The Oracle v. Google Android-Java lawsuit is still breathing, but it's imperative to separate the parties' efforts to preserve their rights on appeal from filings that are really meant to have direct impact. Looking at some recent reports, I don't always see that distiction made as clearly as it should be. There are sincere people with genuine misconceptions; in some other cases, there's an agenda.
Seemingly unfazed by Judge Alsup's "final" judgment, Google yesterday filed a motion for judgment as a matter of law (JMOL) on various elements of Oracle's copyright claims or, in the alternative, a new trial. It noted this motion for a hearing on August 23, 2012 at 8 AM in Judge Alsup's court. Unless they settle, these parties will meet in court again, but almost certainly not on August 23 or any other date this summer, and before they meet in Judge Alsup's San Francisco court, they'll have to buy a coast-to-coast roundtrip ticket: the district court realistically won't look at this again unless and until the case gets remanded. Based on appellate statistics, a reversal of at least one of Judge Alsup's decisions is anything but unlikely. But it will take time.
The first sentence of Google's memorandum says it all:
"Google files this renewed motion for judgment as a matter of law ('JMOL'), or, in the alternative, a new trial solely for the purpose of preserving its rights on appeal in light of the fact that Oracle has stated its intention to file an appeal in this matter."
And here's what Oracle said in its first footnote when it brought its own post-final-judgment JMOL motion on June 20:
"Oracle recognizes granting JMOL on some of the copyright issues would require the Court to overturn all or part of its order on copyrightability. Nonetheless, Oracle brings this motion to preserve its rights on appeal, particularly since the Court structured the trial to accommodate the possibility of the jury verdict being reinstated on appeal. [...] Although not required to do so, Oracle also moves for JMOL on copyrightability out of an abundance of caution."
So let's apply the same standard to both parties' motions: neither party brought those motions with the slightest expectation of prevailing on even the smallest issue. They each bring these motions in order to avoid that the respective adversary will later claim that an issue was "waived" at some stage of the proceedings.
A party that files such a motion also gets two other benefits:
It gets additional space to make certain arguments. They will have to file briefs with the appeals court, but they know that the appeals court will look at the relevant parts of the entire record on these issues.
It's like a dress rehearsal. You make your point and you see what reaction you get, and then you can fine-tune your argument going forward. Google replied to Oracle's JMOL motion, and Oracle will reply to Google's. (Of course, it's also possible that a party that brings a motion benefits less from this than the opposing party.)
I'm already watching about half a dozen Federal Circuit cases and this one will be the next, or at least one of the next ones. Some people, including the emotional Linus Torvalds, have argued that an appeal is going to be a waste of resources. Others have said that there would be so much deference for Judge Alsup, and that Judge Alsup did such a great job making his decisions bulletproof, that there's no point in it. But appeals to the Federal Circuit have a significant rate of success -- the Galaxy Tab 10.1 injunction is one example, and "deference" is a far more complicated concept than the everyday meaning of the word implies. Some parts of Judge Alsup's decision, such as his position on copyrihtability, are actually going to be afforded a rather limited degree of deference, some other parts will get a reasonable amount of deference, and jury decisions (but not a failure to decide, such as on "fair use") get a fairly high level of deference.
Oracle's challenge has always been the same challenge that every plaintiff in such a case faces: you have to overcome all of the defenses -- I explained this in the logic and language of computer programmers a couple of months ago. Oracle didn't overcome all of the defenses in the district court, and that's why so far it has only had expenses and hasn't collected any money from Google (nor, which is Oracle's real objective, brought Android back into the Java fold). But based on the outcome of the jury trial, there's a finding of infringement (though Google argues that infringement must be re-evaluated if "fair use" is re-evaluated, which Oracle disputes) and there was also an advisory verdict according to which Google did not rely on Jonathan Schwartz's blog post and other statements and actions by Sun Microsystems that suggested its use of Java was virtually licensed. As a result of that advisory finding, Google's equitable defenses are very unlikely to succeed if this litigation reaches a point at which Google needs those defenses.
From the outset (as far as the spring trial is concerned) it was clear that the decision on copyrightability was going to be the single most important one. Like I said, there won't be a great deal of deference for that one. If Oracle prevails on that one at the appeals court, it's back in the game. The fact that the jury didn't reach unanimity on "fair use" is a procedural detail. If the appeals court agrees with Oracle that the "fair use" defense had to fail as a matter of law, then there won't even be a need for a retrial. Nobody can say with certainty how things are going to play out. But it's not game over, and there's no rational basis at all for considering an appeal a non-starter. It's a challenge. Business always is.
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