Federal Circuit Seen Unlikely to Overturn Fair Use Verdict in Oracle v. Google
The legal challenge against Google’s fair use defense for its use of the coding and names contained in Oracle's Java application programming interface (API) technology in its Android mobile operating system isn't over, but there's little reason to believe the U.S. Court of Appeals for the Federal Circuit will overturn a San Francisco federal jury’s 2016 verdict against Oracle, IP lawyers said in interviews. Oracle filed an opening brief Friday in its appeal of the San Francisco jury’s verdict that Google’s use of the Java APIs qualifies as a transformative use under the fair use doctrine (see 1605260067). The Federal Circuit previously ruled on Oracle v. Google, saying in 2014 APIs are copyrightable, but remanded Google’s fair use defense to the San Francisco federal court (see 1505270036).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Oracle said it believes the Federal Circuit should overturn the San Francisco jury’s verdict because District Judge William Alsup “repeatedly undermined Oracle's case” in a way that caused the jury to wrongly find in Google’s favor. “No reasonable jury could have found such copying fair use,” Oracle said. “Each of the four statutory factors weighs against fair use.” Alsup ruled in September against Oracle’s request for a new trial in the case on claims Google concealed its 2015 ARC++ project to give Chrome operating system users Play Android Apps “without developer action” (see 1609280066).
Alsup “reinforced Google’s theme that Android was limited to the smartphone market where Java supposedly did not compete -- and eliminated one of Oracle’s central arguments -- by precluding Oracle from showing all the markets where Android and Java overlapped,” Oracle said. “Android supersedes Java in markets Java occupied before Android -- including TVs, cars, and wearables. But the district court barred all evidence of Google’s competition in any market other than smartphones and tablets.” Google had been “secretly planning” the launch of its ARC++ project for month but “explicitly -- and falsely -- denied any such plan in written discovery responses,” Oracle said. “Nevertheless, when the truth emerged, the district court declined to vacate the verdict.”
Google wouldn't comment on Oracle’s claims. Google is expected to file its opening brief in the coming months but the Federal Circuit hasn't set a filing deadline.
Several IP lawyers declined to make a definitive prediction of how the Federal Circuit would rule on Oracle’s appeal but said the same fair use questions fundamentally at issue have also been in past iterations of the case. Oracle “has been relitigating these same issues in various guises and it looks like they’re doing so again” at the Federal Circuit, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. It’s clear both Oracle and Google will focus on the record of the jury trial and select aspects of that record to support their case, but “the issue is fair use in a broader sense,” he said.
The Federal Circuit “laid out its own fair use analysis” in the 2014 decision remanding that aspect of the lawsuit to the San Francisco court and “the district court appears to have followed” that analysis in its instructions to the jury, Stoltz said. The Computer & Communications Industry Association has “taken the position that the Federal Circuit got the copyrightability aspect of this case wrong [in 2014] but we are confident that the fair use defense is going to bear out [Google’s] case” this time, said Vice President-Law and Policy Matthew Schruers. The record doesn't support overturning the jury’s decision because the judge was “very careful” in applying the appeals court’s fair use test at trial, said copyright lawyer Jonathan Band. “If the Federal Circuit thought they could rule on the fair use questions [Google presented] as a matter of law, they would have resolved it themselves” in 2014, but “instead they remanded it.”