Judge denies Oracle's motion to throw out Google's fair use claim (ZDNET) SAN FRANCISCO - While Google is trying to push for a mistrial over the first phase of its legal battle with Oracle over intellectual property, there is still a bigger issue at hand: can APIs be copyrighted? Technically, that issue is for Judge William Alsup to decide, which could change the whole future of this case. That also plays into the partial verdict that the 12-person jury returned at the U.S. District Court of Northern California on Monday afternoon. It was a bit of a mixed bag because while the jury found that Google infringed upon Oracle's copyrights of the 37 Java APIs implemented on Android, they could not come to a unanimous decision if Google proved that it was a case of fair use or not. In an afternoon session at the courthouse at which the jury was not present, attorneys for both Oracle and Google debated for two hours about what can be considered an an example of fair use, if fair use is a matter of law, and what can be copyrighted in the first place. Although he didn't offer an official ruling yet on whether or not APIs are copyrightable, Alsup's line of questioning throughout the hearing hinted that he is leaning towards declaring that they are not. However, Alsup did deny Oracle's motion for a judgment as a matter of law that fair use can't be claimed in this case. Basically, that means Google still has a shot at winning this on fair use. Before that ruling came, both sides repeated condensed versions of their arguments from the first two weeks of the trial, which eventually came off looking like last-ditch efforts. Oracle's lead counsel Michael Jacobs started off by citing precedent cases since 1992 that didn't find fair use as a matter of law. His main point was that Google's use of the 37 Java APIs was not a case of fair use anyway because it was commercial and did not re-purpose the APIs for something new. Jacobs also reiterated that Google used those 37 packages because they were the most popular. "Popularity does not allow for infringement," argued Jacobs, "Investment doesn't allow for infringement." Google attorney Robert Van Nest countered by stating that "commercial use is one factor," and that we have to weigh all the factors that the jury deems appropriate. Van Nest also fought back against Oracle's creative slant argument in which Jacobs has previously compared writing an API to writing a poem or a song. "This is a situation where we're talking about computer software, which is purely functional," Van Nest argued. Soaking all of the information in, Alsup remained steady on the stand even as the lawyers in front of him started to look more agitated - and possibly nervous - of where he might be headed in terms of a final ruling. Alsup conceded that there are at least three out of four factors that defend Google's argument for fair use, which he added "would deny a global win for Oracle on this point." But Alsup also blamed Oracle's legal team because he said they put it to the jury this way. Jacobs rebutted that if he approved Google's fair use argument, it would be "devastating" to the Java business model. "If Google can do it, so can the next guy," Jacobs added. But Alsup continued to demonstrate his understanding of the makeup of the Java packages, remarking that along with names, methods in APIs are not copyrightable because if a developer wants a particular function, there is only one possibility. "Oracle doesn't have a monopoly on that," Alsup continued. If you want to have a function, that is the only way to write it. Jacobs tried to distinguish that Oracle's case is not about any single method or group of methods but rather the combination of elements and the structure, sequence and organization of the Java APIs. To that extent, Jacobs argued, they would be protected by copyright. Nevertheless, the fair use card is still at play. In the end, it is still unclear as to how the first phase of the trial will be wrapped up -- if it is at all. The fair use debate could still be sent back to the jury, or phase one could be declared a mistrial. If the latter route pans out, the copyrights phase of the lawsuit would be retried with a new jury. This article first appeared at ZDNet.