By Dan Levine
Feb 12 (Reuters) - Oracle says a U.S. judge erred when he
threw out its billion-dollar copyright claim against Google over
parts of the Java programming language that Google incorporated
into the Android mobile platform, according to a court filing.
Oracle's intellectual property battle against Google has
attracted intense interest from software developers, many of
whom believe the structure of a programming language should not
be subject to copyright protection.
In an appeals brief filed on Monday at the Federal U.S. Circuit Court of Appeals, Oracle said Google's use of Java
structure was "decidedly unfair."
"Copyright protects a short poem or even a Chinese menu or
jingle," Oracle wrote. "But the copied works here were vastly
more original, creative, and labor-intensive."
A Google representative could not immediately be reached for
Oracle sued Google in 2010, claiming that the search engine
company's Android mobile platform infringed its patents and
violated its rights to the Java programming language. It sought
$1 billion in damages on its copyright claims.
A federal jury ruled in Google's favor last year. Eight days
later, U.S. District Judge William Alsup in San Francisco found
that as a legal matter, Oracle could not claim copyright
protection on much of the Java language that Google used.
The case examined whether computer language that connects
programs and operating systems - known as application
programming interfaces, or APIs - can be copyrighted. At trial,
Oracle claimed Google's Android tramples on its rights to the
structure of 37 Java APIs.
Google argued it did not violate Oracle's patents and that
Oracle cannot copyright APIs for Java, an open-source or
publicly available software language. Android is the
best-selling smartphone operating system around the world.
The Washington-based Federal Circuit will decide Oracle's
appeal, even though copyright cases from California would
normally be handled by the 9th U.S. Circuit Court of Appeals.
However, since Oracle's original lawsuit included patent
claims, it puts the appeal under the Federal Circuit's
jurisdiction. Oracle didn't recover on any of its patents and
did not raise any of those issues in its appellate brief.
Oracle asked the Federal Circuit to reverse Alsup's ruling,
as well as the jury verdict which said Google properly asserted
a "fair use" defense.
To support its argument, Oracle attorney E. Joshua
Rosenkranz compared Google's behavior to a hypothetical author,
"Ann Droid," who obtains an advance copy of a Harry Potter
novel. The author copies all the chapter titles, topic sentences
of each paragraph and then paraphrases the rest.
"Google Inc. has copied a blockbuster literary work just as
surely, and as improperly, as Ann Droid - and has offered the
same defenses," Oracle wrote.
Google's reply brief is due in May.
The case is Oracle America Inc v. Google Inc, Federal U.S.
Circuit Court of Appeals. No. 13-1201.
For Oracle: E. Joshua Rosenkranz from Orrick, Herrington &
Sutcliffe and Susan Davies, Kirkland & Ellis.
For Google: Robert Van Nest, Keker & Van Nest.
Follow us on Twitter @ReutersLegal | Like us on Facebook