Oracle is now asking for $9.3 billion in damages in its copyright lawsuit against Google over the use of Java in Android, about ten times the sum it was seeking back in 2012 at the start of the original trial.

This figure for punitive damages has emerged as Oracle and Google prepare to go back to court for a new trial, due to begin on May 9, at which both  Oracle's Larry Ellison and Google's Eric Schmidt will be present.

The new trial, to be heard by Judge William Alsup is over the issue of fair use of the Java APIs and comes after an already convoluted history.

It was August 2010 when Oracle initiated its lawsuit against Google citing both patent and copyright infringements. After several delays the case to come to trial in April 2012 with the outcome that the jury unanimously denied all eight of the patent infringements asserted by Oracle but deadlocked on Google's fair use of copyright defence.

Judge Alsup then made fleeting legal history by coming to the decision Oracle's Java APIs Not Copyrightable, a ruling that was then overturned by a higher court, see Oracle Wins Copyright Appeal. Google in turn appealed to the Supreme Court, which declined it a hearing see Supreme Court Refuses To Reconsider API Copyright Decision.

So now the matter goes back to Federal District Court in San Fransisco and some details of Oracle's claim have already emerged in a report prepared by James Malackowski, an expert hired by Oracle.

He outlines the support for this claim, which is mostly for profits from Infringed Java Copyrights, referred to by Google as the 37 APIs, with the following "facts":

• The Infringed Java Copyrights were critically important to the timing of Google's launch of the Android platform
  
  
• Google's strategy in launching Android as a mobile platform was to ensure a continuing revenue stream for search services in connection with mobile advertising. Mobile search has generated has generated significant advertising revenue and profit for Google, and the Android platform is a critical component of Google's overall mobile search business.
  
  
• The Infringed Java Copyrights are necessary for and critically important to the ongoing operation of the Android Platform and its applications.
  
  
• Absent Google's use of the Infringed Java Copyrights, Sun would have generated significantly more licensing revenue at least from its Java ME platform.
  
  
• Absent Google's use of theInfringed Java Copyrights, Sun was strategically positioned to introduce a successful mobile platform either itself or through a license.

Given that the sum of $9.3 billion would be equivalent to almost double the profit of $4.9 billion made by Google's parent company Alphabet last quarter, Google is contesting Malackowski's evidence and last week Google lodged a motion to exclude parts of it from trial claiming it:

"ignores the statutory standard for copyright damages and fails to offer anything resembling an expert analysis"

Google argues that the 37 APIs are:

"a fraction of a percent of the code in the complex Android smartphone platform"  

and so its wrong to equate the value of the entirety of Android with the value of the 37 APIs.

Google also asks that 

Malackowski's admitted speculation concerning Oracle's lost profits from its failure to launch a Java mobile based operating system should be stricken,

referring to project Acadia Sun's effort to develop its own Java/Linux mobile operating system. 

Having been previously unaware of Project Acadia this prompted me to Google it and the reference I found was from the original trial, where, somewhat ironically, Google’s Counsel argued that Oracle was only suing Google because it couldn't bring a smartphone platform of its own to make it to compete with Android!

Is Oracle now trying to turn this gibe into its own attack.

A pre-trial hearing is scheduled for April 27 and no doubt we will hear more then.  

If this is the end game, it is likely to be a long drawn out one.

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