On Wednesday (December 4, 2013), the Washington, DC-based United States Court of Appeals for the Federal Circuit will hold the long-awaited Oracle v. Google appellate hearing. Two major (and overlapping) ecosystems -- the Java and Android communities -- and all other software developers (large and small, open source and closed source) need clarity on the question of whether Google's unlicensed use of many thousands of lines of declaring code of the Java APIs in its Android mobile operating system is or is not above board in a legal sense. The appellate hearing is an important juncture and could prove to be a turning point. I'll listen to the official recording, which will become available a few hours after the hearing, and share my observations. But no matter what the decision (which will come down a few months after the hearing) may ultimately be, the legal process won't end at that point, unless the parties settle.
With a view to next week's appellate hearing I thought I'd put together this Q&A document that I hope will help those following the case very closely (including those who will attend the appellate hearing) as well as those who haven't looked at this matter recently but would like to get a recap of the high-level issues and the procedural situation in this landmark dispute. At this point I won't go into detail on the case and the applicable case law, which I'll discuss instead in my post-hearing report.
You can click on any of the Q&A bullet points below to jump to a detailed version.
1. Q: What are the parties' business objectives in this dispute?
A: Oracle once stated its intent to "bring Android back into the Java fold" by making Google comply with the Java rules the rest of the industry has accepted. Google seeks to defend the status quo: the use of Java material in Android without a license.
Between the district court judgment and the appellate hearing, the two companies' CEOs blamed each other for the unresolved situation. In May, Google CEO Larry Page said that a positive relationship wasn't possible because "money is more important to them than any kind of collaboration". Oracle didn't respond to that allegation, but in August, Oracle CEO Larry Ellison reminded Google of its "Don't Be Evil" meme and said that "what they did [using Java in Android without a license] was absolutely evil". Mr. Ellison also called out Mr. Page on his personal responsibility.
There are disputes in which the only question is how much one party owes the other. If Oracle v. Google was one of those disputes that are only about money, I guess there would have been a settlement a long time ago. But this is really about two platforms: Java, which Oracle acquired as part of its $7 billion acquisition of Sun Microsystems, and Android, which lets programmers write apps in Java that generally won't run on Oracle's original Java. In January 2012, Oracle told the district court that it wanted "to bring Android back into the Java fold" (i.e., ensure true compatibility between Android and Java) and end "Google's lawless conduct". That allegation was based on the fact that Google was actually negotiating a Java license with Sun (before it was acquired by Oracle) and decided to go ahead and ship Android without a license. An order by the district court quoted the following October 2005 email by Android founder Andy Rubin:
"If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way"
Google elected the second option, and by now Oracle has lost most of its Java business opportunity on mobile devices as a result of that. Java-based mobile platforms such as Blackberry and Nokia's Series 60 phones were extremely popular. Today, Android owns more than 80% of the worldwide smartphone market.
There are no signs of Oracle intending to cause harm to Android. It just wants Google to be a good citizen of the Java community. But Google wants to make its own rules. It's not just about whether Google would be willing to pay royalties (which it's not prepared to). For Google it's also about unrestricted autonomy. It wants to do with Java (and to Java) whatever it pleases. This, to Oracle, is fragmentation, which already had Sun worried back in 2007, shortly after Android was launched. It's of greater concern to Oracle what Google does with and to Java than whether and what it pays for using it.
2. Q: Does this litigation involve Google's rights to use certain Java code under an open source license?
A: No. Google could have incorporated Java into Android on open source terms, but chose to eschew the GNU General Public License (GPL) because of its "copyleft" feature.
When Oracle filed this lawsuit in August 2010, it may have looked at first sight like a patent attack by a closed source software company on a piece of open source software. In its answer to the complaint, Google raised some open source issues that were presumably directed at the court of public opinion rather than the court of law. From the beginning Google has been playing the open source card, but it never had a formal defense based on its rights under the GNU General Public License (GPL), the free and open source software (FOSS) license under which Sun Microsystems published Java. In other words, Google put up an open source smokescreen and told an open source tale, but if you use software on open source terms and someone tries to prevent you from doing so, you raise a defense that says, "I am licensed under [whatever open source license] and I'm perfectly entitled to do what I'm doing!"
If Google had ever claimed in this litigation that Android's incorporation of Java was authorized under the GPL, this would have been inconsistent with its claim that it didn't use any copyrightable material (you can only license something, on whatever terms, if it's protected) and, far more importantly, a blatant violation of Rule 11 (truthful pleading standard) resulting in sanctions for Google and its counsel. The GPL affords you four freedoms: it allows you to use software without paying for it (freedom 0), to modify its source code as you please (freedom 1), to redistribute copies (freedom 2), and to distribute your modified versions to others (freedom 3). But once you exercise freedom 3, you're subjected to the copyleft rule: you must make your modified version available under the GPL. As a result, Google would have had to publish Android under the GPL. But it did not. Android builds on top of Linux, which is GPL'd, but Android itself is, according to Google, Apache-licensed. The Apache Software License 2.0 is a non-copyleft license and, therefore, absolutely incompatible with the GPL. You're lucky if you can run GPL and Apache software on top of each other (which can also raise complicated copyright and copyleft issues), but you certainly can't take GPL'd software, such as Linux, and release it under the Apache license.
As I'll discuss in more detail in the next section, Google seeks to exercise as much control over Android as possible. If Android had to be released under the GPL (and only under the GPL, or at least a compatible copyleft license), Google would have a hard time keeping a growing number of core Android components like its Mail and Map clients or even the new on-screen keyboard (again, more about that in the next section) closed -- and Google's hardware partners would have to release their proprietary enhancements such as Samsung's Touchwiz and HTC Sense under the GPL, which would run counter to their objective of differentiation because their competitors could then use the same code.
So there is no open source license-based defense. The closest thing to it that Google raised related to only a limited amount of code that it obtained under the Apache license. But that is also irrelevant. If I take software that I don't own and put it under an open source license without authorization, this still doesn't deprive the actual right holder of anything and, especially, doesn't allow third parties to use that software without a license from the actual right holder. Those third parties may, however, point to their reliance on what appeared to be an open source license in connection with the question of willfulness. Google never made that argument in connection with the program code that's really at issue (many thousands of lines of Java API declaring code): it obtained that one directly from Oracle's (Sun's) codebase, not indirectly through other parties or third-party open source projects.
3. Q: How do the parties' business models and intellectual property strategies with respect to software platforms compare?
A: Google's approach to Android has amazing parallels to Oracle's approach to Java. The parties disagree only on how to deal with someone else's IP in a platform.
It would be mistaken to believe that Google's Android business model is more permissive or more generous than Oracle's approach to Java. Let's face it: these two companies wouldn't be as wildly successful as they are if they acted like charities. Oracle acquired and has further invested in Java to make money with it; Google acquired and has further invested in Android to make money with it, too.
There are some differences, but there are also striking parallels. At the structural level (not getting into detail on how things are run), the Open Handset Alliance (OHA) is to Android what the Java Community Process (JCP) is to Java. Both Android and Java are available under open source licenses (Apache and GPL) as well as proprietary licenses. There are neat things that can be done and indeed have been done on an open source basis -- but both companies know that those seeking to make money with Android or Java will, not in all but in most cases, prefer a proprietary license.
Both companies also have in common that they fight fragmentation of their respective platforms.
The claim that Android is "free" and "open" is no longer taken seriously by anyone in this industry. If you're interested in a thorough, well-written debunking of that claim, I recommend this Ars Technica article entitled "Google's iron grip on Android: Controlling open source by any means necessary" (also, note what it says right below this headline: "Android is open--except for all the good parts"). Not even the current Android on-screen keyboard is open source...
If things had worked out differently between these two companies and they had developed Android together (or if they had co-developed Java, but it goes back to before Google was even founded), there wouldn't be a fundamental disagreement over what's desirable or undesirable with respect to a jointly-owned platform. However, Oracle has a tradition of respecting other companies' intellectual property rights (I can't remember any major IP infringement action against Oracle itself, obviously excluding what some acquisition target may have done prior to a takeover), while Google faces IP infringement allegations by major companies and organizations all the time. Google has double standards whether its own IP or that of others is concerned (see my contribution to The Hill's Congress blog, "Sue when you're winning"). Also, Google's Android is known to the Federal Circuit as a product violating various third-party rights.
In short, they don't disagree much on what each company wants to achieve with respect to its own platform, but they have a problem because of what Google wants to do with and to Oracle's platform.
4. Q: What was the outcome in district court with respect to copyrights?
A: Google was found to infringe dozens of Java APIs, eight test files, and the rangeCheck function. The jury was hung on fair use concerning the Java APIs, and the judge held that the copied API code was not protected by copyright anyway.
Oracle originally asserted seven patents (addressed in the next section) and certain copyrights. In last year's trial, the jury rendered a partial verdict and was overruled by District Judge Alsup in only one respect, resulting in an additional finding of infringement (relating to eight Java test files).
There's been some confusion since the partial jury verdict on what really came out of last year's trial. The most stupid misconception (that I still found in some articles published this year) is that Oracle "lost" on fair use -- in reality, fair use is still in the pipeline and could be determined by the appeals court or another jury, depending on the appellate opinion. These are the facts concerning the copyright-related outcome in district court:
More than 7,000 lines of declaring code of 37 Java API packages
This is the "biggie", and Oracle's exclusive focus on appeal. By comparison, the rest of the copyright part of this case was always unimportant (see also the section on Google's cross-appeal). Oracle presumably raised other infringement issues only to show to the court and the jury the scope and scale of Google's copying. In terms of what an Oracle win means or could mean, anything other than the declaring API code item is simply negligible (I'll address it in this section only for the sake of completeness).
Google raised four categories of defenses: non-copyrightability; non-infringement; fair use; equitable defenses. I'll discuss the related holdings by the district court in separate bullet points:
Non-copyrightability defense
The parties agreed that this was for the court, not the jury, to decide. It would have been the most systematic sequence of events for the district court to firstly resolve the copyrightability question because a holding of non-copyrightability (which indeed came down, but only after the jury trial) would have obviated the need for the jury to even look at the issues surrounding the declaring Java API code. The same ruling prior to trial would have narrowed the case substantially for the jury. But District Judge William Alsup apparently knew all along that this was going to be a difficult question, and one on which the appeals court might overrule him. And the jury was going to have to render a verdict on some other (smaller) items anyway. So Judge Alsup decided to let the jury render on infringement verdict anyway, just so there wouldn't have to be a new trial on infringement in the event of a reversal and remand by the appeals court. As an additional benefit, he also got to listen to all of the testimony and argument at the trial before ruling on copyrightability.
Non-infringement defense
The jury found that Google had "infringed the overall structure, sequence and organization of copyrighted works" in terms of "the compilable code for the 37 Java API packages in question taken as a group". The judge instructed the jury to assume that this material is copyrightable (and not to think about whether it really is, which is not the job of a jury).
This holding, however, relates to infringement in a narrow sense (copying) and isn't relevant unless (i) the district judge's holding of non-copyrightability is reversed and (ii) the question of "fair use" -- presently unresolved -- is resolved in Oracle's favor either by judicial decision or a verdict by a new jury complementing the first jury verdict.
"Fair use" defense
Even infringement of copyrightable material doesn't matter if the copyist has a "fair use" defense. This is an equitable question of fact, requiring the decision-maker to weigh four different factors. Equitable decisions are up to a judge. Determinations of fact are made by a jury. The "fair use" question is generally amenable to judgment as a matter of law. But Judge Alsup declined to find that Google had a "fair use" defense and also declined to find that it had none. He deferred to the jury, which he instructed in a way that I thought was prejudicial to Oracle because, for example, it suggested that the hurdle for transformative use (one of the fair use factors) was rather low. The jury -- except for its foreman, who told the media afterwards that he wanted to throw out Google's fair use defense -- got confused and couldn't agree.
A "hung jury" doesn't mean that anyone has prevailed. If found to infringe copyrightable material (and absent any other defense, such as estoppel), Google must prevail on "fair use". Conversely, Oracle must prevail on this question (as it must overcome all other defenses) in order to win the case. If a jury is hung, the matter must still be determined (unless it's irrelevant, which it would be if Oracle couldn't get the non-copyrightability holding reversed). Neither party is in a better position than the other in this regard. Nevertheless Google managed to mislead some uninformed reporters into believing that a hung jury was a victory for it -- though it should have given some people pause that the verdict form said, "Has Google proven that its use of [...] constituted 'fair use'?" (emphasis mine)
One of the issues in this appeal is a procedural question related to "fair use". In the event that the appeals court reverses the copyrightability finding but doesn't resolve the "fair use" defense one way or another, the case would go back to the district court, which would then find the "fair use" question in the number one position of its to-do list. Oracle's position is that the appeals court should resolve fair use and enter a finding of liability, in which case the district court would only have to order remedies; but in the scenario I just described (copyrightability reversed, fair use left open) a second jury should look at "fair use", while Google would then like to be able to re-argue the question of infringement, claiming that a jury must look at infringement in order to be able to determine "fair use". Similarly (and unsuccessfully), Samsung had argued that the jury in the recent limited damages retrial should have redetermined infringement and patent validity issues rather than just award damages to Apple for a set of products it was told had been found to infringe valid patents.
Equitable defenses:
Google's equitable defenses (estoppel etc.) were decided by the judge, but he did ask the jury render an advisory verdict on a couple of related questions. The jury verdict was mixed and, on the bottom line, negative for Google in this regard. While the jury found that "Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, an organization of the copyrighted compilable code", it did not find that Google had proven that "it in fact reasonably relied on such conduct by Sun and/or Oracle in deciding to use the structure, sequence, and organization of the copyrighted compilable code without obtaining a license". A chain is as strong as its weakest link. Google would have had to convince the court on both of these questions (and some more that the jury was not asked), not just on one of them. In the post-trial judgment, Judge Alsup threw out Google's equitable defenses. We can simply forget about Google's equitable defenses for the further process. Google didn't even raise these on appeal. The testimony by former Sun CEO Jonathan Schwartz (the CEO under whose tenure Sun nearly went out of business and ultimately lost its independence) served to confuse the jury on "fair use", but fell short of what Google would have needed to succeed on an equitable defense. The relevance of that testimony was, by the way, grossly overestimated by some reporters.
Documentation of 37 Java API packages
The jury identified no infringement (and consequently didn't have to look into "fair use" on this particular item). The judge didn't overrule the jury, and Oracle isn't pursuing this item on appeal.
Three other items with respect to which the only defense was "de minimis"
The jury was also asked to determine whether three items that Google had conceded to use in Android were "de minimis", i.e., too small to be of legal relevance. The jury found that the nine-line rangeCheck method in the TimSort.java and ComparableTimSort.java source files was not too small to matter, but found in favor of Google's "de minimis" defense wih respect to the "source code in seven 'Impl.java' files and the one 'ACL' file" (i.e., eight Java test files) and the "English-language comments in CodeSourceTest.java and CollectionCertStoreParametersTests.java". The court upheld the jury's related findings except that the eight decompiled Java test files (undoubtedly much larger than the rangeCheck function, which shows just how confused and inconsistent that jury was) were found to be more than "de minimis". Six of those eight files had been shown by this blog before they were even referenced in any (publicly-accessible) court filing.
In a commercial and strategic sense, these files don't really matter, as I explained further above. Google nevertheless brought a cross-appeal in order to have those findings reversed. I'll address that one in a separate section.
5. Whatever happened to Oracle's patent assertions against Google?
A: The district judge obligated Oracle to withdraw most of its patents. Two of the seven asserted patents were taken to trial and not found infringed. Oracle is not pursuing those claims on appeal. Theoretically, patent assertions by Oracle against the Android ecosystem are still possible.
Oracle originally asserted seven patents against Google, and at the early stages of this litigation it looked like more of a patent than copyright case simply because each patent was one "count" of the complaint, while copyright as a whole was only one more count. But item counting is never the proper methodology for establishing the relevance of issues in a case.
Oracle's patents-in-suit came under reexamination pressure. I must admit that I've lost track of those reexamination proceedings, but first Office actions are of rather limited relevance and even "final" Office actions tentatively "rejecting" a patent aren't truly final (as the examples of certain Apple patents such as the '381 rubber-banding patent -- key claims ultimately confirmed -- and the "Steve Jobs patent" -- all claims ultimately confirmed -- show). But Judge Alsup leveraged the state of affairs in those reexamination proceedings against Oracle, urging it to narrow its case for the jury lest the case would be stayed pending reexamination (i.e., for years).
In January 2012, Oracle proposed that the patent part of the case be severed and stayed in favor of a near-term copyright trial. This was the first public filing by Oracle in this entire litigation that demonstrated an unequivocal focus on copyright infringement issues.
Judge Alsup didn't adopt this proposal because he didn't want to have more than one Oracle v. Google trial. Oracle then had to withdraw most of its patents -- even with prejudice, which, by comparison, another (patentee-friendlier) federal judge in the same district, Judge Lucy Koh, did not require Apple and Samsung to do (they only had to withdraw patents without prejudice, allowing them to reassert them later). Ultimately, two patents were shown to the jury, which didn't find them infringed, though Google's own source code comments and file names clearly weighed against a finding of non-infringement with respect to one of them. The judge didn't overrule the jury, and Oracle is not pursuing those patents on appeal (one of them has expired and the other one was of relatively low commercial value).
Oracle's withdrawal with prejudice of five patents and abandonment of two other patents on appeal relates to Google, not to other parties, and even with respect to Google only to the patents-in-suit. Should any of those patents be confirmed at the end of reexamination (including appeals), Oracle would not be able to sue Google over them, but it could (and I have no idea whether it would want to do that) still sue Android device makers (even before the end of reexamination). It could also sue Google over other patents. I'm not going to speculate on the likelihood. I just wanted to point out that Oracle's preclusion with respect to patent assertions against Android isn't unlimited.
6. Q: What is the scope of Google's cross-appeal and how relevant is it?
A: Google seeks to overturn the district court ruling with respect to some small amounts of program code that don't matter to Oracle, which promised not to seek damages over them unless it also prevails on the "biggie" (declaring Java API code). Google's cross-appeal is purely tactical, not strategic.
Google's appeal relates to minor items -- so minor that Oracle told the court last year it wasn't going to demand even one cent of damages for them unless it also prevails on the thousands of lines of declaring Java API code used by Google in Android. If both parties succeeded with their appeals, Oracle would be happy and Google wouldn't have any benefit from its cross-appeal. Google probably thought that a cross-appeal was an opportunity to get more time and space for its anti-copyright arguments, and would delay the process (at least at the briefing stage). There's a certain logic in this because the district court ruling is, unless one totally buys Google's "interoperability" argument, inconsistent in the sense that a nine-line function (rangeCheck) was deemed protected by copyright (as were eight Java test files) while more than 7,000 lines of declaring Java API code were not. But Google now has to take a radically anti-IP position -- arguing that everything at issue in this case at this stage is for the taking -- before an IP-friendly appeals court.
7. Q: What are the broader implications of this case and the positions taken by amici curiae?
A: Oracle is defending the copyrightability of the most creative category of program code while Google claims that non-copyrightability of such material is necessary to ensure interoperability. Many amicus curiae briefs have been filed, with Oracle having far more support from industry and support for Google having been drummed up by activists and Google-funded lobbyists for the most part.
Even though the parties' positions couldn't be further apart, they do agree that the stakes are high.
Oracle and its supporters warn that affirmance of Judge Alsup's holding of non-copyrightability would, as a former U.S. copyright chief wrote in his submission to the appeals court, "largely eviscerate[] copyright protection for some of the most creative aspects of computer software" and chill innovation. But Google and its allies also raise a huge issue: interoperability. They say that program code relevant to compatibility between programs must always be unprotected.
I've had a consistently pro-copyright position on these types of issues for many years. The first time I publicly disagreed with the Electronic Frontier Foundation (EFF), a Google-funded advocacy group, on copyright in an alleged "interoperability" context was in April 2004 at a conference in the European Parliament. (There are some issues in the patent reform context on which I agree with the EFF, by the way.)
In case of doubt, I for my part come down on the side of the authors. And in this case I don't even have doubt, frankly. I don't think Google's proposal of non-copyrightability is appropriate from a policy point of view, I don't consider it supported by case law, and in any event, I don't think Google can even rely on an interoperability argument given that Android fragments Java and that Android apps don't run on Oracle's Java platform, which Google's own witnesses confirmed in this case. In May an Oracle spokeswoman issued the following comment on certain pro-Google submissions to the appeals court: "I guess everyone is having collective amnesia about the uncontroverted testimony that Android is not compatible with Java."
The common-sense approach to restrictions of someone's rights (here, copyright protection for creatives) in order to protect someone else's rights (here, the right of developers to write software that is compatible with someone else's software) is to impose only such restrictions that are truly necessary to achieve the desired effect, and proportionate. Anything else would be overreaching and do unnecessary damage, tantamount to throwing out the baby with the bath water.
If you want to safeguard interoperability, U.S. copyright law (unlike patent law, by the way) has a tool at your disposal: fair use. Interoperability-related program code can be copyrighted, but certain forms of use (for example, development of an application for an operating system, using the APIs of the OS) would certainly be fair and, therefore, legal.
Not only is the "fair use" stage the right choice because it's a more proportionate approach than the wholesale denial of copyrightability but it's also the more logical one. Google argues in this case that the Android developers were restricted in their creativity when creating the Android APIs because they wanted to keep them (only selectively, anyway) consistent with the Java APIs. But the proper point in time at which to determine whether someone authored something sufficiently creative to warrant copyright protection is the moment when the related code was authored, not something that happens years, possibly many years, after the fact in some other place. I honestly considered it absurd for Google to argue that those APIs may have lost their copyright protection just like Aspirin lost trademark protection over time.
The choice of Java's developers wasn't restricted too much (if at all) when they wrote Java; and even Google's developers would have been free to develop their own APIs or license someone else's.
If a court looks at interoperability at the "fair use" stage, it can look at exactly what someone does with and to an earlier creator's code. Some use (such as my example of someone writing an app for Android) will be deemed fair; some other use may be unfair. Google, however, wants to have the whole question (of interoperability vs. intellectual property) resolved in its favor by nipping intellectual property in the bud, at the copyrightability stage. It presumably knows that it has a very weak "fair use" case considering the damage Android has done to Java.
In light of these positions and implications, it comes as no surprise that the leaders of the technology industry stand united behind Oracle. To the extent that Google has any support from other tech companies and industry groups, those are always Google-aligned (including Google-funded lobbyists) and known for an anti-IP stance.
I quoted from former U.S. copyright chief Ralph Oman's amicus brief. Google doesn't have any support from a former high-level IP official.
Both parties have support from professors. Google has a larger number of professors in its camp, but it obviously focused on academics since it couldn't get much support from industry players. Many of the law professors supporting Google on this copyright case also signed a letter to Congress advocating far-reaching patent reforms (which Google also promotes).
8. Q: If Oracle prevails, what will be the remedies and when and how will they be determined?
A: Oracle is seeking an injunction and damages (in that order). It has asked the Federal Circuit to enter judgment on liability, in which case the district court's job would be limited to the determination of remedies.
If the Federal Circuit agreed with Oracle to the full extent, it would enter a judgment on liability by reversing the district court's holding of non-copyrightability and by holding that Oracle was and is entitled to judgment as a matter of law (i.e., no need for another jury) on "fair use". The case would then be remanded to the district court for a decision on remedies. It would also be remanded if Oracle prevailed on copyrightability but not on fair use. In that case, the district court would have to hold a retrial on fair use (which Google argues would have to involve a new infringement determination), and depending on its outcome, there would be remedies.
Oracle is primarily interested in an injunction. Damages could also be significant, but compared to an injunction they wouldn't be overly important even in a best-case scenario for Oracle. Only an injunction will enable Oracle to "bring Android back into the Java fold", which is its stated goal.
The equitable decision on injunctive relief would be made by the district court. It could be appealed.
Both parties requested a jury trial, so damages will have to be determined by a jury. The big item would then be the Java APIs. Additionally, Oracle would also point the jury to any other (smaller) infringements identified (which findings Google is trying to get reversed on appeal), not because this would make a huge commercial difference but because a plurality of infringements is more likely to convince a jury that substantial damages are warranted.
9. Q: If Oracle prevails, what will it demand from Google and what procedural and strategic options will Google have?
A: Google will have to make Android Java-compatible and comply with the Java rules. Google can request a rehearing, file a petition for writ of certiorari with the Supreme Court, and if the case is remanded to the district court, Google will primarily try to avoid an injunction.
Assuming that the Federal Circuit sides with Oracle (at least on copyrightability, and possibly on "fair use" as well), Google will have to think hard about whether to settle or to continue to fight. In a situation in which Oracle has leverage, I believe a settlement would be about far more than just money: Google would have to bring Android into compliance with the Java standard within the foreseeable future.
Even with a Federal Circuit opinion in Oracle's favor, Google's procedural options would not be exhausted yet. Google could petition for a panel rehearing and possibly a rehearing en banc (full-court review). It could try to appeal the Federal Circuit decision to the Supreme Court by filing a petition for writ of certiorari. And if it can't prevent a remand on terms favorable to Oracle, Google can still continue the fight in district court. Fair use may remain to be resolved. Even with fair use resolved in Oracle's favor, Google can try to avoid an injunction (though the harm that Android has caused and continues to cause to Java is so obvious that I believe an injunction would normally issue) and to dissuade a jury from awarding a substantial amount of damages. The parties' focus in the remand proceedings would definitely be on the question of injunctive -- not monetary -- relief.
10. Q: If Oracle's appeal doesn't succeed, what options will it have?
A: Just like Google, Oracle could request a rehearing and file a petition for writ of certiorari with the Supreme Court.
Even with a Federal Circuit opinion in Google's favor, Oracle's procedural options would not be exhausted yet. Oracle could petition for a panel rehearing and possibly a rehearing en banc (full-court review). It could try to appeal the Federal Circuit decision to the Supreme Court by filing a petition for writ of certiorari.
As I mentioned in the section on patents, Oracle would not be precluded from asserting Java patents against Android device makers. I don't have an opinion on whether that is likely to happen. Procedural options are options regardless of probability.
11. Q: Why has this copyright case been appealed to the Federal Circuit, not the Ninth Circuit, and what standard of appellate review will be applied to the key issues?
Oracle's original complaint included patent infringement claims, and the parties agree that the Federal Circuit has appellate jurisdiction, but it will apply Ninth Circuit law. The district court ruling will be afforded little deference on matters of first impression.
Appellate jurisdiction is sometimes disputed between parties. For example, Google is trying to move Apple's appeal of a FRAND determination action out of the Federal Circuit to the Seventh Circuit, while arguing that the Federal Circuit has jurisdiction over its appeal of a Microsoft FRAND case despite previously having appealed a decision in that litigation to the Ninth Circuit. But there is no disagreement on the choice of appellate forum in this Oracle v. Google case.
Under the special circumstances of this case, the Federal Circuit will apply Ninth Circuit law. But the Federal Circuit also has its own body of case law on copyright, and some fundamental issues have been decided by the Supreme Court.
The district judge basically described his copyrightability decision as one that involves matters of first impression, which means that the appeals court will probably afford the lower court limited deference in this context. In my opinion, the district court ruling on copyrightability was simply a departure from established copyrightability principles.
12. Q: Who will argue for Oracle and Google?
A: Google's lead counsel is Robert van Nest, who also represented it in district court. Joshua Rosenkranz, who focuses completely on appellate proceedings and has already defeated Google in the Federal Circuit on Apple's behalf, will present argument for Oracle.
The Wednesday hearing will be a clash of titans not only with respect to the parties but also their attorneys. Both are proven winners with an amazing track record. Oracle's counsel has the home team advantage.
Keker & van Nest's Robert van Nest is a trial lawyer with a long history of landmark successes. His stellar performance on Google's behalf in last year's Android-Java trial has received a lot of recognition, and the file cabinet he brought along to show to the jury is now part of California legal history. That said, he was probably lucky with a jury that, except for the foreman, didn't figure out the issues and had to be overruled by the judge on one item (eight Java test files) because it made a decision that no reasonable jury (that's the legal standard) could possibly have reached.
Orrick Herringon Sutcliffe's Joshua Rosenkranz frequently appears before the Federal Circuit and other appeals courts. Dubbed the "Defibrillator" for his ability to revive cases that appeared to be practically lost after a district court ruling, he has already brought Apple's ITC complaint against Google (its Motorola subsidiary, to be precise) back to life, and based on how a recent hearing went, he's also on the winning track in the "Posner appeal" (same parties), which will likely give Apple the opportunity to assert the famous "Steve Jobs patent" against Google's Motorola in the Northern District of Illinois. Mr. Rosenkranz and his team authored a fascinating opening brief that likened Google's unlicensed use of Java in Android to a fictitious author's (named "Ann Droid") plagiarism of Harry Potter.
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