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Google calls for mistrial after jury's partial findings of infringement in Oracle case

Google infringed on Oracle's rights by using elements of the software firm's Java platform within its Android operating system without a licence to do so, a US court has ruled. 08 May 2012

However, the court has so far failed to rule on whether Google was allowed to use the code without permission under the 'fair use' defence that sometimes applies in US copyright law. The finding was also based on the presumption that code that acts as an interface between applications, platforms and other system elements are copyrightable - something which the court has still to rule on.

Google has asked for a mistrial declaration. It said "fair use and infringement are two sides of the same coin," according to a report by the New York Times.

A California District Court jury said that Oracle had proven that Google infringed "the overall structure, sequence and organisation" of a grouping of 37 "Java API packages" by implementing code in its Android platform but did not rule whether the internet giant had done so legitimately under the 'fair use' defence provided for by US copyright laws. Java is a technology that allows programmers to write computer code that will run in many computing environments.

Application Programming Interfaces enable applications, platforms and other system elements to communicate. The structure, sequence and organisation of APIs used in connection with the Android platform were found by the jury to have infringed Oracle's rights over its proprietary software. The jury exonerated Google of having infringed on the "documentation" of Oracle's Java programming language.

The jury said that Oracle subsidiary Sun, which owned the rights to Java technology, "engaged in conduct" they "knew or should have known would reasonably lead Google to  believe that it would not need a license to use the structure, sequence and organisation of the copyrightable compilable [Java] code". However, they found that despite this, Google had failed to prove that it had "reasonably relied" on that conduct as a justification for deciding not to buy a licence for the use of Java code from Oracle.

The jury did not issue an answer to the question of whether Google's use of Oracle's Java code was protected by 'fair use'. In the US the 'fair use' exemption in copyright law allows copyright material to be reproduced for the purposes of research and education, commentary, criticism and reporting.

Whether reproduction of copyrighted works is protected by the 'fair use' defence depends on the consideration of certain factors, including the purpose and character of use and whether it was for commercial gain or not, the nature of the copyrighted work itself, how much of the copyrighted work was reproduced and the effect of that use on the potential market for or value of the work.

The jury's ruling is based on the presumption that platform interfacing elements are copyrightable. Judge William Alsup last week asked both Google and Oracle to submit their views on a series of questions relating to whether the structure, sequence and organisation of program code is copyrightable. The parties have until 14 May to include their submissions.

Among the areas the judge has asked the companies to comment on is a recent ruling by the European Court of Justice (ECJ) which commented on the issue of whether computer program languages are copyrightable.

In a ruling published earlier this month the ECJ ruled that although the way a computer program functions is not copyrightable, the underlying programming languages and file formats may be. The ECJ said that under EU copyright laws it is possible for a programming language to be protected by copyright if it is sufficiently original and creatively expressed by the authors in a way that achieves a "result ... which is an intellectual creation".

The ECJ also determined that companies that buy a licence for a computer program can legitimately "observe, study or test" how that program functions, without the rights holders' permission, in order to "determine the ideas and principles which underlie any element of the program" under certain conditions.

In 2010 Oracle initiated its case against Google claiming that the internet giant was guilty of infringing its copyrights and patents in how it used Java technology in Android. The company claims that Google requires a licence to use the Java platform but has not bought one, and that therefore "without consent, authorization, approval, or license, Google knowingly, willingly, and unlawfully copied, prepared, published, and distributed Oracle America’s copyrighted work, portions thereof, or derivative works".

Oracle has also claimed that Google is also guilty of helping other companies that utilise the Android operating system - such as mobile phone device manufacturers - infringe its rights. "Google has [knowingly and wilfully] thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America’s copyrightable works, and works derived therefrom [without a licence to do so]," Oracle's original complaint said.

Oracle claims Google has made "unjust profits, gains and advantages" as a result of the allegedly infringing activity and is seeking an injunction "restraining Google from engaging in any further such acts in violation of the United States copyright laws". 

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Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

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