Uh, not sure if I follow:
I disagree (without admittedly knowing much about the legal aspects) with the author, both about his opinion and about the Gottardammerung nature of allowing Google to get away with it. But I respect his posting an article detailing his opposition, fully knowing that supporting Oracle is not a popular position, even against cuddly cuttlefish Google.
These are some criteria to look at for fair use (easily found on the Net now):
Factor 1: The Purpose and Character of the Use
- Google is out to make $, not a charity or education.
Factor 4: The Effect of the Use on the Potential Market for or Value of the Work
- Google made a lot of $$$. Oracle may or may not have lost $$ - J2ME was hardly on the way to world domination beforehand and Sun was squarely to blame for that.
So, far, good for Oracle.
Factor 2: The Nature of the Copyrighted Work
- here's where we agree to disagree. An API is not like other bits of code and has a specific intent and nature. Making API copyright rigidly enforceable is likely to lead into even more legal shenanigans and limit competition. That's a naive, dev-only, viewpoint, but we don't see the level of weird IP infringement in too many industries, compared to ours. Think rounded corners, one-click purchases, etc...
I would hate to have APIs confirmed as an always-valid basis to sue. BTW, what was the original reason for Linux Samba, if not not to respond/appear somewhat like the imitated Windows networking services? Would that have been an API infringement?
Last, take note that Sun, and later Oracle, always were the first to preach that their darling language was an open standard.
Factor 3: The Amount or Substantiality of the Portion Used
We also disagree here. Oracle originally complained that Google had copied some implementation code. IIRC the quantity of copied code was rather trivial. Fine, let Google pay $$ (anywhere up to 100M$ or so) to atone for the code they copied.
Substantiality and amount is not high in the case of API (as opposed to implementation) copying.
IP protection was always intended to balance rewarding creators vs promoting the good for society as a whole. When ABS/airbags and all sorts of other innovations come out in cars, we don't expect them to be fought over as stupidly as our own industry has the habit of doing. When I look at a ferry unloading cars simultaneously from 2 decks, using 2 bridges, one for each deck, I don't think the shipbuilder got 17 years of exclusivity from that idea before competitors applied an "obvious solution" to an existing problem. Or that boy racer car rear fins were frequent ground for lawsuits, a la "rounded corners".
Also, it is easy to claim that Google only had to get a Java license, but it conveniently forgets that J2ME was the only Java implementation allowed on mobile devices at the time.
So, sorry if I am not as clever about the legalese as Andrew, but I have an instinctive distrust of the repercussions of making APIs strictly copyrightable a priori. Or, if you prefer, finding them generally not to be ground for a fair use defense.
In another industry, with saner IP behavior, I would leave wiser heads to decide. As it is, no sorry, I don't buy this.