Basically this is the same as the SCO vs Linux case. The difference being that the copyrights on UNIX that SCO claimed to own were old, vaguely written and not covered by later, more onerous law. Sun’s copyrights are more clearly formulated under modern copyright law so Google’s defence relies completely on the Fair Use* of Oracle’s copyrighted apis.
In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.
http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/
In this sense Android is making a cultural reference, a quote or a “parody” of the Java apis. It’s what programmers do all the time when they make their own clean room implementations of various software conventions. Things like, say, commands like “printf”, ” do…while” or implementing Perl’s regular expression syntax.
If Google loses this case then so too will the entire software industry as predatory companies start to pick over and look for all the copyrighted “cultural references” programmers have used in published code.
* a protection that doesn’t exist at all under Australian copyright law btw
Via Chris Robato
John Hardy Developer 
If Oracle wins this case, software development as we know it will be… well, not destroyed, but the changes will have implications that are almost beyond contemplation. If an API is copyrightable, there isn’t a single computer or device you own or use that would not instantly become illegal.
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Yes it’s hard to imagine. It’s even harder to imagine what to do next. All new code development would grind to a halt.
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I was just thinking about the sco case similarities the other day. I think a difference is that Oracle is still a viable business, with somewhat deep coffers. Both sides can afford big guns, but are presumably also less desperate than the sco parties.
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Fair use may not exist in statute, but does it exist in common law?
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I don’t know. The AG George Brandi’s has dismissed its necessity whereas it has been made regular use of in the United States. The United States is the home of efforts to extend copyright for rights holders and also to resistance to these efforts. Australia just blithely accepts restrictions without ever considering the implications to personal liberty – we’re just not wired that way. I’m not sure what the Common Law provides.
One early case of fair use I recall was over the book “How to read Donald Duck” written by some Chilean social critics in the 1970s which included excerpts from the comics. Disney sued over unauthorised use of its copyrighted materials but lost.
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What just came to me was something more local, Samba with regard to Microsoft, specifically interop replication of protocols via reverse engineering. Prior works exist in our field that are relevant and have for ages. The Googs may wish to consider reference to that EC case.
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Deryk Robosson: Er, fair use is explicitly defined in statute. Common law doesn’t even have copyrights — these were statutorily created by queen Anne.
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Andres Soolo I’m looking at the Copyright Act 1968 (Cth) and nothing within Division 3 provides for exclusions in relation to this topic.
Whether copyright exists under common law is immaterial. It is entirely possible that there have been fair use arguments presented and ruled upon. What Act are you referring to that Queen Anne gave assent to? I’m happy to have a read. If it was enacted prior to 1901, it applies here in Australia, unless of course, it had been repealed within the United Kingdom and later repealed here as a result.
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Deryk Robosson: Wrong Copyright Act; wrong country; wrong time.
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