Oracle has asked a judge — again — to throw out the verdict that found Google rightfully helped itself to Oracle programming code to create the Android operating system.
Redwood City-based Oracle lost a lawsuit against Google when a federal jury in May found the Mountain View search giant had properly used the Java code under the “fair use” provision in U.S. copyright law.
The law allows use of copyrighted material in limited circumstances based on the scope of use, to what extent the purpose is commercial, and the effect of the use on the material’s value or market potential. The Copyright Act provision can also permit use on the basis of whether it’s “transformative.” As a Stanford Library fact sheet puts it, “At issue is whether the material has been used to help create something new or merely copied verbatim into another work.”
In what stretched into an epic, six-year battle, Oracle had been seeking up to $9 billion in damages from Google. A judge already rejected a bid in May by Oracle to get the verdict thrown out. But the software and cloud company hasn’t given up.
On July 6, Oracle filed a motion in San Francisco U.S. District Court again asking the same judge, William Alsup, to toss the verdict. The company cited case law suggesting use is not legal if the user “exclusively acquires conspicuous financial rewards” from its use of the copyrighted material. Google, said Oracle, has earned more than $42 billion from Android.
“Google’s financial rewards are as ‘conspicuous’ as they come, and unprecedented in the case law,” Oracle’s filing said.
Oracle wants the judge to adhere to the narrower and more traditional applications of fair use, “for example, when it is ‘criticism, comment, news reporting, teaching … scholarship, or research.'”
Judge Alsup had noted in rejecting Oracle’s first attempt at scuttling the verdict that the jury could have “reasonably found” that the commercial use also “served noncommercial purposes as well, i.e., as part of a free and open software platform, namely Android.”
Google has consistently argued that the Java code was free and open to all and that its use of the code was transformative.
During the recent case, Google argued that Sun Microsystems, which created Java in the 1990s long before it was bought by Oracle, had no problem with Google using the code without a license.
“We didn’t pay for the free and open things,” Larry Page, CEO of Google’s parent company Alphabet, testified during the trial.
Contact Ethan Baron at (408) 920-5011 or follow him at Twitter.com/ethanbaron
