Saturday, May 12, 2012

Judge holds Google to infringe 8 more Java files -- FOSS Patents was first to publish 6 of them

I had to wait for this day -- yesterday, to be precise -- for almost 15 long months. But there are other people who believe in things they say and have to wait even longer, or don't even live to see their vindication.

On January 21, 2011, I published a blog post entitled "New evidence supports Oracle's case against Google". As I wrote back then, I had found "six more files in an adjacent directory that show the same pattern of direct copying" as a file shown in Exhibit J to Oracle's amended complaint. Just to be perfectly clear: apart from that exhibit, which had entered the public record three months earlier, Oracle had zero involvement with the post. When I published it, I'm sure people at Oracle were just as surprised as anybody else.

Out of more than 650 FOSS Patents posts, only three have been viewed more frequently than that one. But it was also among the most "controversial" ones after other bloggers made claims that those files were not even at issue in this dispute (proven wrong only one month later) and that this didn't matter because the infringing material was located in a subdirectory of a "test" part of the Android codebase. My original post didn't claim that the code was actually found on any particular device, but device makers redistributed it at least over the Internet, which also makes them liable for infringement.

There's a certain fringe group of pathologically mendacious astroturfers and their rabid followers out there, supported by less than a handful of journalists (who wouldn't have to engage in link baiting at my expense if they were more successful), who have ever since held that particular story against me, including in their astroturfing-style comments below articles on major IT news websites and discussion boards like Slashdot and Hacker News. I wish to clarify that none of the foregoing relates to the two bloggers who were first to contradict my analysis on a couple of websites I like and respect. I have no problem with them personally, but their "rebuttals" (which actually commented on what other people thought I said more so than on what I actually said) were blown out of proportion by others for the purpose of character assassination. Obviously, that smear campaign never reached the professional audience that I primarily write for. Still, it was unfair as a matter of principle.

Those who failed to affect my credibility have now lost whatever little was left of theirs.

On Friday afternoon by local time, Judge William Alsup, the federal judge presiding over the Oracle v. Google lawsuit in the Northern District of California, entered a judgment as a matter of law (JMOL) overruling the jury (as well as Google's opposition to an Oracle motion for JMOL) with respect to eight decompiled Java files. Here's the order, which I'll quote from and comment on further below:

12-05-11 Oracle v Google JMOL on 8 Dec Om Piled Files

Here's the text of the order -- followed by my comments:


The evidence at trial showed that Google decompiled eight Java files and copied them each in their entirety. No reasonable jury could find that the copying of entire computer files was de minimis. The trial record contains the source code for the Java code files (TX 623.2–623.8), decompiled versions of Java code files (TX 896.1–896.8), and corresponding Android code files (TX 1031–40). Professor John Mitchell testified about the decompilation process, how he determined that the eight files were decompiled and how, in a side-by-side comparison he found "that the actual code matches completely" (Tr. at 1259–1260).

In its opposition brief, Google argues that the jury may have found that Google's use of the copied files was de minimis because these copied files were only "test files" that were not shipped on Android phones. This is unpersuasive. Professor Mitchell testified that using the copied files even as test files would have been significant use. There was no testimony to the contrary. Moreover, our court of appeals has held that it is the amount of copying as compared to plaintiff's work that matters for the de minimis inquiry, not how the accused infringer used the copied work. Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004). Here, Google has admitted to copying the entire files. No reasonable jury could find that this copying was de minimis.

For the reasons stated, Oracle's motion for judgment as a matter of law of infringement of the decompiled files is GRANTED. The answer to Question 3B on the Special Verdict Form from phase one will be deemed 'Yes.'


Dated: May 11, 2012.


The above speaks for itself. The files were decompiled and copied, they were not too small to matter, and the judge calls the "test files" argument "unpersuasive" because the undisputed evidence establishes that "using the copied files even as test files would have been significant use".

The judge previously refused to grant some other parts of Oracle's JMOL motion, and I'll talk some more about the state of this litigation these days. With a view to the litigation, the fact that the judge has now already overruled the jury on one item is pretty significant. If he can overrule the jury on those eight files, saying that "no reasonable jury could find otherwise", I actually don't understand why he doesn't want to decide on the "fair use" defense. But back to those eight decompiled files.

The file names are,,,,,,, and was previously shown in Oracle's Exhibit J. In my January 21, 2011 blog post, I flagged six more files:,,,,, and

At the time I also believed that was a decompiled file, but in that case, the decompiler had changed the format so much that I thought many people (especially non-programmers) would look at it and doubt that it's the same code. Judge Alsup's decision is based on testimony that clarified this. I was just being very conservative when I wrote that blog post in January 2011.

Given that the jury identified copyright infringements not only with respect to the 37 Java APIs but also the 9-line rangeCheck function, it struck me as inconsistent that it didn't deem those decompiled files infringed. The court has corrected that part. For the reasons outlined herein, I'm particularly gratified. And I'm sure many of those who like and support this blog will now be reading this with a big smile.

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