Unlike the two previous Oracle v. Google copyright infringement trials, in 2012 and 2014, trial No. 3—which deals exclusively with “fair use” of the open-source Java programming language by Google— has moved along in swifter fashion.
Day 10 in the trial, being held in the U.S. District Court, Northern District of California in San Francisco, on May 23 saw both sides lay out their closing arguments before a 10-person jury and Judge William Alsup.
Alsup himself had presided over the original trial in 2012, which concluded that 37 Java application programming interfaces (APIs) Google using in development of the Android mobile device operating system were techniques that should not be copyrightable, not creative tools that could be claimed as proprietary.
A federal appeals court later overturned the verdict in a ruling backing the copyright protections of Java, a decision that led the current—and ostensibly final—trial.
Android Now a Staple of Mobile Development
Since Android was released late 2007—with Java components inside the code—the mobile operating system used in phones made by Samsung, HTC, LG and a host of other companies has exploded into the most-utilized OS in the world. More than 3 billion Android smartphones and tablets are currently active; some 1 billion devices were shipped in 2014 alone.
Since Google launched Android, the system has generated some $42 billion in revenue—at Oracle’s expense, the database maker contends, because Google copied APIs from the Java programming language into Android without getting a license from Oracle to do it.
Google contends that Java is an open-source language, originally developed by Sun Microsystems, and that it and its components can be used free of charge as long as “fair use” of the items is followed.
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize or parody a copyrighted work. Such uses can be done without permission from the copyright owner. Fair use is a defense against a claim of copyright infringement. If Google’s use qualifies as such, then it would not be considered an illegal infringement.
What Is ‘Transformative’ Use?
So what is a “transformative” use case? If this definition seems ambiguous or vague, it is. Millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.
The Oracle v. Google jury on May 23 was handed a detailed final argument that sketched out Oracle’s claim that Google “hijacked” Java technology to develop and build its Android business. Oracle inherited the Java open-source franchise in 2010 when it acquired Sun for $7.4 billion.
In his closing arguments, Oracle attorney Peter Bicks told the jury that Google “believes it is immune from copyright laws.”
“You don’t take people’s property without permission and use it for your own benefit,” Bicks said. “Google took a shortcut, and they took a shortcut at Oracle’s expense.”
Jury Begins Deliberations
The jury now begins deliberations on the sole question at the center of the two-week trial: Was Google permitted to copy the Java technology into Android under the “fair use” exception to federal copyright laws?
“They copied 11,500 lines of code,” Bicks said, reiterating a number that Oracle has pounded home to the jury over and over again. “It’s undisputed. They took the code, they copied it, and put it right into Android.”
In Google’s closing arguments earlier in the day, attorney Robert Van Nest asked jurors to clear Android of copyright infringement allegations as a matter of “fairness and fair use.”
Van Nest argued that the use of Java APIs in Android was a case of innovation, the first time the programming language was used in a mobile operating system.
“This is a very important case, not only for Google but for innovation and technology in general. What Google engineers did was nothing out of that mainstream. They built Android from scratch, using new Google technology, and adapted technology from open sources. Android was a remarkable thing, a brand-new platform for innovation,” Van Nest said.
Google: Java Is Free and Open for Use
“The Java language is and was free and open, and the APIs have always been treated by Sun as free and open, along with the language,” Van Nest said.
Google has argued that it believed Sun consented to Android’s use of Java without specific licensing, but Bicks asked the jury to conclude Google knew otherwise and acted in bad faith by pressing forward. Oracle produced a number of emails to back its theory.
For example, while Sun CEO Jonathan Schwartz praised Android on a blog when it was released, his internal emails revealed concern about Google’s conduct and copying, including a reference to Google as “scroogle.”
“He wasn’t happy about what was going on,” Bicks said.
If the jury chooses to reject Google’s fair use defense and sides with Oracle, the trial will then move to a damages phase with the same jury. Oracle has said it intends to seek about $9 billion in damages if it wins the case.