Thursday, August 6, 2015

Oracle and Google agree on scope of supplemental Android-Java copyright infringement complaint

Further to last week's case management order in the Oracle v. Google Android-Java copyright infringement case, either party has filed a motion as ordered by Judge Alsup.

Google wants the court to preclude Oracle from presenting willful-infringement arguments to the jury unless Oracle definitively elects to seek statutory damages (as opposed to just claiming that it could do so later, no matter how likely or unlikely, given that statutory damages would be tiny as compared to what's at stake here). On that one, the parties disagree. I view this as part of the wider dispute between them over what the jury can be told next year. In a best-case scenario for Google, it would be able to confuse the jury as it did in 2012) with equitable-defenses arguments that are legally unrelated to fair use but easily mislead laypeople, while Oracle would not be allowed to argue that Google's infringement was (as it really was) reckless. In a best-case scenario for Oracle, the equitable defenses wouldn't play a role in the trial but Oracle would be able to present evidence for Google having willfully infringed (internal emails of the "making enemies down the road" kind support that one).

Oracle's motion is about supplementing its complaint in order to reflect new developments over the last few years (since the cut-off before the first trial). Google had said from the beginning that it would not oppose a mere supplementation in terms of making a few more years part of the trial scope, but that it wanted to prevent Oracle from (rather than just supplementing) amending its complaint. In other words, Google said they were fine with more of the same, but not with anything they would consider substantively new.

I wouldn't have expected this, but they have actually agreed on what Oracle can say in a supplemental complaint. Obviously, Google doesn't concede anything. It's not about merits, just about scope at this stage. Even the scope could still give rise to disagreements later in such contexts as discovery: the supplemental complaint would still be interpretable. But Oracle has made things easier for the court by dropping everything that Google would have considered to be an amendment and not merely a supplementation of the complaint. Unless the court has any concerns that Google doesn't have, this one will simply be approved now.

Here's the supplemental complaint (this post continues below the document with the key points ina bullet-point format):

15-08-06 Oracle v. Google Supplemental Complaint by Florian Mueller

A few key facts about the supplemental complaint:

  • The additional Android versions Oracle says infringe its copyrights just like previous versions allegedly did are:

    • Gingebread (released in December 2010)

    • Honeycomb (released in February 2011)

    • Ice Cream Sandwich (released in October 2011)

    • Jelly Bean (released in July 2012)

    • KitKat (released in October 2013)

    • Lollipop (released in November 2014

  • The 37 Java API packages at issue are (this is not new, just stating for a point of reference):

    java.awt.font, java.beans,, java.lang, java.lang.annotation, java.lang.ref, java.lang.reflect,, java.nio, java.nio.channels, java.nio.channels.spi, java.nio.charset, java.nio.charset.spi,,,,,, java.sql, java.text, java.util, java.util.jar, java.util.logging, java.util.prefs, java.util.regex,, javax.crypto, javax.crypto.interfaces, javax.crypto.spec,,,,,,,, javax.sql

  • Oracle points to Android's expansion into various areas:

    • Android Wear

    • Android TV

    • Android Auto

    • Household appliances such as refrigerators, microwaves, washing machines, and air conditioners

    • Google Play, the "digital storefront [that] sells apps, television shows, movies, music, books, newspapers, and magazines for Android users to download and use on Android devices"

  • Key market data Oracle's supplemental complaint cites (mostly from Gartner):

    • Android's mobile phone market share increased from 40% to 80% between 2011 and 2014

    • Android's tablet market share rose from 20% in 2011 to nearly 70% in 2014

    • more than one billion monthly active Android users

    • more than 8,000 different Android devices

    • app downloads (I'll try to contribute a tiny bit to that next year) increased from 10 billion in 2011 to now more than 50 billion

    • number of available apps increased from 300,000 in 2011 to 1.5 million now

    • mobile advertising: Android now the top platform by ad revenue (46% market share) and traffic (65% market share); Google also points to this CNET article on Android having three times the market share of mobile ad traffic as compared to iOS)

  • Google's financials: annual total revenue more than doubled from $29 billion in 2010 to $66 billion in 2014

  • On the basis of the foregoing data, the supplemented complaint argues that "Google is destroying the market for Java as a mobile platform"

It would be interesting to know what else Oracle wanted to say but left out so as to avoid opposition from Google. From the email correspondence between the parties' lawyers that Oracle attached to its motion I was able to glean the following two paragraphs (according to the documents I've seen, these were the last two paragraphs removed in order to reach an agreement):

24. Upon information and belief, Google has continued to refuse to make Android compatible with the Java platform, at least in part, because if Android applications were compatible with the Java platform, then another mobile OS provider could use the Java platform to create a mobile operating system compatible with those applications. If such a provider could attract users to a new mobile operating system capable of running both Android and Java applications, then Google would face a fundamental threat to its dominance in the market for search engine advertising, because it would not be able to direct users to its search engine.

25. Google, unlike Oracle, is not dependent upon revenues from the platform itself, because its real goal is to continue capturing search engine advertising revenues. Google is therefore able to offer at no charge what Oracle has worked hard to build and maintain, and in the process to destroy the value of the Java platform in a market that has become the most lucrative of this generation.

Basically, those two paragraphs are about the difference in business models and the implications it has. Those differences are obvious to all industry observers.

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