Last Updated: June 2nd, 2012

You've probably already read headlines in the last hour or two proclaiming that Google has "lost" its copyright case against Oracle, and in the strictest sense of the word, it has. Google lost on a number of counts, including the most important one, question one in the jury instructions. It also lost on a count involving nine lines of code that have long-since been removed from Android.

The first question, though, asked the jurors whether Google's use of 37 Java API packages, taken as a group, constituted an infringement of Oracle's copyrighted works. The jury, responding unanimously, answered that question with a "yes." But question 1 contained a part two, and therefore a dependent unanimity requirement (answers on all parts of the question must be unanimous):


Jury instructions via FOSSPatents

If you know anything about copyrights (and if you're on the internet a lot, you probably do know more than most people), you know that part two of question one asks the jurors something very important: was Google's use of Oracle's Java APIs fair?

Fair use is a legal defense in the United States that can apply in trademark and copyright infringement accusations, and there are myriad ways a use can be "fair." A number of factors must be considered in application of the Fair Use Doctrine, which is codified in the United States as follows:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

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

17 USC Sec. 107

The most important factor in assessing the "fair use" defense has been described by the US Supreme Court as number four - the potential effect on the value of the copyrighted work caused by the infringing use. Google argued that its use of the Java APIs constituted something that actually increased the value of Java as a whole, by increasing interest in Java among developers (which it unarguably has). Oracle argues that it demolished the company's plans to leverage Java in the mobile space and beyond, and irreversibly "fractured" the Java community - and that claim isn't necessarily without merit (though the notion that Java would have "taken off" in mobile without Android like it has is quite laughable).

Google also argued that the company's use of those APIs was fair under the doctrine because it was so transformative (a part of the "purpose and character of use" factor) that integrating them into Android basically constituted a sort of "raw material" for a completely new, radically different creation - not simply as something "slapped on" to an existing product. Something non-transformative, for example, would be taking copyrighted songs and splicing the melodies and transcribing the lyrics onto a karaoke machine (the alleged "transformation"). Clearly, Google's use goes a bit further than that.

Google stated that the source code in Android for these APIs is not even (strictly speaking) copied from any Java IP. But one niggle in that statement is the fact that some of that code came from Apache Harmony, open-source software that Oracle contends did not come without strings attached when used as Google did, and that Oracle had an interest in those APIs. The jury apparently agreed with Oracle here in its finding of infringement. But the transformation (or market value) fair use arguments caused a deadlock - the jury was unable to reach a unanimous decision.

On this basis, Google has moved for a mistrial, and will probably get it. The jury instructions clearly state that the jury must reach a unanimous decision on the individual questions (meaning both sub-parts must be unanimous), and they failed to. The reason the answers must be unanimous is because Google argued in its proposed instructions that infringement and fair use are inseparable, "two sides of the same coin," and that the jury should not be allowed to decide one without deciding the other. This also makes sense, given that fair use is a fact-based affirmative defense, and often serves as the lynchpin issue in high-tech copyright cases.

What Comes Next?

If the jury cannot be made to amend their verdict (the judge can order further deliberation, but this seems unlikely given the need to move on to the next phase of the trial), Google's mistrial motion will most likely succeed, meaning the copyright portion of the case will need to be retried at a later date with a new jury.

Of course, this all is ignoring the fact that big, big questions about the copyright portion of the case remain - all of them questions that could basically get Google out of the fire. The biggest among them is one the presiding judge will decide: whether or not Oracle's Java APIs are actually under the scope of copyrightability. The reason the judge is deciding this question is because it is not one of fact, but of law - the judge must interpret copyright law and determine whether or not Oracle's asserted IP is actually IP at all.

Next, Google has a litany of equitable defenses (doctrine of laches, copyright misuse, waiver, unclean hands, etc.) it can assert against Oracle, most of them essentially saying "you should have done this much earlier" or "you sat on this knowing it would only get worse for us the longer you waited." Such defenses rarely pan out, but given Oracle's growing unpopularity for its increasing litigiousness, who knows, they may resonate with the jurors.

The takeaway today? Not much, other than the fact that Oracle made a good case for infringement, and Google a decent one for fair use - because we're probably going to have to do it all again with a different jury. And the judge's decision on copyrightability of the APIs could render much of the copyright portion of the case moot later on, anyway.

David Ruddock
David's phone is whatever is currently sitting on his desk. He is an avid writer, and enjoys playing devil's advocate in editorials, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • aiden9

    Oracle didn't really have to make much of a case at all on the two things they "won" on[APIs and 9 lines of code(valued at $0)]. Google flat out said they did and argued why it didn't matter. The APIs face so many obstacles(including the EU ruling) I'd be surprised to see it standing when the dust settles. Have a feeling the lawyers in the trial feel the same way too given the report on how both parties were acting after court was adjourned(Oracle's bunch was mopey and glum while Google's was smiles and laughing).

    • http://codytoombs.wordpress.com/ Cody Toombs

      To be fair, if you were a lawyer, which company would you rather work for?  I know that sounds silly and like I might be foolishly assimilating Google's reputation with developers onto other groups...but I'm looking at it from another angle.

      Oracle is basically dying, they have no successful products in the User Space and a LOT of companies are spending money in an effort to unhook themselves from Oracle's Enterprise products.  Oracle dumped a ton of money buying Sun, which had the ultimate poison pill that was costing them a fortune, Java (why else would Sun have open sourced Java).  Hell, you can see they are dying because of the nature of their lawsuits, they're acting like SCO did years ago (the guys who threatened to sue anybody who installed Linux).  I'm not suggesting Oracle is on the brink (or even close), but they are headed that direction and if this suit over Java doesn't pan out, they aren't going to have much left to rely on.If you were a lawyer for Oracle, wouldn't you be quietly passing around a resume right about now?

      • http://www.androidpolice.com/ David Ruddock

        These lawyers don't work for Oracle - their firm was hired by Oracle's internal legal department to handle the case, this is how all major corporate lawsuits go. Oracle's internal legal team could never handle the amount of discovery, depositions, etc required for a case like this. The lawyers representing Oracle have little if any interest in Oracle succeeding as a company, only in making sure Oracle is happy enough as a client to keep paying them. Just FYI.

        • http://codytoombs.wordpress.com/ Cody Toombs

          Ahh, gotcha, thanks for the info.

          It doesn't explain these guys anymore, but I still stand behind my theory for the rest of Oracle's legal department ;)

      • aiden9

        Like David said, they're an outside firm hired by Oracle. Although it is worth noting these are the same smucks who had been hired by SCO. I'd look pretty glum too if I was a lawyer who lost in both of the high profile cases I was involved in.(Granted they didn't really have much of a case to work with in either instance.)

        • http://codytoombs.wordpress.com/ Cody Toombs

          Hmm, so they are the law firm of choice for those big corps turned Patent Trolls?  That's already a bad reputation to start earning, and even worse if they keep losing :D

          Let's hope Apple gives them a call soon...

      • Unbearablepleasures

        All very true Cody. Oracle does seem a bit desperate.  They badly need this win, but I'm not so sure they are going to get it.

        • http://codytoombs.wordpress.com/ Cody Toombs

          I admit, I hate Oracle the way many people hate Apple, possibly more.  I'm good at being objective when I need to be, but I do hope to see them come crashing down.  I've hated their DBMS for years, ever since I was forced to use it instead of SQL Server in college.  I hate Ellison's policy on attacking his former executives when they try to change companies (coincidentally missing from his wikipedia page), and double that for the illegal hostile takeover of PeopleSoft.  I hated them ever since news came out that they had planted spies in Microsoft to look through the trash, steal files, and even steal computers just so they could get evidence to use in the famous DoJ v. Microsoft antitrust case.

          And now they've added Patent Trolling...ironically it's on a technology that the so-called infringement has only served to make a thousand times more valuable.  Truthfully, I feel for the employees, but I'd love to see Oracle filing bankruptcy just like SCO did and disappear along with all of the hobbled technology from the 90's that they are still trying to sell today.

          Lol, phew...got that outta my system ;)
          Time to get back to coding

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  • Jack

    Interesting article.. Thanks

  • Hal Motley

    I think the ultimate question really is: "What does this lawsuit mean for Android's Java components (most notably Dalvik) in the long run?"

    While the reasons behind the case are arguable, the fact remains that lawsuits like this could damage the very architecture of the Android operating system.

    • http://codytoombs.wordpress.com/ Cody Toombs

      Nothing serious...this is just like any other patent litigation...

      The result, if Google had a near total loss, is that they and every other OEM using Android would have to pay out licensing fees, and Google (probably by themselves) would have to pay out for "Damages" (LOL, I actually laughed as I wrote that...Damages my a$$).

      The courts will not enforce a strict termination of Google's use of Dalvik/Java because it would mean drastic and irreparable damage to the industry and competition, not just in smart phones but also among the cellular industry (consider what happens to T-Mobile if their only competitive smartphone options goes bye-bye).  It would also mean that upwards of 250,000 app developers would be out of business.  Put simply, it's virtually impossible for a judge to lay down the ban hammer on Dalvik, he'd be drawn and quartered by day's end.  That doesn't mean a judge couldn't enforce a timed withdrawal of Dalvik/Java from Android, something like 3 years.  I can't think of any good examples of this type of decision, but there are several.

      Of course, all of that implies that every decision goes completely against Google and SOMEHOW Google's lawyers do not cry for a settlement OR Oracle wouldn't agree to settle.  Oracle is looking for money, not to stop Java's spread through Android.  Google just doesn't want to pay out that money (understandably).  If everything goes the wrong way for Google and the licensing became prohibitively expensive, then they may choose to abandon Java in favor of the recently ported and even open-sourced C# alternative from Xamarin called XobotOS...and I'd be thrilled about that btw, C# is streets ahead ;)  That would set Android back by about 18-24 months from the fairly rapid development it's experiencing today.  There's more I could say on this, but it's not going to happen, so I'll stop here ;)

      • http://www.facebook.com/profile.php?id=1745689461 Hal Motley

        Thanks both of you for your solid replies (especially you Cody, how do you type this much?). I think I understand now! :-)

        • http://codytoombs.wordpress.com/ Cody Toombs

          My handwriting is awful, always was...so I learned to type really fast ;)

    • ScottyByrd

       Ultimately it means very little. I remember reading somewhere those 9 lines of code were removed in Android 4.0

  • tBs_Battousai

    I think Oracle might be playing a dangerous game here, if they win they run the risk of damaging the whole AndroidJava ecosystem and run the risk that everyone will jump ship to Tizen as it's Linux (so I read) and apps are based on HTML5, Java might disappear from the mobile landscape forever...

  • ssj4Gogeta

    What I'm really interested in and worried about is copyrightability of API's.
    Firstly, it doesn't make any sense to be able to copyright function declarations.
    Secondly, it will probably mean, if I understand correctly, that open source versions of commercial programs/libraries will be illegal. Thankfully, the EU did rule against that.