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<div class="moz-cite-prefix">On 7/8/19 4:42 AM, Henrik Ingo wrote:<br>
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<div dir="ltr" class="gmail_attr">On Sun, Jul 7, 2019 at 5:36
PM Pamela Chestek <<a
href="mailto:pamela@chesteklegal.com"
moz-do-not-send="true">pamela@chesteklegal.com</a>>
wrote:<br>
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<div class="gmail-m_-1507377376623983483moz-cite-prefix">On
7/7/2019 4:23 AM, Henrik Ingo wrote:<br>
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<div>While I haven't closely followed the details of
Oracle vs Google, purely from a layman and business
standpoint it seems clear that Google did create
Android / Dalvik exactly to be interoperable with
Java. This means one can run the same Java source code
on either platform and the java.* namespace offers the
same packages and functionality. </div>
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I believe this is an important distinction that is often
missed. No, Android is not compatible with Java and was
not meant to be. "As we noted in the prior appeal,
however, Google did not seek to foster any 'inter-system
consistency' between its platform and Oracle's Java
platform. Oracle, 750 F.3d at 1371. And Google does not
rely on any interoperability arguments in this appeal." <i>Oracle
Am., Inc. v. Google LLC</i>, 886 F.3d 1179, 1206 (Fed.
Cir. 2018). If the Supreme Court doesn't go beyond its
remit in <i>Google v. Oracle</i>, the earlier cases
holding that this type of use is a fair use will still be
good law. <br>
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<div>This is quoting Oracle, right?<br>
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No, it was quoting the appeals court. In my world, what the court
says is true is true, whether it's true or not. It becomes "the law
of the case" and the parties are stuck with it. This is also from
the earlier appeals court opinion (italics mine):<br>
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Google maintains on appeal that its use of the “Java class and
method names and declarations was ‘the only and essential means' of
achieving a degree of interoperability with existing programs
written in the [Java language].” Appellee Br. 49. Indeed, <b><i>given
the record evidence that Google designed Android so that it
would not be compatible with the Java platform, or the JVM
specifically</i></b>, we find Google's interoperability argument
confusing. While Google repeatedly cites to the district court's
finding that Google had to copy the packages so that an app written
in Java could run on Android, <i><b>it cites to no evidence in the
record that any such app exists and points to no Java apps that
either pre-dated or post-dated Android that could run on the
Android platform</b></i>.<sup>15</sup> <i><b>The compatibility
Google sought to foster was not with Oracle's Java platform or
with the JVM central to that platform. Instead, Google wanted to
capitalize on the fact that software developers were already
trained and experienced in using the Java API packages at issue</b></i><i><b>.
</b></i>The district court agreed, finding that, as to the 37 Java
API packages, “Google believed Java application programmers would
want to find the same 37 sets of functionalities in the new Android
system callable by the same names as used in Java.” Copyrightability
Decision, 872 F.Supp.2d at 978. Google's interest was in
accelerating its development process by “leverag[ing] Java for its
existing base of developers.” J.A.2033, *1372 2092. <br>
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<sup>15</sup> During oral argument, Google's counsel stated that “a
program written in the Java language can run on Android if it's only
using packages within the 37. So if I'm a developer and I have
written a program, I've written it in Java, I can stick an Android
header on it and it will run in Android because it is using the
identical names of the classes, methods, and packages.” Oral
Argument at 31:31. Counsel did not identify any programs that use
only the 37 API packages at issue, however, and did not attest that
any such program would be useful. Nor did Google cite to any record
evidence to support this claim.<br>
<br>
<i>Oracle Am., Inc. v. Google Inc.</i>, <a moz-do-not-send="true"
href="https://www.courtlistener.com/opinion/2673149/oracle-america-inc-v-google-inc/">750
F.3d 1339</a>, 1371–72 (Fed. Cir. 2014).<br>
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<div>I don't know why Google would not have focused on this
argument in their appeal, however I don't see that the kind
of threshold painted by Oracle is in any way meaningful to
the real world. By the same logic one could argue that J2ME,
J2SE and J2EE are not compatible with each other. Which is
true, but also silly.</div>
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<div>It's a fact that I can copy some Java code to Android,
and all the strings and integers continue to work. This is
interoperability. 100% interoperability is very rare anyway.
For example, it's unlikely that you could just swap one
relational database for another, even if both implement the
same SQL standard. So it would be unhelpful for a court to
set the bar for interoperability higher than what is the
norm and expectation for real world use cases.<br>
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The legal standard is not a technical standard, it's whether the
reused content is furthering goals that copyright law accepts as
justification for copying. You see in the quote that the court noted
the fact that there were no apps that ran on both platforms, so no
actual interoperability. Two walled gardens.<br>
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<div>But importantly, interoperability also goes the
other way: Android was compatible with the millions of
developers familiar with Java syntax and standard
libraries.</div>
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This is Google's argument why it is a fair use.<br>
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<div>Aren't these separate questions: <br>
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<div>1) An API (or in any case the Java standard library API) is
purely functional so cannot be copyrighted, vs <br>
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<div>2) an API can be copyrighted but for interoperability
purposes fair use exceptions may apply on a case by case
basis. I thought the appeal is still about #1 and only if
Oracle wins will the litigation about #2 start?</div>
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The lower court and appeals court have decided both (1) and (2) but
we don't know yet what the Supreme Court might agree to review.
Google already asked the Supreme Court to review the
copyrightability question once several years ago and the Supreme
Court decided not to review it. Google now has sought Supreme Court
review again after the fair use decision. Oracle is responding that
copyrightability has been finally decided and the Supreme Court
can't review it this time, just fair use. The Supreme Court hasn't
decided yet whether it will take the case at all, and if it does,
whether it will review only fair use or also copyrightability.<br>
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Pam<br>
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