The most dramatic outcome of the Oracle v. Google trial in spring 2012 wasn't anything the jury said; it was US District Judge William Alsup's finding that programming APIs can't be copyrighted. That sweeping ruling made the trial a total win for Google, and Alsup's opinion (PDF) is strongly supported by app developers who don't want to face legal threats for using simple "declaring code."

Not everyone sees it that way, however. Today it appears that Google's victory may be in danger. Oracle has appealed the case, and initial reports from both Bloomberg and Reuters on the oral arguments held this morning suggest the three-judge panel may be leaning against Google's position.

Oracle: Google took key parts of Java to “leverage fan base”

By grabbing parts of APIs, Google took "the most important, the most appealing" parts of Java, Oracle's lawyer told a three-judge panel.

“Google took the code for its own uses, and it did it to leverage Oracle’s fan base,” Oracle lawyer Josh Rosenkranz said. “Google was very careful to only use what was structural. No one was able to use the Java language as a smartphone platform.”

Circuit Judge Kathleen O'Malley said the fact that Java is freely available and widely used by programmers doesn't mean the code can't get copyright protection. She asked Google's lawyer, Robert Van Nest, if the company could go ahead and use APIs from Apple or Microsoft. "This would apply to every possible computer program out there," she said.

“Yes, but only the command structure,” Van Nest responded. “They would have to rewrite millions of lines of code. That’s what Android did. Fifteen million lines of Android code are all original.”

In the original case, the jury split on whether Google's use was "fair use," but the issue became moot when Alsup ruled that API's aren't copyrightable. At appeal, Van Nest argued that even if the judges find that APIs are copyrightable, the fair use issue should go back to a jury. Rosenkranz said that the appeals court could find that Google violated copyright without another jury trial.

"The judges indicated they may side with Oracle on that issue," according to the Bloomberg report.

Oracle also had patent claims against Google, which it lost. The company is not appealing those losses. However, the fact that patents were originally in the case has steered the course of this appeal. Even though it's now just a copyright case, it is being considered by the US Court of Appeals for the Federal Circuit, which considers all patent appeals.

The case below

The original trial, held in San Francisco in April 2012, was the first major court trial over Android. Testimony on the stand by Oracle CEO Larry Ellison and Google CEO Larry Page brought major press attention.

At trial, documents came out showing that Oracle thought about making a "Java phone" but never did. However, it said that Android used key parts of Java without permission, and Oracle brought copyright and patent claims against Google in court. Oracle originally sought more than $6 billion, but the judge whittled that down. Oracle wanted "roughly $1 billion" on the copyright claims, according to Reuters.

It wasn't disputed that Google wrote original code for Android, but the company based some of the operating system on Java APIs, using things like class names, packages, and methods. Oracle said that constituted using the "sequence, structure, and organization" of those APIs, and it was enough to violate its copyrights.

Judge Alsup disagreed. His opinion ripped into the whole idea of a copyright claim based on so-called "SSO" claims. "[E]nthusiasm for protection of 'structure, sequence, and organization' peaked in the 1980s," he wrote, and the phrase hasn't been used in the US Court of Appeals for the 9th Circuit since 1989.

Alsup said the pieces of APIs used by Google were like the organizing system of a library, and they couldn't be protected with copyright. "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API," he wrote.

But Alsup's view will not be the final word on the matter. The App Developers Alliance, Rackspace, TMSOFT, and Stack Exchange support Google's position on this appeal. Microsoft, EMC, and Netapp filed a brief in favor of Oracle.