At the end of the Oracle v Google trial, which Oracle lost when the jury found no patent infringement and the trial judge ruled here that APIs were not copyrightable so there was no copyright infringement, Oracle vowed to appeal. Oracle has now been granted a retrial and a higher authority says that APIs can be copyrighted.

It is almost two years since Judge William Alsup, who had presided for many months over the Oracle versus Google lawsuit, that Oracle's Java APIs were not copyrightable. This verdict appeared to secure the future of the Android system, but Oracle had too much at stake to let it stand.

We reported on the first round of Oracle's arguments in its appeal to the Federal Circuit, in which it likened software to fiction, using Harry Potter as the example. Since then the wheels of the justice system have continued to grind on, with a large cast of lawyers on either side battling out in front of a three-judge panel - O'Malley, Plager and Taranto - in the United State Court of Appeals for the Federal Circuit.

The judgement delivered today overturns the original verdict mainly by dismissing Judge Alsup's ruling that Oracle's Java APIs are not copyrightable. It states:

Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. 

Florian Mueller, author of the Foss Patents blog writes:

I disagreed with Judge Alsup on copyrightability all the way. I have been in favor of reasonable copyright protection for creative API-related material for more than ten years.

He pulls this passage out of the judgement, which does seem to be the crux of the issue - and debatable. 

• "We are mindful that the application of copyright law in the computer context is often a difficult task. [...] On this record, however, we find that the district court failed to distinguish between the threshold question of what is copyrightable--which presents a low bar--and the scope of conduct that constitutes infringing activity. The court also erred by importing fair use principles, including interoperability concerns, into its copyrightability analysis."

As we remarked about the original verdict much of the conclusion was the result of the fact Judge Alsup was a programming judge. He seemed to be of the opinion that the APIs didn't meet a minimal standard for originality to be copyrightable because they could be written by a novice programmer in a very short time. Just as you can't copyright a single word, programs have to be beyond obvious to achieve copyright status. 

This isn't yet the end of the story as Google's defence that its use of the Java APIs was fair use has been remanded for further proceedings. 

It seems that Android is staring into the legal abyss once again.

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