In case you were wondering what was happening in the attempt by Oracle to destroy the Android platform by copyright, we can report that the action in the US District Court is having to take a back seat as the judge has better things to do. Surprisingly this might actually make things happen all the sooner.

We reported and commented back in August 2010 on Oracle's legal action against Google over patent and copyright infringements relating to the Android OS. The story has become ever more complicated since then and in picking it up now I'm indebted to Groklaw's accounts of developments.

In early October Google filed its Answer with Counterclaims,  which as well as being a rebuttal asked that Oracle's complaint be dismissed and for a judgment in favor of all its counterclaims. In this document Google requested a declaratory judgment that it had not infringed or contributed to any infringement of any of the patents and a declaration of the invalidity of all the Oracle claims and for Oracle to pays all costs and expenses including Google's attorneys' fees and expert witness fees.

At the end of October Oracle filed an amended complaint in which it clarified its copyright infringement claims. In particular it stated:

Android includes infringing class libraries and documentation. Approximately one third of Android's Application Programmer Interface (API) packages ... are derivative of Oracle America's 19 copyrighted Java API packages.

This document constituted a demand for a jury trial but at a hearing on February 9, 2011 the Judge in the case told Oracle and Google that due to his involvement in a large criminal case he was going to be unable to devote time to civil motions. He therefore invited the plaintiffs to file a summary of what they'd like to file in a motion in a request to him, and the other side can respond if they wish to oppose two business days later.

Google has been the first to respond and has sent a three-page letter to Judge William Alsup, asking leave to file a motion for summary judgment on Count VIII of Oracle's Amended Complaint in Oracle v. Google.

Count VIII is the one about copyright infringement and Google's position, translated by Groklaw into non-legalese boils down to:

"What we did isn't actionable, being covered by fair use or the files are so few their use is de minimis or they are not copyrightable."

In its letter to the judge Google maintains that the  API files identified by Oracle are unprotectable:

Oracle's allegations are that Android "copies" portions of certain basic, functional Java Application Programming Interfaces or "APIs," which are interfaces that consist of common names of Java programming language constructs, methods of operations, commands and other functional elements. The use in Android of such common and unprotectable elements is purely functional, namely, to enable applications written in the Java programming language to run on Android devices and to enable programs created by developers for the Android platform to interoperate with existing third party, Java-based software and tools. Such use cannot constitute copyright infringement as a matter of law.

Google also points out that the 12 files at issue, out of nearly 100,000 comprise in the aggregate less than one percent of Android and a similarly small percentage of Oracle Works and the use is therefore de minimis and not actionable.

It also makes the argument that you can't copyright in software:

"ideas, concepts, processes, procedures and methods of operations; words, names and short phrases; functional elements; and elements that are in common use, as to which there are only a limited number of means of expression or the expression is dictated by technical or compatibility requirements, that are in the public domain".

So now the ball is in Oracle's court to oppose letting Google file the motion. Then Judge Alsup will have to decide whether to allow Google to file the motion or not.

Stay tuned for the outcome as the future of Anroid hinges on it.

Oracle sues Google for Android Java use