One shot left for Oracle?

Oracle vs Google – Judge denies Oracle’s attempt to scupper Google’s ‘fair use’ defence

Chris Mayer

The fair use debate continues, with Judge Alsup surprising the court by ruling against Oracle’s motion for a judgment as a matter of law that fair use can’t be claimed in this case.

As Google presses forth with a proposal
for a mistrial
over the copyright portion of this court case,
the trial continues. You wouldn’t know it though, with the most
salient information being retrieved in the fallout via multiple

After the jury were deadlocked on the contentious issue of ‘fair
use’, Judge Alsup denied Oracle’s attempts to have it ruled as a
matter of law, given the evidence before him. Away from the eyes of
the jury, Oracle and Google’s legal teams engaged in a two-hour
discussion yesterday afternoon over what constitutes ‘fair use’ in
this case – and mainly reiterated their arguments once more,
effectively making last-ditch attempts to persuade the judge.

For guidance, here are the four main components of fair use,
according to US

  • The purpose and character of the use, including whether such
    use is of commercial nature or is for nonprofit educational
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation
    to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value
    of, the copyrighted work

Judge Alsup has still yet to offer up a verdict on the
copyrightability of APIs, acknowledged already as the key part of
this trial, with it centering on 37 Java APIs that Google are
accused of using in building Android. But this moment could signal
that he’s leaning towards the view that APIs can not be

If Alsup were to rule this way, the earlier SSO infringement
would be left meaningless, leaving Google with a sole infringement
– the nine
lines of rangeCheck code
. If you were in any doubt before, it’s
now pretty clear that Oracle’s potential damages are even smaller
fry now. Should we reach a retrial, the previously hesistant judge
has now suggested that it should be determined what portions can be
copyrighted from the outset, and then decide fair use based on that
afterwards. This seems logical to reduce jury indecision, although
there would still be a raft of appeals following on. 

Interestingly, the Free Software Foundation (FSF) offered their
view on the jury’s partial verdict, with Executive Director John
Sullivan making the following statement:

Were it grounded in reality, Oracle’s claim that copyright
law gives them proprietary control over any software that uses a
particular functional API would be terrible for free software and
programmers everywhere.

It is an unethical and greedy interpretation created with
the express purpose of subjugating as many computer users as
possible, and is particularly bad in this context because it comes
at a time when the sun has barely set on the free software
community’s celebration of Java as a language newly suitable for
use in the free world. Fortunately, the claim is not yet reality,
and we hope Judge Alsup will keep it that way.

Nail on the head much? The FSF are clearly not fans of
Oracle’s conduct in this case. The ramifications for developers
should Oracle win have been well documented and this statement
merely reinforces that notion.

We’ll bring further coverage of the patents phase when
something interesting actually occurs.

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