[aprescott]

I'd be interested in hearing about the process of returning to the District Court (or really any previous court) to defend on a fair use argument. Was that case not closed? Was it left pending until the question of copyright itself was addressed by the appeals court?

[carussell]

Google's defense for the copyright phase was that the APIs couldn't be copyrighted and that even if we entertained the idea that they could be, Google's use would be fair use. The District Court, having agreed with Google on the copyrightability aspect, came to no conclusion on the fair use issue. (Fair use is an affirmative defense to copyright infringement, which means it acknowledges infringement but requires no penalty/reward.)

When the Federal Circuit court overturned District Court's decision on the copyrightability of SSO, they remanded the issue of fair use back to the lower courts. After all, both Google and Oracle's goal through all this is not an academic exercise in establishing the general boundaries of copyright; their question is, "Are we/they going to have to pay in this case?".