by Sean Chen and Sebastian Benthall
Background
Oracle is suing Google over intellectual property used in the Android mobile operating system. Specifically, it is suing for patent and copyright infringement around the use of Java, a programming language and related virtual machine developed by Oracle. The case will go to trial in 2012 unless the two parties settle.
A virtual machine is a program that simulates a computer and its operating system for the use of some programming language. Java’s virtual machine is widely used for server applications. The virtualization makes it easy to run a server application on many different operating systems.
In order to support developed in Java of Android applications, Google developed their own Java virtual machine, Dalvik. Google claims that Dalvik uses no code from Oracle and is substantially different in architecture, despite providing the necessary environment for Java programs to run.
The Case
Oracle claims that, instead of being a wholly independent clean-room implementation of a Java VM, Google knowingly, repeatedly, and directly infringed on both copyrights and patents related to Java technology. Oracle claimed Dalvik violates seven U.S. patents (numbers 6,125,447, 6,192,476, 5,966,702, 7,426,720, RE38,104, 6,910,205, and 6,061,520). In addition, it also states that Dalvik copied a dozen files and 37 instances of API specification which violate the coptright of Java technology.
Several of the patent claims have been dismissed already, but the copyright claims have not yet been dismissed by the judge, despite Google’s efforts.
For this blog post, we will focus on the copyright infringment claims. Specifically at stake is the Dalvik API, or application programming interface, which is the interface that developers can use e to write programs that take advantage of the Dalvik virtual machine. Oracle is claiming to have copyright over the API, while Google has argued that the API is a method of operation.
ReadWriteWeb summarizes Google’s argument:
Google invoked a doctrine in the law described by the French phrase scenes a faire, which refers to any concept that can only be expressed in one way, perhaps using a catchy phrase. In such an instance, the law prohibits copyright of that catchy phrase – you can’t give anyone a monopoly on the expression of an idea if there’s no other way to express it. Google then invoked a second element of the law called the merger doctrine, in an effort to extend scenes a faire to the principle of infringement. If an idea can’t be copyrighted, expression of that idea can’t infringe anyone’s rights, the company argued.
Google wants these arguments to apply to the API. However, the judge has rejected the blanket defense against the applicability of copyright to API’s, saying that Google must provide justification for this defense piece by piece.
The case has not yet gone to trial.
Discussion
What is API
Judge Alsup wrote, “The term API is slippery. It has been used by the parties and in the industry as shorthand to refer to many related concepts, ranging from individual methods to code implementations to entire class libraries and specifications. … The documentation for an API is referred to as the ‘API’, and the specifications entailed by that documentation are called the ‘API.’”
The judge also has noted that both Google and Oracle have conflated the API as implemented by the software with the API specification, which is documentation. Google identifies “the API” with the implementation in order to support its method of operation defense (see below). Oracle, on the other hand, argued that Java phraseology in “the API”–meaning, the specification–constituted trademark infringement by Google. The judge denied both arguments.
Method of Operation
Google tried to argue that the API is a method of operation, which is foreclosed from copyright protection by 17 U.S.C. § 102(b). Section 102(b) states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
In the case of Lotus v. Borland, Borland literally copied the menu command hierarchy of Lotus 1-2-3. But since the menu command “provides the means by which users control and operate Lotus 1-2-3.” And “Without the menu command hierarchy, users would not be able to access and control, or indeed make use of, Lotus 1-2-3’s functional capabilities.” As a result, the Court of Appeals stated that Borland did not infringe the copyright of Lotus.
Google tried to make the point that it was a similar case, since API is a way to call a method within a software code. But as described in previous section, the API is not only the trigger of that method, but also includes the documentation and the specification.
The documentation and specification are not a “method of operation” since users can access the method or make the code function, without the use of documentation and specification. Therefore, judge Alsup wrote, “Google’s argument that APIs are unprotectable methods of operation attacks a straw man. … It is not the APIs but rather the specifications for 37 API packages that are accused. Even if Google can show that APIs are methods of operation not subject to copyright protection, that would not defeat Oracle’s infringement claim concerning the accused specifications.” The judge has only agreed with Google that the names of classes, methods, and files aren’t copyrightable: All the rest of Oracle’s copyright violation claims stand.
Analytic Dissection
In rejecting Google’s attempt to defend whole categories of its API with a blanket argument, Judge Alsups ruling is similar to the ruling in Apple vs. Microsoft that holds that in copyright infringement cases, the court must use analytic dissection to determine which features are protected by copyright. The copyright infringement will not be judged on the API as a whole.
Idea-expression divide and scenes a faire
Perhaps this case will depend on the application of the idea-expression divide and scenes a faire doctrines to API specifications.
In the software industry, the term “API” is often used ambiguously to refer to both the implementation and documentation of the software interface. This may indicate that the concepts are so closely related as to be indistinguishable. If aspects of an API specification are ruled to be “as a practical matter indispensable, or at least standard, in the treatment of a given [idea]” that specification may be ruled unprotected by copyright.
Reference
Duncan, Geoff. “Could a lawsuit derail Android? Understanding Oracle’s threat to Google“ http://www.digitaltrends.com/computing/can-oracles-court-challenge-derail-android/
Oracle America, INC. v Google, INC.
http://stadium.weblogsinc.com/engadget/files/oracle-google.pdf
Fulton, Scott. “Judge: Neither Google Nor Oracle Has Defined an ‘API’”
http://www.readwriteweb.com/hack/2011/09/judge-neither-google-nor-oracl.php