Not quite Miracle on 34th Street is it?

Endless Google-Oracle API spat rebooted in appeals court

Lucy Carey

Bad news for Android as U.S. appeals court indicates a retrial for Oracle is on the cards.

Previously on dramas in
An ongoing spat has been rumbling on
between Oracle and Google since 2010, when the Java stewards first
took the internet oligarchs to court for allegedly infringing the
copyright on 37 Java APIs in Android, seeking billions in

Though the defendant argued that they had free reign
to use those APIs under fair use, the jury initially delivered a
partial verdict in Oracle’s favour, without taking fair use into
consideration. After much deliberation, in Spring 2012, the
presiding judge
tossed out Oracle’s claim
, ruling that APIs were not
copyrightable – a landmark verdict that affected developers across
the industry.

Unbowed by this ruling, Oracle
returned to court
all guns blazing this February, arguing in a
new filing that the use of Java “enabled Google to rush Android to
market,” which greatly contributed to the commercial success of the

In an impassioned defence, Oracle attorney E.Joshua
Rosenkranz wrote, “Copyright protects a short poem or even a
Chinese menu or jingle…But the copied works here were vastly more
original, creative, and labor-intensive. Nevertheless, the district
court stripped them of all copyright protection. The court saw this
software as just different.”

Google came back fighting,
dismissing the appeal
on the grounds that, “Creative and
useful as the Java API may be, it is fundamentally a functional,
utilitarian work” designed for the “practical convenience of

Furthermore, the Mountain View based company argued
that Oracle are too late to claim a reversal on the
copyrightability of the 7,000 lines of non-implementing code within
the 37 Java APIs in question, due to their failure “to challenge
the instruction or verdict form” during the trial or in its opening

In this week’s episode: Now
that the dust has settled, a US court has reconsidered the case –
and, this time, the odds are skewing more and more towards a win
for Oracle. In a
hearing yesterday
, legal eagles re-examined Google’s denial of
Oracle right to copyright protection over aspects of the Java
programming language.

Federal Circuit Judge Kathleen O’Malley questioned
whether the original ruling implies that Google would also be
within its rights to snaffle APIs from companies like Apple or
Microsoft on the basis that, “This would apply to every possible
computer program out there”.

Reporters in attendance at the United States Court of
Appeals for the Federal Circuit hearing definitely seem to believe
that retrial is in the offing, judging from the Tweetbeat, at

In a further blow to Google, both judges at the
hearing batted down two of the main legal precedents cited by
Google, dismissing them as not relevant to the issue of whether
Java APIs could be copyrighted.

Oracle’s defence wants the appeals court to rule that Java
APIs were always subject to copyright, and that Google was not
entitled to a fair use defense. However, if the Federal Circuit
decides that copyright applies to the APIs, a second jury should
consider fair use.

What does this all mean? Essentially, it’s likely that
the decision that no rights were infringed by Google’s ‘borrowing’
of Java API code for Android could be overturned. And if that
happens, Oracle’s legal machine will be given the green flag to
crank into full-on damages litigation mode. As well as the
huge-mega bucks at stake, Oracle could seek to force Google to make

Android compatible with Java.

Although there is still leeway for Google to argue
that their use of Java code was legit under terms of fair use, it’s
looking increasingly likely that Oracle will come out on top. And
that would be a big spoke in the wheel of Google’s plans for
driving forward full-scale Android domination in the next year.

Should the reversal be passed, it’s likely that the case would
be sent back to the US District Court for the Northern District of
California, and a retrial would be on the cards. The three-judge
Federal Circuit panel hasn’t said when it would issue a ruling, but
we’re willing to bet that any resolution to this legal drama is a
long way off. Stay tuned folks!

Image by Stuart Barr

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