Something obviously being missed by you and others is an incorrect understanding by the Appeals Court. You've mentioned this one yourself: Google admits to copying 7000 lines of declaring code verbatim. The problem? I guess no one thought to go back to the court record to see Google never said they did any such thing. Here's the statement they really submitted in the original case:
"Google denies infringing any such copyrighted material ... The copyrighted Java platform has more than 37 API packages and so does the accused Android platform. As for the 37 API packages that overlap, Google agrees that it uses the same names and declarations but contends that its line-by-line implementations are different … Google agrees that the structure, sequence and organization of the 37 accused API packages in Android is substantially the same as the structure, sequence and organization of the corresponding 37 API packages in Java... "
I know legal terms and concepts are tricky and easily confused, and that's what you've done here. You are confusing copying with infringing. Google did not deny copying the 7000+ lines of declaring code, just as it did not deny copying the 9 lines of RangeCheck Code, or the other 8 files where material was found to be copied verbatim. Go read Alsup's ruling, or any coverage of the original trial. Google does not contest it copied these things, they do not say "we don't know how that got there." At trial they detailed precisely how they put it there. Google does deny they infringed. Not the same thing. One can copy without infringing, if for example, what was copied wasn't copyrightable. That's what Google argued at trial, and what Alsup agreed with—that they copied but did not infringe because what they copied wasn't copyrightable. Now the Appeals Court has reversed that and what Google admits to copying has been found to also be infringing because the Appeals Court has ruled that APIs are, in fact, copyrightable.
Page 10 of this doc:
You are confusing the API documentation with the 7000+ lines of declaring code. The declaring code is not the documentation. The jury in the first trial came to the conclusion that Google did not infringe the documentation, but they did rule that Google infringed the 7000+ lines of declaring code. No one is arguing anything about the documentation, the Appeals Court ruling has to do with the 7000 lines of declaring code that Google admits it copied verbatim.
Of course it only speaks to this case. There are other (very simple) APIs where the functionality can only be achieved by writing it one way, and there is little or no opportunity for the author to make creative choices, and without creative choices, there can be no original expression to protect. In such cases the idea (in this case the function) can't be separated from the expression of the idea, they wind up being the same, and since one can't copyright ideas, there is no original expression to copyright. However, Sun had an infinity of choices as to how it structured and organized the 37 Java API packages, and deciding among that infinity of choices is precisely what constitutes original expression, so any of the infinite choices they made to structure Java would be copyrightable. Whenever there are choices for an author to make, there is original expression for copyright to protect.
In any event it appears the Appeals Court relied on an erroneous "fact" stated on page 12 of their ruling, Google admitting to literal copying. That's evident with the court stating " nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result." Going by the above quotes from the first trial it would seem that's just what Google says they did...
Nope, Google copied verbatim, has always admitted they copied verbatim, and never denied they copied the declaring code verbatim. They argued that in copying APIs that they didn't infringe anything and Alsup agreed with that but they never denied copying, but the Appeals Court reversed Alsup's decision. Google not only copied verbatim, they infringed by copying the API declaring code verbatim. There are now just two questions left, 1) was their infringement an allowable exception (Fair Use) and if not, 2) what should the damages be.
That's a weasel's argument. The Federal Circuit is highly technical, that's why it handles _ALL_ patent appeal cases which are extremely technical. It is the court with the best grasp of technical issues in the land. People who believe that these issues should only be decided by people who agree with their anti-copyright ideology, aren't even fit to fetch coffee for those judges.
Well I've read that post several times now, and can't even find that it's a coherent argument, so I can't say I understand what he's saying and can only conclude he's another Google fanboy-in-denial who is merely arguing his "feelings." It's just a muddle trying to make the Sega precedent (interoperability can be a fair use) apply to copyrightability, even before the question of fair use is addressed. The Appeals court has definitively ruled that interoperability has no place whatsoever in deciding whether or not something is copyrightable. They utterly rejected Alsup's opinion on that as he couldn't cite any case law, legislation, or even theory on it. He made it up out of thin air! The Appeals Court does acknowledge interoperability can be relevant as a fair use defense, and have left that question open to be decided by a new jury trial.
Edited by ruddy - 5/12/14 at 11:25am