In preparation of today's Oracle v. Google case management conference, the parties filed a stipulation on statutory damages regarding Google's infringement of the nine-line rangeCheck function and eight decompiled files. Such stipulation was announced in the parties' joint case management statement on Monday.
Statutory damages can amount to a maximum of $150,000 per item. But the parties stipulated that "[t]he Court may enter an award of statutory damages under Section 3.C of the prior stipulation (ECF 1159) of $0, and can enter statutory damages of $0 in the final judgment in connection with the Copied Materials only". But today's stipulation makes reference to an earlier one according to which Oracle reserved all rights for the event that the appeals court holds the structures, sequence and organization (SSO) of the 37 asserted Java APIs copyrightable (and that Oracle also prevails on fair use, be it through a judgment as a matter of law or at a retrial): "For the avoidance of doubt, the parties reaffirm that paragraph 2 of the prior stipulation shall govern in the event that the SSO Claim or any portion thereof is ultimately submitted to a trier-of-fact for an assessment and award of monetary relief."
Also, Oracle's waiver to ask for any statutory damages at this stage "shall not be used to support an argument that a party is or is not the “prevailing party” for purposes of allocating costs, nor shall it be used to support an argument that the award is outside the range permitted by 17 U.S.C. § 504(c)."
Today's stipulation shows once again that Oracle is simply not interested in what would amount to chicken feed for a company of Oracle's and Google's stature, based on only secondary parts of its copyright infringement claim. For Oracle, the next step is to appeal Judge Alsup's final judgment (for the exact wording of which the parties made alternative proposals) to the United States Court of Appeals for the Federal Circuit(CAFC). The API SSO copyrightability issue is going to be the central issue for the appeal. If Oracle prevails on that one, then it's also interested in presenting a coherent copyright infringement claim to the jury in connection with damages and the disgorgement of copyright infringer's profits. Secondary infringements will then be part of the story. But in the other event, Oracle just isn't interested in statutory damages. It could easily spend more on legal fees to argue the appropriate amount of those damages than what it would get. What Oracle wants is to "bring Android back into the Java fold". The key to that is to win the API battle at the CAFC. And there will be a far more thorough, and more strategic, analysis of that issue at the Federal Circuit than in the district court. It will be a different ballgame, and the outcome may also be different.
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