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The second round of talks between chief executives from Google and Oracle commences today, with the possibility of a settlement between the two over Google’s use of Java in Android, as Bloomberg reports this morning. This just days after the latest rebuke of Google by Judge William Alsup, who last Thursday granted only a small part of Google’s motion to throw out several aspects of Oracle’s copyright infringement claims.

Oracle claims, among other things, that when Google copied the precise order and phraseology of Java methods in developing its Dalvik virtual machine for Android, it violated copyright. The judge disagreed. Google claims that such order is necessary in order to educate developers on how APIs work, and since an API is an implementation of software that the Supreme Court ruled falls outside the boundaries of intellectual property, that the API specifications also fall outside those boundaries. The judge disagreed with that too.

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“The term API is slippery,” Judge Alsup wrote in his ruling granting partial summary judgment for Google. “It has been used by the parties and in the industry as shorthand to refer to many related concepts, ranging from individual methods to code implementations to entire class libraries and specifications.”

If an API also consists of the documentation used to inform developers how to use the methods therein, Google had argued, then Oracle can’t claim Google violated copyright by, for instance, invoking Oracle’s Java trademarks (or other things that could qualify as trademarks) in that documentation. And if the published specifications essentially replicate the content of the API code itself, Google continued, then the specifications cannot be characterized as infringing either. How can you say an API is protected from infringement claims but the publication of an API is not?

Google invoked a doctrine in the law described by the French phrase scenes a faire (perhaps there was no other English term available) which refers to any concept that can only be expressed in one way, perhaps using a catchy phrase. In such an instance, the law prohibits copyright of that catchy phrase – you can’t give anyone a monopoly on the expression of an idea if there’s no other way to express it. Google then invoked a second element of the law called the merger doctrine, in an effort to extend scenes a faire to the principle of infringement. If an idea can’t be copyrighted, expression of that idea can’t infringe anyone’s rights, the company argued.

The judge didn’t buy this extension:

Google’s lack of specificity is fatal. If Google believes, for example, that a particular method declaration is a scene a faire or is the only possible way to express a given function, then Google should provide evidence and argument supporting its views as to that method declaration. Instead, Google argues — relying mostly on non-binding authority — that entire categories of elements in API specifications do not merit copyright protection. This approach ignores the possibility that some method declarations (for example) may be subject to the merger doctrine or may be scenes a faire, whereas other method declarations may be creative contributions subject to copyright protection. Google has not justified the sweeping ruling it requests. Google has not even identified which categories of specification elements it deems unprotectable under these doctrines. This order declines to hold that API package specifications, or any particular category of elements they contain, are unprotectable under the scenes a faire or merger doctrines.

The judge noted a fact of life in software development that poses a problem in a courtroom: We confuse a methodology with the terms used to express it. The documentation for an API is referred to as the “API,” and the specifications entailed by that documentation are called the “API.” But Google’s not the only guilty party here; Judge Alsup also rebuked Oracle for trying to leverage the ambiguity in its favor. Specifically, Google used Java phraseology in “the API,” and that phraseology, Oracle argued, contained trademarks. By extension, even the ordinance of Google’s replication of those phrases in “the API” constituted infringement, the company put forth. That’s the one point where the judge sided with Google, and his partial grant of summary judgment pertains to that.

“Google’s argument that APIs are unprotectable methods of operation attacks a straw man,” Alsup wrote. “It is not the APIs but rather the specifications for 37 API packages that are accused. Even if Google can show that APIs are methods of operation not subject to copyright protection, that would not defeat Oracle’s infringement claim concerning the accused specifications.”

Before handing Oracle another small victory, the judge provided a paragraph of insight that was uncharacteristically not about the API argument, but possibly about the nature of the companies’ ongoing talks. In a section ostensibly entitled “Fair Use,” he cited Google’s argument that Android has advanced the cause of Java quite significantly, alongside Oracle’s contention that Android has effectively locked Java out of the smartphone market. He then left both arguments up in the air, except for this telling caveat: “Oracle and Google both employ complex business models for their respective products. The question of damages is one of the most complicated and hotly contested issues in this action. On the present record, a reasonable fact finder could disagree with Google’s rosy depiction of Android’s impact on the Java market.”

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