It's been a few years since I last woke up to a significant procedural order ("signficant" as opposed to lawyers' appearances being approved) in Oracle v. Google. A few years too many for Oracle, which wants this resolved, but not for Google, which never went out of its way to accelerate anything here.
On Monday afternoon local time, Judge William Alsup of the United States District Court for the Northern District of California, who once compared this case to the "World Series of IP cases", did the equivalent of a soccer referee blowing the whistle when the second half starts. Here, the second half is a remand proceeding after the Supreme Court denied Google's petition for writ of certiorari about a week ago, affirming Oracle's appellate victory.
The "order setting status conference" is short:
"The parties shall appear for a status conference on JULY 30, 2015 AT 11:00 A.M. The parties shall file status reports at least SEVEN CALENDAR DAYS in advance of the hearing."
U.S. judges often prefer parties to file joint status reports, but in a case where the parties disagree on far more than they agree on, separate reports make more sense. Both parties' lawyers are now going to give the court, and by extension the general public, their view of where the case stands in terms of what needs to be done now. Three years is a whole lot of time by the standards of this industry. The fact that Android has displaced mobile Java is even clearer now.
The parties will disagree on the ramifications of the Federal Circuit ruling in Oracle's favor. While Oracle prevailed on copyrightability, the Federal Circuit, which rarely hears copyright cases, wasn't comfortable with also determining that Google's "fair use" defense was a sham from the get-go. Instead, the appeals court wanted this to be resolved in district court on remand:
"On remand, the district court should revisit and revise its jury instructions on fair use consistent with this opinion so as to provide the jury with a clear and appropriate picture of the fair use defense."
The jury instructions were not formally part of Oracle's appeal. Oracle's appellate counsel stated at the hearing that they disagreed with the jury instructions but decided to focus on copyrightability and, with respect to fair use, wanted a judgment as a matter of law (JMOL). But the passage I quoted above shows that the Federal Circuit believes Oracle would have been entitled to more favorable instructions at the 2012 trial. Google, however, will presumably argue that interoperability must be the fair use topic on remand, despite the fact, which the Department of Justice also noted, that Google "purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."
Fair use involves four factors, and the one area I focused on for the most part in my commentary back then was the one about the way in which the copied material was used, and in particular, whether that use was "transformative" or not. On this one, the Federal Circuit noted that "Google overstates what activities can be deemed transformative under a correct application of the law." I, too, felt this way. This will definitely be a major area of disagreement on remand because it's a strategic issue.
I also predict some disagreement on the admissibility of evidence used before. While it appears from the outside as if this case was going in circles, a number of important things have actually been resolved. The most important part of those is that Google's equitable defenses (relating to Google's claim that Sun had said publicly that Java was for the taking, though it was clear Google itself never believed in this) had failed before Judge Alsup, and Google did not even try to revive them on appeal. Should there be a new jury trial instead of a JMOL decision by Judge Alsup, Google can't present "evidence" that relates to a defense that is no longer in the game. And that kind of "evidence" likely confused the jury in the first trial, except for its smart foreman.
That's enough speculation for now. I really look forward to the July 23 filings.
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