Most jurors sided with Google on APIs and 'fair use'

They considered Android a 'transformative' work or thought the Java APIs were more functional than creative

Most of the jurors in the Oracle v Google trial thought Google's use of 37 Java APIs in Android should be allowed under the doctrine of fair use, one of the jurors revealed Wednesday after the trial had ended.

Nine jurors thought Google's use of the APIs (application programming interfaces) should be considered fair use, Greg Thompson, the jury foreman, told reporters outside the courtroom. But the other three jurors, including Thompson, did not buy that argument.

The jury's verdict had to be unanimous, so the nine-to-three split meant that the jury ended up not answering one of the most significant questions in the trial. That's one reason why the legal fight between Google and Oracle over Android is not over yet, even though Google emerged largely victorious from this battle.

Oracle sued Google in August 2010, arguing that its Android OS infringes Java-related patents and copyrights that Oracle acquired when it bought Sun Microsystems. The trial was held in two phases, the first to address the copyright claims and the second for the patent allegations.

The jury rendered its verdict Wednesday that Google had not infringed either of the two Java-related patents at stake. With the jury split over the earlier copyright question, there were no damages for them to decide on and they were dismissed.

On the copyright question, the jury agreed that Google infringed Oracle's copyrights by copying 37 Java APIs into Android. But they couldn't agree whether that infringement was protected by fair use, the doctrine that defines when copying may be allowed.

Those in favor were swayed by Google's argument that its use of the APIs was "transformative," Thompson said, meaning that they considered Android to be something new and different from the original work, which was the standard desktop edition of the Java platform. The transformative nature of a work is one of the key tests for fair use.

Jurors were also swayed by the idea that the APIs were functional in nature, Thompson said, another factor that tends to favor a fair-use argument. Google had told the jury the APIs are an essential part of Java and that the language is useless without them.

A gaggle of reporters descended on the jury as it filed out of the courtroom. Thompson, a 52-year-old retirement plan specialist from Fremont, California, was the only one who agreed to be interviewed, and he was peppered with questions about how the jury reached its decisions.

Oracle's legal team also asked questions and took notes. They may have to try the fair-use question again in front of a different jury.

The trial has been a complex one, and what happens next hasn't been completely decided.

The judge in the case, William Alsup, has still to make an important ruling on whether the Java APIs can be copyrighted at all under U.S. law. That's a contentious issue and one that could have ramifications for programmers on other platforms.

He has been considering that question throughout the trial and could issue his ruling next week.

If Alsup decides the Java APIs cannot be copyrighted, the question of fair use becomes irrelevant for now, though Oracle is likely to appeal the judge's ruling to a higher court.

If Alsup rules that the Java APIs can be copyrighted, he will have to decide how to proceed on the question of fair use. One option, which Google favors, is to start the whole trial over before a new jury. Oracle's preference is to retain the infringement part of the verdict and have a new jury decide the question of fair use.

Alsup may also have another option. If he decides the Java APIs can legally be covered by copyright, Google is likely to appeal that decision. If it does, Alsup might let the higher court hear its appeal before making another jury consider the question of fair use. That way, if the higher court decides that the APIs can't be copyrighted, a second jury's time hasn't been wasted.

Whatever happens next, Oracle has emerged from this trial with much less than it hoped for. Last year, its damages expert was discussing awards for Oracle as high as US$6 billion. The judge asked him to redo his calculations twice, and by the time the trial started, Oracle was seeking about $1 billion in damages.

In the end, Oracle managed to hold Google liable for copying just nine lines of code into Android, for a function called rangeCheck, and eight other small files. The judge will decide what damages Oracle is to receive for that infringement, though they are not expected to exceed a few hundred thousand dollars.

James Niccolai covers data centers and general technology news for IDG News Service. Follow James on Twitter at @jniccolai. James's e-mail address is

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