT INTEROPERABLE

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Android is not interoperable with Java. Surely it is a huge red flag that in response to the

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Court’s questions about interoperability, Google resorts to claiming Android is “compatible with

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the skills and expectations of Java language programmers.” ECF No. 1192 at 7.

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Google states there is no quantitative data in the record showing the extent to which

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applications written for one platform will run on the other. Id. at 5. Actually, there is. The

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testimony of both parties’ experts is 0%. See ECF No. 1191 at 4-5. Google could not identify a

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single application at trial or in its brief that can run on both platforms. But the record contains

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plenty of evidence of simple applications that will not run on both platforms because Google left

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out many Java API packages, apparently in favor of its own “better” APIs. See id. at 3-7.

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Google can point only to the short piece of code Dr. Astrachan wrote at trial, and his

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testimony that “For those 37 packages, the code that I write on one platform will run on the other

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platform.” ECF No. 1192 at 5. As discussed in Oracle’s opening brief, even this is not true, as

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Dr. Astrachan himself admitted. See ECF No. 1191 at 3-6. Moreover, Google presented no

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evidence at trial that its selective API copying will allow the reuse of a significant number of such

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code fragments. It cites only to Dan Bornstein’s vague statement that “there’s a lot source code

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out there that wasn’t—you know, wasn’t written by—well, that was written by lots of people that

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already existed that could potentially work just fine on Android.” ECF No. 1192 at 6. Google

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now claims it selective copying “reduced the effort required to ‘port’ an application” from Java to

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Android in a way that is “similar” to what is necessary to port an application from one Java

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platform to another. Id. But the record contains no evidence at all of the effort required to port

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code from one Java platform to another, or how that compares with porting code from Java to

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Android. Google’s quotation from Dr. Reinhold has nothing to do with this point. See id.

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Google fails to identify any evidence in the record that its copying motive was

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interoperability. Google cites to only two things. The first is Dan Bornstein’s testimony that the

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goal was not to create interoperability but only to “provide something that was familiar to
ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
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developers.” ECF 1192 at 7 (quoting RT 1783:19-21 (Bornstein)). Mr. Bornstein confirms

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immediately before and after this sentence that it was not a goal to implement all of the packages

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in any Java platform. See RT 1783:15-22 (Bornstein). Google also cites the Noser statement of

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work, which it quotes as stating Google “was ‘interested in compatibility with J2SE 1.5…..’”

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ECF No. 1192 at 7 (emphasis in original). But the document requires Noser to provide only a

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subset of packages, and makes clear Google never intended to fully implement even those, stating

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Google will deliver “a ‘detailed minimum list of methods and classes to be implemented.’”

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TX 2765 at 21-22. Google wanted to capture Java developers, not achieve interoperability.

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III.

GOOGLE DISTORTS THE NINTH CIRCUIT’S HOLDING IN SEGA

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Sega is a fair use case. The Ninth Circuit summarized its holding as follows:

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We conclude that where disassembly is the only way to gain access to the ideas
and functional elements embodied in a copyrighted computer program and where
there is a legitimate reason for seeking such access, disassembly is a fair use of the
copyrighted work, as a matter of law. Our conclusion does not, of course, insulate
Accolade from a claim of copyright infringement with respect to its finished
products.

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Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1527-28 (9th Cir. 1993).
Google seizes on the court’s statement that “Accolade copied Sega’s software solely in

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order to discover the functional requirements for compatibility with the Genesis console―aspects

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of Sega’s programs that are not protected by copyright.” Id. at 1522. But that statement does not

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help it here. First, Google did not copy the Java APIs to “discover” anything. The APIs were

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readily available for viewing online and Google copied them into Android, so the holding of Sega

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does not even apply. Second, Google has not shown the Java APIs are merely “functional

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requirements.” The Ninth Circuit did not conduct a detailed analysis of this issue in Sega because

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the question of infringement in the final product was reserved by Sega and left for remand. See

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id. at 1528. But the decision shows that in determining whether an element of a computer

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program is a mere functional requirement the court will look to the level of creative expression

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involved. That is what the court used to distinguish the S-E-G-A 20 byte initialization code from

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the “original program” in Atari v. Nintendo, 975 F.2d 832, 840 (Fed. Cir. 1992). Sega, 977 F.2d

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at 1524 n.7 (emphasis in original). Google witnesses admitted there was significant creative
ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
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expression here. See RT 750:2-752:14 (Bloch); TX 1090 at 128:8-18 (Astrachan Dep.). Third,

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uses the term “compatibility” very differently from the Ninth Circuit in Sega. The issue in Sega

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was that defendant’s games “would not operate” on Sony’s console without copying, not that

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being “compatible with the skills and expectations of Java language programmers” permitted

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copying. Compare Sega, 977 F.2d at 1515-16 with ECF No. 1192 at 7.

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Google also overlooks the fact that Sega was about fair use. It incorrectly claims that

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under Sega “it does not matter” whether or not it copied to make Android compatible. ECF No.

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1192 at 8. Sega requires a defendant to have “a legitimate reason” for even intermediate copying.

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See, e.g., Sega, 977 F.2d at 1527-28. Google’s interoperability argument does not pass the red

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face test. Copying to “embrace and extend” is the opposite of what the court endorsed.

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IV.

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SONY V. CONNECTIX
The Court asked the parties to address what Connectix ultimately duplicated to allow

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desktops to run PlayStation games. The Ninth Circuit and district court opinions do not discuss

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or analyze this issue. Both courts emphasize that Sony did not accuse the final product of

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infringement. See, e.g., Sony Computer Entm’t Inc. v. Connectix Corp., 48 F. Supp. 2d 1212,

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1217 (N.D. Cal. 1999) (“Sony I”) (“Sony’s copyright infringement claim is based on a theory of

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intermediate infringement.”); Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 604

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(9th Cir. 2000) (“Sony II”) (“nor does Sony contend that Connectix’s final product contains

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infringing material”). Unfortunately, because Sony is twelve years old, Oracle could not obtain

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copies of the complete record within the Court’s briefing timetable.

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The materials Oracle has been able to retrieve show the content Connectix duplicated is

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far simpler than the Java APIs. Connectix alleged it “began with an empty table consisting of

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entry points into the BIOS.” Connectix’s Opening Appellate Brief, 1999 WL 33623860, at *13

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(9th Cir. May 27, 1999). The precise nature of this empty table or its entry points is unclear, but

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most likely it was a list of memory addresses of functions that game programs could invoke as

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needed. Connectix alleged that about a third to a half of the functions were “standard ‘C’

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language functions that would be familiar to any experienced programmer.” Id. Connectix

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alleged that it implemented 137 of 242 of the functions from Sony’s BIOS. See id. at *18.
ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
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Oracle does not see any reference in the record it retrieved to an application binary interface

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(“ABI”). An ABI describes low-level system conventions, such as how one routine passes

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arguments to, and receives a return value from, another. Unlike an API, an ABI does not specify

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which routines must exist or how they are intended to be used.

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As Sony shows, not all interfaces are the same. Nothing in the Sony record suggests that

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there was significant creativity in the entry point table Connectix copied, in stark contrast to the

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trial record in this case. Neither opinion addressed whether Connectix copied an original

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structure, sequence, or organization in its BIOS program or the table. The district court noted that

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“Sony BIOS consists of a combination of C source code and R3000 micro-processor assembly

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language.” Sony I, 48 F. Supp. 2d at 1215. The C language does not recognize the concepts of a

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class or interface hierarchy, and nothing in Connectix’s table approaches the complex

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interrelationships in the Java APIs. The only reference to sequence at all is Connectix’s claim

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that its entry point table needed to “contain the same entry points, and be in the same order and

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format” as Sony’s table. Connectix Opening Appellate Br., 1999 WL 33623860, at *13.

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Whether Connectix copied names from Sony’s BIOS, and for what purpose, is also

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unclear, but it appears to have been very limited, unlike here. Sony alleged that Connectix’s

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Virtual Game Station (“VGS”) “includes several function names that are identical to function

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names used in the PlayStation operating system.” Pl.’s Mot. TRO, 1999 WL 33743495 at 2 (N.D.

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Cal. Feb. 3, 1999). Sony argued this point not to claim that Connectix’s VGS (the final product)

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was infringing, but instead as evidence to prove that Connectix had, at some intermediate point,

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disassembled (and therefore copied) Sony’s BIOS when creating the VGS. See id. But it is not

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clear that the names were used to call the functions—they could have been used for debugging

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purposes instead—and Connectix’s allegation regarding the table of entry points suggests they

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were not. Connectix’s Opening Appellate Brief, 1999 WL 33623860, at *13.

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In any event, none of this had anything to do with the holding in Sony. Sony, like Sega,

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was a fair use case about intermediate copying for reverse engineering. See Sony II, 203 F.3d at

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608. For the same reasons that Sega does not bear on the copyrightability of the SSO of the Java

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APIs or absolve Google for its infringement, neither does Sony.
ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
CASE NO. CV 10-03561 WHA
pa-1530188

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Dated: May 24, 2012

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MORRISON & FOERSTER LLP
By: /s/ Michael A. Jacobs
Michael A. Jacobs

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Attorneys for Plaintiff
ORACLE AMERICA, INC.

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ORACLE’S MAY 24, 2012 COPYRIGHT REPLY BRIEF
CASE NO. CV 10-03561 WHA
pa-1530188

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