Oracle America, Inc. v. Google Inc.

Filing 897

TRIAL BRIEF Google's 4/12/12 Copyright Liability Trial Brief by Google Inc.. (Van Nest, Robert) (Filed on 4/12/2012)

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KEKER & VAN NEST LLP
ROBERT A. VAN NEST - # 84065
[e-mail]
CHRISTA M. ANDERSON - # 184325
[e-mail]
MICHAEL S. KWUN - # 198945
[e-mail]
633 Battery Street
San Francisco, CA 94111-1809
Tel: [phone]
Fax: [phone]

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,

Case No. 3:10-cv-03561 WHA
GOOGLE’S 4/12/12 COPYRIGHT
LIABILITY TRIAL BRIEF

v.
Dept.:
Judge:

GOOGLE INC.,

Courtroom 8, 19th Floor
Hon. William Alsup

Defendant.

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TABLE OF CONTENTS

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Page

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I.

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

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II.

ARGUMENT .......................................................................................................................1

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A.

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Computer programming languages are not copyrightable. ......................................1
1.

Computer programming languages are systems for expression, or
methods of operation for communication. ...................................................1

2.

By the same token, the APIs are not copyrightable. ....................................3

3.

Google has never taken the position that a computer programming
language can be copyrighted. .......................................................................6

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B.

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The APIs are integral to the Java programming language. ......................................7
1.

Without the APIs, the Java programming language is deaf, dumb
and blind.......................................................................................................7

2.

The APIs are fundamental to the Java programming language. ..................8

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III.

CONCLUSION ..................................................................................................................10

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TABLE OF AUTHORITIES

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Page(s)

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Federal Cases

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Anti-Monopoly, Inc. v. General Mills Fun Group
611 F.2d 296 (9th Cir. 1979) ..................................................................................................... 5

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Baker v. Selden
101 U.S. 99 (1879) ..................................................................................................... 2, 3, 4, 5, 6

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Chamberlin v. Uris Sales Corp.
150 F.2d 512 (2d Cir. 1945)....................................................................................................... 5

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Mazer v. Stein
347 U.S. 201 (1954) ................................................................................................................... 6

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Publications Int’l v. Meredith Corp.
88 F.3d 473 (7th Cir. 1996) ....................................................................................................... 2

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Sega Enters. Ltd. v. Accolade, Inc.
977 F.2d 1510 (9th Cir. 1992) ................................................................................................... 6

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Whist Club v. Foster
42 F.2d 782 (S.D.N.Y. 1929) ..................................................................................................... 5

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Other Cases
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SAS Institute Inc. v. World Programming Ltd.
Advocate General’s Opinion, Case C-406/10 (Nov. 29, 2011) ............................................. 3, 4

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Federal Statutes

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17 U.S.C. § 101 ................................................................................................................................ 1

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17 U.S.C. § 102(b) ............................................................................................................... 1, 2, 3, 5

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Federal Regulations

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37 C.F.R. § 202.1(c)......................................................................................................................... 4

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Other Authorities

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Guy Steele, Growing a Language (Sun Microsystems, Oct. 1998)......................................... 1, 3, 9

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First Circuit Lotus v. Borland decision supports interoperability, Business Wire,
Mar. 10, 1995 ............................................................................................................................. 6

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Brief for Amici Curiae of American Committee for Interoperable Systems and
Computer & Communications Industry Association in Support of Respondent,
Lotus Development Corp. v. Borland International, Inc., 516 U.S. 233 (1996)
(No. 94-2003), 1995 WL 728487 .......................................................................................... 6, 7
JOHN C. MITCHELL, CONCEPTS IN PROGRAMMING LANGUAGES (Cambridge Univ.
Press, 2003) (Trial Ex. 2507) ................................................................................................. 2, 3

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I.

INTRODUCTION
The Court has asked for a “firm yes or no position on whether computer programming

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languages are copyrightable.” Order [Dkt 874] at 1. No, computer programming languages are

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not copyrightable. Google has never taken any other position. In addition, as requested, Google

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offers below a summary of some of the evidence it intends to present at trial relating to the

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copyrightability issues the Court has identified. See Order [Dkt. 865] at 1.

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II.

ARGUMENT

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A.

Computer programming languages are not copyrightable.

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The Copyright Act defines a computer program as “a set of statements or instructions to

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be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C.

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§ 101. A computer programming language is thus simply a language one can use to create a set

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of statements or instructions to be used directly or indirectly in a computer in order to bring about

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a certain result. Without a computer programming language, the set of statements or instructions

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cannot be understood by the computer. As such, a computer language is inherently a utilitarian,

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nonprotectable means by which computers operate.

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This commonsense approach to the statute makes the very distinction Congress itself

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drew: the protectable material is the computer program (the set of statements or instructions); the

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unprotectable material is the method or system (the language). So understood, original computer

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programs may be protected, but the medium for expression in which they are created is not.
1.

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Computer programming languages are systems for expression, or
methods of operation for communication.

The Copyright Act bars copyright protection for an “idea, procedure, process, system,
method of operation, concept, principle, or discovery,” even if it is in an “original work of
authorship.” 17 U.S.C. § 102(b). This is what the Supreme Court meant when it stated that “no
one would contend that the copyright of the treatise would give the exclusive right to the art or
manufacture described therein.” Baker v. Selden, 101 U.S. 99, 102 (1879); see also Publications
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Guy Steele, an early member of the Java team at Sun, and now an Oracle Software Architect,
defines a language as “a vocabulary and rules for what a string of words might mean to a person
or a machine that hears them.” Guy Steele, Growing a Language (Sun Microsystems, Oct. 1998)
(“Steele”) at 2, available at http://labs.oracle.com/features/tenyears/volcd/papers/14Steele.pdf.
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Int’l v. Meredith Corp., 88 F.3d 473, 481 (7th Cir. 1996) (“The recipes at issue here describe a

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procedure by which the reader may produce many dishes featuring Dannon yogurt. As such, they

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are excluded from copyright protection as either a ‘procedure, process, [or] system.’”) (quoting

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17 U.S.C. § 102(b)).

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In the case of computer programs, this means that a given set of statements or instructions

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may be protected, but the protection does not extend to the method of operation or system—the

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programming language—by which they are understood by the computer. In copyright terms, the

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set of statements or instructions is the expression and the language used to make that expression

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intelligible to the machine is the method of operation or system. See Google 4/3/12 Br. [Dkt.

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852] at 6, 14 (explaining that the APIs are a “system that can be used to express,” and that

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computer languages are uncopyrightable for the same reason). In its reply brief, Oracle did

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not—and could not—dispute this point. See Oracle 4/5/12 Br. [Dkt. 859] at 3-4, 8. Oracle’s

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expert, too, agrees: “Programming languages are the medium of expression in the art of computer

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programming.” JOHN C. MITCHELL, CONCEPTS IN PROGRAMMING LANGUAGES (Cambridge Univ.

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Press, 2003), Trial Ex. 2507 at 3 (emphasis added).

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Oracle has no response to the common sense conclusion that a computer language is a

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system for expression, except to argue that Section 102(b) must mean something else when it says

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“system.” Oracle’s own expert, however, has described programming languages as abstractions.

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Similarly, fictional languages such as Na’vi and Dothraki cannot be copyrighted. While the
film Avatar and the television series Game of Thrones are copyrightable (including the portions in
the fictional Na’vi and Dothraki languages), and while, for example, a dictionary or grammar
textbook for either language would be copyrightable, the languages themselves are not. Oracle
asks why copyright should not protect such languages, see Oracle 4/5/12 Br. [Dkt. 859] at 9; the
answer is that Section 102(b) says that they are not protected. Moreover, there is no reason to
believe that allowing copyright owners to control who can express themselves in these languages
would further the aims of copyright law.
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Oracle also argues that a computer language can be “original, text-based, and capable of
fixation,” and thus that it must be copyrightable. See Oracle 4/5/12 Br. [Dkt. 859] at 9. First,
Section 102(b) bars copyright protection for “original works of authorship” that fall within its
enumerated classes of exclusion. See 17 U.S.C. § 102(b). Thus, the fact that a system is original,
text-based and fixed does not mean that Section 102(b) does not apply.
Second, a language cannot be fixed. Certainly, a description of a language (e.g., a specification)
can be fixed. A computer program written using the language (e.g., the Gmail application on
Android phones) or an implementation of a language (e.g., a compiler or interpreter) can be fixed.
But none of those things is “the language,” any more than a dictionary “is” English, Das Boot “is”
German, or a C compiler “is” the C programming language. See Baker, 101 U.S. at 102 (“But
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See id. at ix (“Programming languages provide the abstractions, organizing principles, and

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control structures that programmers use to write good programs.”) (emphases added). Thus even

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Oracle’s own expert places programming languages firmly on the unprotectable “idea” side of the

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idea/expression dichotomy.

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2.

By the same token, the APIs are not copyrightable.

The APIs at issue are integral to and part of the Java programming language. See infra

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Part II.B. But whether that is the case, or whether they can be separated from the Java

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programming language (as Oracle argues), it is undeniable that these APIs extend the language by

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increasing its vocabulary. See Steele at 7 (“A true library does not change the rules of meaning

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for the language; it just adds new words.”). Whether the collective set is called “the Java

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programming language” (adopting Google’s view) or perhaps “the Java programming language

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supercharged” (adopting Oracle’s view), it is, to use Guy Steele’s definition, “a vocabulary and

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rules for what a string of words might mean to a person or a machine that hears them.” Steele at

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2. The whole of this collective set is thus as uncopyrightable as any programming language. The

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APIs, as a subset of this uncopyrightable whole, are themselves uncopyrightable. See 17 U.S.C.

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§ 102(b).

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In its April 5th brief, Oracle argues that the opinion of the ECJ Advocate General suggests

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that “interfaces” can be copyrighted, at least in some circumstances. See Advocate General’s

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Opinion, SAS Institute Inc. v. World Programming Ltd., Case C-406/10, ¶ 85 (Nov. 29, 2011).

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The opinion, however, uses “interface” in two senses, first referring to a file format (which it

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concludes is an uncopyrightable idea) and later referring to specific source code in a computer

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program, authored by the developer, that implements a file format (which it concludes may be

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copyrighted). This is entirely consistent with Google’s position.

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there is a clear distinction between the book, as such, and the art which it is intended to illustrate.
The mere statement of the proposition is so evident, that it requires hardly any argument to
support it.”); cf. René Magritte, La trahison des images.
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Oracle’s expert has further described designing a programming language as requiring decisions
regarding what ideas to leave out. See id at 3 (“A single application also helps with one of the
most difficult parts of language design: leaving good ideas out.”). And he has described studying
programming languages as requiring “the study of conceptual frameworks for problem solving,
software construction, and development.” Id. at 5 (emphasis added).

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The opinion first calls the file format used by SAS for data files a “logic interface.” See

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id. ¶¶ 77-78. “Those formats may be regarded as blank forms which are to be filled with the

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customer’s data by the SAS System and which contain specific locations in which particular

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information must be written in order for the system to be read and write the file correctly.” Id.

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¶ 79. Blank forms are per se uncopyrightable under the Copyright Act. Baker, 101 U.S. at 107;

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37 C.F.R. § 202.1(c).

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Next, the opinion discusses how this logic interface—the file format—could be made part

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of a computer program, explaining that “interface” could also refer to “the elements which create,

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write and read the format of said SAS data files” which are “expressed in source code in the

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program.” SAS, Case C-406/10, op. at ¶ 82. The opinion concludes that the SAS source code that

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implements the file format could be protected by copyright. See id. ¶¶ 81, 82. The Advocate

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General opines that under EU law, WPL was nonetheless allowed to decompile this code to

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reverse engineer the file format, so long as WPL wrote its own code to implement the file format.

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See id. ¶¶ 83-90. In short, the opinion is consistent with Google’s view, and distinguishes

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between the idea represented by an interface, which is not copyrightable, and the source code

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implementing an interface, which may be protected by copyright.

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That these APIs are an uncopyrightable idea, system or method of operation becomes

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clearer still when one focuses on precisely what Oracle claims is copyrightable: the structure,

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selection and organization of the APIs. A set of nonsensical APIs could be created that had

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exactly the same structure, selection and organization as the Oracle APIs, but that did different

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things. For example, the sqrt() method could always return zero—indeed, every method that

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returns a number could always return zero, while those that return text could always return the

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letter a, those that return true or false could always return true, and so on, with a default result

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being used for every variable type. This set of APIs would serve no useful purpose, but would

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have exactly the same structure, selection and organization as the Oracle APIs. No reasonable

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jury could ever conclude that the “expression” in this hypothetical set of APIs is substantially

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similar to the “expression” in the Oracle APIs, notwithstanding the “copied” structure, selection

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and organization. Thus, Oracle’s infringement theory fails unless it accuses not just the structure,
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selection and organization, but also the purpose of the APIs. In other words, Oracle’s

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infringement claim fails unless it is allowed to copyright ideas, which it cannot do. 17 U.S.C.

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§ 102(b); see also Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 300 n.1 (9th

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Cir. 1979) (“business ideas, such as a game concept, cannot be copyrighted”); Chamberlin v. Uris

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Sales Corp., 150 F.2d 512, 513 (2d Cir. 1945) (“Precisely, however, because it is the form of

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expression and not the idea that is copyrightable, we hold that the defendant did not infringe on

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the plaintiff’s statement of the rules. The similarities of the two sets of rules derive from the fact

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that they were necessarily drawn from the same source.”); Whist Club v. Foster, 42 F.2d 782

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(S.D.N.Y. 1929) (“In the conventional laws or rules of a game, as distinguished from the forms or

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modes of expression in which they may be stated, there can be no literary property susceptible of

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copyright.”).

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Indeed, Oracle now—on the eve of trial—candidly states that it claims Google’s

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implementing source code is a derivative work of Oracle’s English-language descriptions

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because Google’s source code does the things that the English descriptions describe. See Oracle

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4/5/12 Br. [Dkt. 859] at 10 (Oracle is claiming infringement based on “Google’s creation of

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derivative works from the English-language descriptions of the elements of the API

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

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

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

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described therein.” Baker, 101 U.S. at 102.

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While Oracle argues the “extremity” of Google’s position, the truly extreme position

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would be to allow a party to devise a system (the Java language APIs), and then enforce

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copyrights in descriptions of that system (Oracle’s specifications) and implementations

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(expressions) of that system (Oracle’s libraries) to preclude others from practicing the system.

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

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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
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therein can be obtained; and it can only be secured by a patent from the
government.
101 U.S. at 102. It is barred by Mazer v. Stein: “Unlike a patent, a copyright gives no exclusive
right to the art disclosed; protection is given only to the expression of the idea—not the idea
itself.” 347 U.S. 201, 217 (1954). It is barred by Sega Enters. Ltd. v. Accolade, Inc., under which
“functional requirements for compatibility” with a system described by or implemented in a
copyrighted work cannot be protected by copyright law. 977 F.2d 1510, 1522 (9th Cir. 1992).

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Google has never taken the position that a computer programming
language can be copyrighted.

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Google has never taken the position, before a court or agency or otherwise, that a

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programming language was or is copyrightable. Google does believe that computer source code

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implementing a language can be copyrighted. Google has, for example, created programming

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languages called “GO” and “Dart.” Google has encouraged others to use these languages for free,

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and has also provided an open source license for others to use Google’s source code and object

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code that implements these languages. This is consistent with the positions Google has taken in

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this case.
Google notes that Sun (now known as Oracle America) organized, formed and led the

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American Committee for Interoperable Systems (“ACIS”), the chairperson of which was Sun’s

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Deputy General Counsel, Peter M.C. Choy. In a press release after the First Circuit’s decision in

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Lotus v. Borland, Mr. Choy “noted that the decision will make it more difficult for vendors to

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attempt to lock out competitors and lock in consumers by asserting proprietary rights in certain

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‘building blocks’ of software, such as programming languages, program interfaces, and the

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functional aspects of user interfaces.” First Circuit Lotus v. Borland decision supports

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interoperability, Business Wire, Mar. 10, 1995 (emphasis added). Mr. Choy was also counsel of

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record for an ACIS amicus brief filed with the Supreme Court, urging the Court to affirm the First

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Circuit’s judgment that the Lotus menu hierarchy was not copyrightable. ACIS argued that “[t]he

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The organization had the same mailing address as Sun’s headquarters. At the time of the Lotus
case, the ACIS website was located at http://www.sun.com/ACIS/.
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Available via LEXIS-NEXIS. Sun also distributed this press release by other means. See, e.g.,
http://www3.wcl.american.edu/cni/9503/4860.html.
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decisive issue in [the Lotus] case is whether copyright law can protect the rules that enable two

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elements of a computer system to work together.” 1995 WL 728487, at *3. ACIS further argued:

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The 1-2-3 command structure is more than a user interface; it is the interface
between the Lotus program and programs—referred to as “macros”—that are
written by users at their own considerable expense for execution in connection
with the 1-2-3 program. Because the 1-2-3 command structure provides the
template for the macros and because the macros are the key to compatibility, the
First Circuit, consistent with holdings in other circuits, ruled that those elements
necessary to macro compatibility are not protected by copyright.

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Id. (emphases added). Thus, while not directly taking a position on whether programming

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languages can be copyrighted, the brief implies that they cannot.

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B.

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The APIs are integral to the Java programming language.

As Google has previously noted, Java’s own books describing the APIs state that they are

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available “to all Java programs . . . .” Trial Ex. 980 at xviii. Those books describe four of the

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APIs (out of eight that then existed) as “the foundation of the Java language.” Id. (back cover).

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1.

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Without the APIs, the Java programming language is deaf, dumb and
blind.

The APIs are so fundamental that without them the Java programming language has no
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ability to provide any output to the user. Similarly, without the APIs, the Java programming
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language has no ability to accept input from the user. When Mark Reinhold, Oracle’s Chief
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Architect of the Java Platform, was asked why the Java language APIs exist, he testified:
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Well, if there were no APIs, we would only have a language. You would be able
to write basic computations that never did any IO, had any communication with
the outside world or the underlying platform.

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You could write—you know, you could do computations on numbers and
strings and generate them, but you wouldn’t be able to do anything with them.

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Reinhold 8/5/11 Depo. at 115:10-17. He further explained, “But even doing that, even just to

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manipulate a string requires the string API, so you’re—you’re, actually, pretty much just limited

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to numbers, which are pretty boring.” Id. at 115:19-22.

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There is one minor exception. A Java language program can be written to accept arguments
from the “command line” at runtime. Even this facility, however, is limited to accepting a single
set of arguments at the beginning of the program.
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This testimony is subject to an objection, but only that the testimony is outside the scope of the
Rule 30(b)(6) topics for which Dr. Reinhold was designated.
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In this respect, the Java language APIs are similar to libraries associated with some older

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languages in the history of programming. In C, for example, input and output facilities are part of

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what the designers of the C language called “the standard library, a set of functions that provide

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input, output, string handling, storage management, mathematical routines, and a variety of other

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services for C programs.” BRIAN W. KERNIGHAN & DENNIS M. RITCHIE, THE C PROGRAMMING

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LANGUAGE (Prentice Hall, 2d ed., 1988), Trial Ex. 3002 at 151. Even the basic “hello, world”

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C program in their book requires using the standard library in order to display the words “hello,

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world” to the user. See id. at 6.

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programming language includes the following source code:

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Similarly, Oracle’s “hello, world” program in the Java

System.out.println("Hello World!");

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“System” refers to a class that is part of the java.lang API package, and “out” is a field defined in

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the System class. The System class defines the “out” field as belonging to the “PrintStream”

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class, which is part of the java.io API package. Thus, even implementing this most basic of

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programs in the Java programming language requires using two of the accused APIs.

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2.

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The APIs are fundamental to the Java programming language.

In its April 5th brief, Oracle conceded that the Java language specification requires the

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defineClass() method from the ClassLoader class in the java.lang package. See Oracle 4/5/12 Br.

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[Dkt. 859] at 7. In J2SE 5.0, the defineClass() method is an “overloaded” method; there are four

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versions of the defineClass() method, the fourth of which has the following method declaration:

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protected Class defineClass(String name, ByteBuffer b, ProtectionDomain
protection Domain)

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The “Standard Template Library” is a similar library that has been incorporated into the
standard C++ specification.
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The authors explain that a “hello, world” program—a program that prints the words “hello,
world”—is typically the first program a developer writes when learning a language. See id. at 5.
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The authors state that “[i]nput and output facilities,” which are part of the standard library, “are
not part of the C language itself . . . .” Id. 151. Even the basic “hello, world” C program they
introduce, however, requires the standard library. All that is meant by their distinction between
the “language” and the library is that “higher-level mechanisms must be provided in explicitlycalled functions.” Id. at 2. That is, they require APIs. Notably, the authors discuss the C
standard library as part of their book about the “C programming language.”
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See http://docs.oracle.com/javase/tutorial/getStarted/application/index.html.
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As indicated in the parentheses, the method accepts three arguments, of types “String,”

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“ByteBuffer” and “ProtectionDomain.” String, ByteBuffer and ProtectionDomain are classes

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defined, respectively, in the java.lang, java.nio and java.security APIs. Implementing this single

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example of a single required class thus requires implementing elements of three of the 37 APIs.

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This is only a single example—a single example that Oracle chose to highlight. Due to

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the interdependencies between classes in the APIs, expressly requiring one element often will

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necessarily require many others, just as the defineClass() method implicates the String,

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ByteBuffer and ProtectionDomain classes from java.lang, java.nio

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the classes expressly required by the Java language specification and interdependencies in the

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and java.security. Based on

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APIs, thousands of elements from the accused APIs are required in order to implement the Java

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programming language.

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300 pages to documentation for the java.lang, java.io and java.net packages. See Trial Ex. 4027

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at 455-765. The documentation of the APIs was removed from later editions of the Java language

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specification only for space reasons. See Trial Ex. 984 at xxvi (“The specifications of the

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libraries are now far too large to fit into this volume, and they continue to evolve. Consequently,

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API specifications have been removed from this book.”).

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In fact, the first edition of the Java language specification devotes over

In its April 5th brief, Oracle also suggests that one could implement the defineClass() method
without implementing the rest of the ClassLoader class. See Oracle 4/5/12 Br. [Dkt. 859] at 7.
Oracle has repeatedly claimed that it is being irreparably harmed by alleged “fragmentation”
because Google did not fully implement all of the J2SE API packages. Here, however, it appears
to argue that to implement the free and open Java programming language, one should implement
only part of the APIs. To the extent that Android “fragments” Java at all—and witnesses at trial
will dispute this point—the approach Oracle appears to suggest would “fragment” Java far more.
Further, the evidence at trial will show that Java, and particularly Java ME, was “fragmented”
long before Android, and that Sun condoned this “fragmentation.”
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Oracle argues that because some of the accused packages were not part of the initial release of
Java, they cannot be fundamental or integral to the Java programming language. Languages,
however, are not static. See Trial Ex. 984 at xxv (“This specification defines the language as it
exists today. The language is likely to continue to evolve.”); Steele at 5 (“I now think that I, as a
language designer who helps out with the design of the Java programming language, need to ask
not ‘Should the Java programming language grow?’ but ‘How should the Java programming
language grow?’”).
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Oracle argues that when the Java language specification refers to APIs that are fully defined
elsewhere, that means that the referenced definitions are not part of the language. See Oracle
4/12/12 Br. [Dkt 859] at 7. This is backwards. When the Java language specification “does not
provide a complete specification” but refers the reader to the APIs for details, see Trial Ex. 984 at
6, the only fair conclusion is that the language specification is incorporating material by reference
from the API specifications.
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In addition, witnesses at trial will testify that developers expect the APIs to be available

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when they program in the Java programming language, that the APIs are routinely taught in

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beginning courses regarding use of the language, and that no developer can credibly claim to be

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proficient in the Java programming language unless he or she knows the APIs. And, in addition

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to statements highlighted in prior briefs, Sun also stated, for example, that the java.lang API

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“provides the classes and interfaces that form the core of the Java language and the Java Virtual

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Machine,” and that several objects defined in java.lang are “closely intertwined with the Java

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language definition.” Trial Ex. 980 at xix. Oracle’s expert has testified that the Java

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programming language cannot be implemented without including at least some of the APIs.

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Indeed, Sun described the Java programming language as follows:

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The Java programming language is a general-purpose concurrent class-based
object-oriented programming language, specifically designed to have as few
implementation dependencies as possible. It allows application developers to
write a program once and then be able to run it everywhere on the Internet.

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Trial Ex. 984 at xxi (emphasis added). Because any useful program in the Java programming
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language requires the APIs, “the Java programming language” only allows a developer to write a
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program once and run it everywhere if the “language” is understood to include the APIs.
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III.

CONCLUSION
Computer programming languages are not copyrightable, and neither are Oracle’s APIs.

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Oracle accuses Google of infringement for doing what the Oracle API specifications describe.
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That is a classic attempt to improperly assert copyright over an idea rather than expression. The
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Court should hold that the structure, selection and organization of the APIs are uncopyrightable.
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Dated: April 12, 2012

KEKER & VAN NEST LLP
By:

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/s/ Robert A. Van Nest
ROBERT A. VAN NEST
Attorneys for Defendant
GOOGLE INC.

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