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Google Files Reply Brief in the Oracle v. Google Appeal - There Is Too a De Minimis Defense and Oracle Knows It ~pj Updated

By Pamela Jones et al.

Google has now filed its Reply Brief [PDF] in the appeal in Oracle v. Google. This cross appeal is about alleged copyright infringement for copying by mistake 9 lines of rangeCheck code (out of millions of lines of code) and eight decompiled test files that never made it onto any Android device and were done by a contractor in violation of Google's instructions.

What's the big deal, you ask? Exactly. "Google's copying was de minimis-too insubstantial in relation to the "work as a whole" to be actionable," Google writes.

If you recall, Oracle in the brief Google is here replying to, said that there is no de minimis defense in the Ninth Circuit, only fair use. Oracle also admitted this was the first time it brought this up. It also argued that the materials copied were important.

Google says there is too a de minimis defense in the Ninth Circuit, and Oracle knows it. Oracle now claims the cases establishing that defense were "wrongly decided", but earlier in the litigation "Oracle actually proposed jury instructions embodying the de minimis-copying doctrine whose existence it now denies." That bars Oracle from making the opposite argument now in the appeal, Google states.

In short, Oracle is making a big fuss over trivialities. Normally, nobody sues over this kind of trivial copying. But since Oracle has, Google says it was supposed to demonstrate why such copying was *not* de minimis, which it has failed to do. Like, who could? It's stupidly teensy weensy stuff. Why Oracle can't see that it's making itself look petty and small is the only mystery.

Full post as published by Groklaw on July 25, 2013 (boomark / email).