A Californian jury has ruled that the Android mobile platform, which is operated by Google Inc, infringes copyright relating to the Java programming language, which is owned by Oracle Corp. However, the jury were unable to decide whether this constituted “fair use”, so no award of damages has been made.

The claim was originally raised by Oracle in 2010, and relates to both patents and copyright. Google denied infringing the patents, and claimed that Java could not be subject to copyright protection as it is a publicly available software language. The action will be heard in three phases, and only the first of these has been completed.

Under the applicable law, anyone can use a work subject to copyright without consent, provided it advances the public interest by adding something new or functional. Google claimed it expanded the use of Java by developing a smartphone operating system using the language, which had not been done before.

Oracle argued that Google reduced the opportunity for it to licence Java to mobile phone makers or operators. This is because Google does not levy a charge on the use of the Android operating system, meaning it will be difficult to sell as it can be obtained for free.

The focus of the first phase was on 37 application programme interfaces (API’s), which are used to allow software components to communicate with each other. The key question was whether API’s can be subject to copyright protection. The judge told the jury to assume they were for the purposes of their decision, on the basis that he could rule they are not at a later stage in proceedings.

In any event, the jury held that Google did not infringe copyright in the API’s, and that the copyright in only one of the three sections of Java code in dispute was infringed.

Following the jury’s finding, the judge told the representatives of both parties that there had been “zero finding of liability on any copyright so far” as “the affirmative defence of fair use is still in play.”The trial will now enter its second phase, where the jury will hear evidence regarding Oracle’s claim that Google has infringed two of its patents. Following this, a third phase to rule on damages will be heard. It is unclear when the judge will make a ruling on the fair use defence, although it is likely to be during the third phase.

The potential liability of Google in the early stages of the action was estimated to be $6.1 billion. The claims made by Oracle were narrowed as the action progressed, and a majority of the potential liability now derives from the copyright infringement element. Oracle is seeking around $1 billion in damages, as well as an order preventing Google from distributing Android unless it negotiates a licence.

At this stage, both Google and Oracle are claiming they have the upper hand. However, the decision of the jury was very much a mixed one, and questions regarding the API’s, patents and damages have still to be answered.