Why Oracle Is Renewing Its Fair Use Fight Against Google

Oracle is at again. On Friday, the company’s indefatigable legal team asked an appeals court to declare Google committed copyright infringement when it borrowed bits of computer code to build the Android software platform.

This is just the latest twist in a legal saga now stretching into its seventh year, and that appeared to be over once and for all last summer when a jury concluded Google’s use of the computer code amounted to “fair use“—a legal defense that allows for the use of copyrighted content without permission in certain situations.

The case turns on APIs for the popular Java programming language. APIs are a set of instructions that allow different software programs to interact with each other and, in the case of Java, Google decided to replicate portions of those APIs because developers were already familiar with them.

After the trial, a judge wrote the jury’s fair use finding was reasonable, in part because Google only borrowed the “declaring code” for the Java APIs (rather than the implementing code), and likened this to the layout of a QWERTY keyboard.

While this would normally be the end of the matter, Oracle’s appeal claims the jury “reached the wrong result” and that “Google reaped billions of dollars while leaving Oracle’s Java business in tatters.”

Overturning a fact-based jury verdict is a steep hill to climb, but Oracle believes it has an opening because the judge limited the scope of the trial to the use of Java in smartphones and tablets:

The jury reached the wrong result because the district court repeatedly undermined Oracle’s case, often directly contrary to this Court’s prior opinion. The court sua sponte reinforced Google’s theme that Android was limited to the smartphone market where Java supposedly did not compete—and eliminated one of Oracle’s central arguments—by precluding Oracle from showing all the markets where Android and Java overlapped. Android supersedes Java in markets Java occupied before Android—including TVs, cars, and wearables. But the district court barred all evidence of Google’s competition in any market other than smartphones and tablets.

Oracle also calls attention to Google’s announcement, shortly after the trial, that it would use Java in a line of Chromebook laptops. Oracle may also be hoping it will find more sympathy with the Federal Circuit Court of Appeals, which shocked the tech industry in 2014 by overruling an earlier conclusion by the trial judge that APIs are not eligible for copyright protection in the first place.

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That earlier 2014 ruling unnerved developers because it raised the specter of copyright lawsuits over all sorts of APIs, which many treat as a run-of-the-mill work tool—not a creative work, which requires a license.

Google, which declined to comment on the case, must file its response in the coming months. The new appeal is likely to be heard late this year, and a verdict might not come until 2018. Oracle is asking for the appeals court to rule Google’s use of the APIs was not fair use or, alternatively, to send the case back for yet another jury trial.

Google and Oracle declined to comment on the case.

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