With Oracle and Google headed back to court soon to resume their dispute over Android, Oracle is seeking to update its lawsuit to reflect the huge gains Android has made in the five years since the case began.
Oracle says new facts could strengthen its argument that Google's use of Java in Android was not protected by "fair use," which permits copying under limited circumstances and is a key part of Google's defence.
Oracle filed its original lawsuit in 2010, accusing Google of copying some of the basic Java programming interfaces into Android. Since then, Google has released six major versions of the OS and the software has "come to permeate the fabric of our society," Oracle said in a letter filed Wednesday in San Francisco district court.
"It is in 80 percent of smartphones, in tablets, in televisions, on wearables, and even in cars," Oracle's lawyers wrote. "Android now has a billion users; Google reaps untold profits from these users through a variety of means."
At the same time, Oracle says, its Java platform "has suffered more than ever."
It asked the court for permission to supplement its original complaint to reflect Android's success and the financial gains Google has made from the OS, particularly in search advertising.
The new facts could strengthen Oracle's case against Google's fair use defense, Oracle says, particularly a factor in that defense that considers the impact of a defendant's actions on the value of the copyrighted work.
"Androids utter domination of the smartphone market, adoption of an anti-fragmentation strategy, and entry into other actual and potential Java-platform markets all bear directly on this factor and others," it says.
Neither Oracle or Google immediately replied to requests for comment.
A jury in San Francisco decided two years ago that Google infringed Oracle's copyright but was split on the question of fair use.
Meanwhile the judge in the case, William Alsup, decided that Oracle's Java programming interfaces weren't eligible for copyright protection in any case, making the jury's verdict irrelevant.
Oracle appealed, however, and the appeals court agreed with it that the Java APIs are creative works worthy of protection. Google tried to take the case to the Supreme Court, but last month it refused to hear the case.
That means, barring a settlement, the companies will head back to Alsup's court where a new jury will decide the question of fair use. And Oracle, apparently, thinks it has a stronger case than it had the first time around.