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 developing: 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 damages.

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 system.

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 programmers”.

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 brief.

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 least.

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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