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Android software commands for pre-assigned functions infringe copyright, claims Oracle in Google case appeal papers

US software giant Oracle has called on the US Court of Appeals to overturn a district court ruling in which Google was found not to have infringed the company's copyrights in its proprietary software.14 Feb 2013

In papers submitted to the Court, Oracle claimed that the Google had been able to "rush" its Android operating systems "to market" because it had copied "thousands of lines of original ... source code". The code belonged to Oracle's Java API technology which enables computer programs to function. Oracle also said Google had "paraphrased" the rest of its code and that its activity amounts to an infringement of its copyrights that has no 'fair use' defence.

A US judge in a district court in California previously ruled that Google had not been guilty of copyright infringement, but Oracle's papers (227-page / 2.04MB PDF) claim that the judge had made a "basic legal error" in reaching that decision.

"Copyright protects a short poem or even a Chinese menu or jingle. But the copied works here were vastly more original, creative, and labour-intensive. Nevertheless, the district court stripped them of all copyright protection," Oracle said. "The court saw this software as just different. It believed that each line of source code Google copied is an unprotectable 'method of operation,' because it is just a command to carry out a pre-assigned function."

"This notion of software exceptionalism for any code is wrong. Congress chose to protect computer programs under copyright law. As this Court recognised in [a previous case involving Atari and Nintendo], software code is protectable expression because authors select and arrange lines of source code in an original way. Under Atari, copyright law recognises no difference between original expression embodied in the topic sentences or organisation of Harry Potter and original expression embodied in like features in software. This Court should reverse the district court’s basic legal error," it said.

"But this Court should go a step further and reject Google’s fair-use defence as a matter of law. A commercial competitor may not copy verbatim crucial features of another’s expression, depriving the original author of a potential market for the work," Oracle claimed.

Java is a technology that allows programmers to write computer code that will run in many computing environments. APIs enable applications, platforms and other system elements to communicate.

In 2010 Oracle initiated a case against Google claiming that the internet giant was guilty of infringing its copyrights and patents in how it used Java technology in its Android operating system. The company claimed that Google required a licence to use the Java platform but had not bought one, and that therefore "without consent, authorisation, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America's copyrighted work, portions thereof, or derivative works".

Oracle also claimed that Google was also guilty of helping other companies that utilise the Android operating system - such as mobile phone device manufacturers - infringe its rights.

In a ruling last year Californian district court judge William Alsup said that Oracle could only claim copyright protection in the specific way it had implemented code, ruling that programming language specifications were not copyrightable. He ruled that because Google had implemented the code differently – albeit to achieve the same functionality – that use had not been copyright infringing in nature.

A jury had previously determined that Google had been guilty of infringing some of Oracle's copyrights, but failed to reach a decision on whether Google's actions were protected by the 'fair use' defence under US copyright laws. However, the unresolved issue was rendered irrelevant when judge Alsup ruled that Oracle's code specifications were not copyrightable.

The judge ruled that inventions "at the concept and functionality level" are only protectable as patents and not by copyright, and although he found that Google had replicated 3% of the code used by Oracle when it had reproduced the functionality of Oracle's 37 Java APIs, he said the internet giant was free to do so under US copyright law. The judge added that Google had replicated "what was necessary" in order that it could "achieve a degree of interoperability" for the use of Java-supported applications on Android.

Google has yet to file its papers on the case to the US Court of Appeals, according to a report by Ars Technica.