Oracle (ORCL) asked a U.S. appeals court Wednesday to let it again pursue claims Google (GOOG) owes it more than $1 billion for building its Android operating system, the most popular platform for mobile phones, using copied code.
Google "took the most important, the most appealing" parts of Oracle's Java programming language to create Android, Oracle lawyer Josh Rosenkranz told a three-judge panel of the U.S. Court of Appeals for the Federal Circuit in Washington.
The appeal centers on whether copyright protection is available for application programming interfaces, shortcut tools used in software to perform basic functions such as connecting to the Internet. Redwood City-based Oracle is trying to overturn a judge's finding that legal protection isn't available for Java's interfaces, which lets developers write programs that work across operating systems.
The case has split companies between those who write interface code and those who rely on it to develop their own software programs, with Microsoft joining arguments that upholding the district court's finding "would destabilize the software industry."
During 90 minutes of arguments, the judges indicated they may side with Oracle on that issue. Circuit Judge Kathleen O'Malley said that Java was freely available to programmers didn't negate its ability to obtain copyright protection, nor did the fact that it was widely used.
Should the appeals court say the packages are copyright protected, the next step would be to decide if Google's actions were permissible because it used only a portion of the code to create a new product.
Rosenkranz said the panel can rule there was no fair use of the copyrights, while Google lawyer Bob Van Nest said the issue would need to be remanded to the trial court for further review.
Oracle sought as much as $6.1 billion in damages from Google before the estimate was thrown out by the judge before trial. It could still seek more than $1 billion.
Oracle, the world's largest database-software maker, says Google used interfaces without permission -- or paying -- because it was behind schedule in developing Android and needed the operating system to extend its Internet advertising dominance to mobile devices. The result was to supplant Java and eliminate Oracle's ability to capitalize on the boom in smartphones, Rosenkranz said.
Rather than write code for basic things like how to organize security functions, Google copied the Java interfaces to speed up Android's creation and allow independent developers to come up with the applications that consumers now demand, according to Oracle.
"Google took the code for its own uses and it did it to leverage Oracle's fan base," Rosenkranz said.
Google, based in Mountain View, said those interfaces are functional steps, similar to providing map directions. Android developers came up with the millions of line of original code that makes the platform work, Van Nest said.
"Google was very careful to only use what was structural," he told the panel. "No one was able to use the Java language as a smartphone platform."
Java was created by Sun Microsystems in the mid-1990s. Oracle announced it was buying Sun in 2009 for $7.4 billion and sued a year later. Google said the code constitutes fundamental programming interfaces used by the entire industry for free. It accused Oracle of trying to backpedal on Sun pledges that Java would remain free.
"Yes, but only the command structure," Van Nest said. "They would have to rewrite millions of lines of code. That's what Android did -- 15 million lines of Android code are all original."
Separately, Google is appealing a jury verdict that it copied other parts of Java dealing with the implementation of the software. Van Nest asked the court to rule that the nine lines of code found to be copied were so insignificant that it didn't matter.
Microsoft, NetApp and EMC filed written arguments supporting Oracle's argument. Rackspace, a group of computer scientists and the Application Developers Alliance are siding with Google, saying the specific packages in the case are little more than directions without creativity.
The Federal Circuit, which specializes in patent law, is hearing the case because Oracle also had claimed patent infringement. Oracle isn't appealing the jury loss on that issue. A decision on the copyright claims isn't expected for several months.