Developers expected to welcome ruling that finds Google’s employment of Java code in its Android operating system was fair use

Google has won a six-year court case brought by software firm Oracle, which claimed Google had infringed its copyright by using 11,500 lines of Java code in its Android operating system.

The jury ruled that Google’s use of 37 Java APIs (application programming interfaces) was fair use. The news will be welcomed by developers, who typically rely on free access to APIs to develop third-party services.

“I salute you for your extreme hard work in this case,” US district judge William Alsup told the jury, who had deliberated for three days at San Francisco federal court. “I know there will be appeals and the like.”

Oracle had contested that Google’s use of its proprietary Java code exceeded fair use, and was seeking damages of up to $9bn. Android is by far the most popular mobile operating system, with 1.4 billion monthly active users worldwide and a market share of more than 80%. Those users downloaded 65bn apps in 2015 alone.

More importantly, the “fair use” decision in this case sets a strong precedent in an industry where programs and apps are often as much constructed from various building blocks of code that already exist as they are from whole cloth.

If the company that owns the original code language – as Oracle does with Java – can claim ownership over systems which use parts of its code, in varying sizes, that might have a serious dampening effect on developers, few of whom have Google’s deep pockets and batteries of legal artillery to call into battle in their defence.

That means today’s verdict marks a victory for Google of the latest battle in a years-long war between these two titanic companies. It will probably not be the last, as Oracle is likely to appeal.

When it was developed, Android partly used the programming language Java to build its API. Java was a widely used language, developed by a company called Sun Microsystems in the 1990s.

Sun was bought by Larry Ellison’s $169bn software conglomerate Oracle in 2010, and after unsuccessfully trying to negotiate for a deal which would allow Google to license the Java APIs, Oracle sued for copyright and patent infringement, firing the first shot in the legal war.

The key question in the case was this: between a patent, in which the mechanism is the idea being protected by law, and a copyrighted text, in which the language is the idea being protected by law, where does a program – in which the language is the mechanism – fall?

First blood went to Google when in 2012 a Washington DC judge sided with Google, saying that APIs can’t be copyrighted, effectively torpedoing Oracle’s case that the Java APIs used in Android infringed upon Oracle’s intellectual property. That order which followed a jury trial which had a patent phase – which Google also won – and a copyright phase, which ended in a split verdict.



In his order, Judge Allsup – who described the action as “the first of the so-called ‘smartphone war’ cases” – dismissed Oracle’s case, saying that “the particular elements replicated by Google were free for all to use under the Copyright Act.”



But that was just the beginning. In 2013, the federal circuit court of appeals heard Oracle’s case again, and in May 2014 the federal judge reversed Allsup’s ruling, holding that the “structure, sequence and organization” of the Java API packages – there are 37 in total which Oracle claimed Google copied – and remanded the case back to the district court to be retried, this time to discover whether Google’s actions constituted “fair use” of Oracle’s technology.

If you think that all sounds rather arcane, you’d be right. Lawyers for both sides in the San Francisco trial attempted in various ways to explain to the jury how “fair use” might be contemplated in the context of programming language, often using tortuous metaphors.

“During opening and closing arguments, Google had filing cabinets to point to as a [metaphor for a] system of organising things,” said the Electronic Frontier Foundation’s Parker Higgins, who watched the trial closely.

At other moments, he said, lawyers pointed to dishes on a menu, pointing out that chefs still have to prepare those dishes themselves, or at a steering wheel and pedals as common factors in all cars of all makes, meaning that drivers don’t have to learn entire systems in each new car.

“And that seems simple enough,” he said, “the jurors seemed to be taking notes, but the underlying question of whether they understood the technical aspects, the standard business practices, remains to be seen.”

“This case should never have gotten this far,” Tyler Ochoa, a professor at Santa Clara University school of law who specializes in copyright law. “In my opinion, the federal circuit got it wrong when it reversed [the original trial] ruling and sent the case back for a retrial on fair use.”

“Oracle [was] trying to use software copyright to protect a portion of the software thats basically functional, and copyright isn’t supposed to protect functional things,” he added.



