Google's File Cabinet Squares Off Against Oracle's Ann Droid

, The Recorder

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Joshua Rosenkranz
Joshua Rosenkranz, Orrick Herrington & Sutcliffe partner

SAN FRANCISCO — It was an iconic moment in what was billed in 2012 as the "World Series of IP cases." Google lawyer Robert Van Nest wheeled a file cabinet into court to make the point that Oracle's Java source code merely created a system of organization, which is not eligible for copyright.

Now, as the first jury trial in the smartphone wars goes up on appeal, his opponent, E. Joshua Rosenkranz, has conjured Ann Droid, a fictitious publisher who steals the chapter titles and topic sentences from every paragraph of a Harry Potter novel.

"Defendant Google Inc. has copied a blockbuster literary work just as surely, and as improperly, as Ann Droid," Rosenkranz writes in Oracle's appellate brief.

Van Nest and Rosenkranz will be arguing to the U.S. Court of Appeals for the Federal Circuit on Dec. 4, but it's clear they also held in mind public opinion—or at least the software industry's—as they staked out positions in this technology holy war.

Oracle, which once claimed the case was worth $6 billion, warns that U.S. District Judge William Alsup declared a "manifesto of software exceptionalism" last year that effectively strips copyright protection from all computer software. Oracle's amici curiae include former U.S. Copyright Registrar Ralph Oman, who calls Alsup's 41-page decision "outcome-driven," and Oracle frenemy Microsoft, which declares the ruling "fundamentally flawed."

Google replies that the Java application programming interface is not a work of imaginary fiction like Harry Potter. The APIs, as they're known, simply create a "command structure" that ensure interoperability with widely used Java programs, and therefore are a "method of operation" excluded from copyright by Section 102(b) of the Copyright Act, Van Nest says.

Free use of APIs is critical to the continued development of software, particularly in the cloud computing and mobile device market, say Google amici Rackspace Inc. and Stack Exchange.

"Letting one company copyright APIs would be like letting one company have a monopoly on the use of the + sign," Stack Exchange CEO Joel Spolsky has said.

Media coverage of the Oracle v. Google trial was so intense that Alsup ordered the tech titans to reveal the names of any commentators on company payrolls. The case is still generating heat on Silicon Valley blogs. Florian Mueller, an Oracle consultant, has criticized Google's "extremely broad and almost borderless definition of interoperability" on his FOSS Patents blog, while TechCrunch columnists have cast Oracle's supporters as "defending the aging Empire from the startup Foundation."

Things could get hot at the lectern too. Google accuses Oracle of trying the case on one theory—that the nonliteral "structure, sequence and organization" of its source code was infringed—but now arguing on appeal that Google illegally copied the actual lines of code. "Any asserted error regarding those 7,000 lines is both harmless and waived," Van Nest insists.

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