Google and Oracle's Android copyright fight is up to a jury now

The federal jury in San Francisco is now deciding whether Google’s use of copyrighted Java code constitutes fair use, an exemption that would free the company from having to pay Oracle damages.

At issue is "declaring code" that's part of 37 Java APIs Google used. Google says it simply used selected parts of Java to create something new in the form of Android.

“What fueled the success of Android is all the things that went into it that are new and different,” said attorney Robert Van Nest of Keker & Van Nest, representing Google.

That makes Android a transformative work, so it’s a fair use of the copyrighted code, Van Nest said. He also gave other reasons it’s fair use, including that Google only used a small part of Java, that Android isn’t a substitute for Java and that its use of the code didn’t harm the market for Java.

Oracle’s attorney argued Google copied the code because it couldn’t build a mobile OS fast enough without it.

“They knew they were breaking the rules, they knew they were taking shortcuts, and they knew it was wrong,” said Peter Bicks of Orrick Herrington.

Google described the declaring code as nothing more than functional components it needed to call resources and make the Java programming language more effective. Oracle argued the relatively small amount of code has outsize significance.

"If this wasn't important, why did Google copy it" Bicks asked the jury.

After Google used the code to build Android, Oracle said it considered developing a phone platform but concluded it couldn’t compete with the free OS. It also saw Java licensing revenue from companies like Samsung shrink.

The companies used competing metaphors to help a jury of average citizens see the issues their way. Google compared the declaring code in the APIs to a filing cabinet with labeled folders, while Oracle said it was something more creative and substantial, like the books, chapters and topic sentences in the Harry Potter series.

This is the second time a jury has considered the fair use issue. Jurors in Oracle and Google’s last trial, in 2012, couldn’t reach a verdict on that issue. If this jury finds the Java in Android isn’t covered by fair use, the trial will immediately turn to the question of damages. Oracle wants US$8.8 billion.

Both sides invoked bigger issues in their closing arguments to the jury. Google said the fair-use exemption protects the kind of innovation that Northern California excels at. Oracle, itself a 132,000-person behemoth valued at more than $160 billion, cited Google’s far-reaching influence.

“It takes somebody with strength and courage to stand up to somebody like Google,” Bicks said.