Multiple Argument Options Available for Appeal of Second Oracle v. Google Copyright Case

It's uncertain what factors Oracle will base its appeal of a San Francisco federal jury's ruling Thursday in favor of Google in the second Oracle v. Google trial, but Oracle has several options, IP lawyers said in interviews. The U.S. District Court jury said Google's use of the coding and names contained in Oracle's Java application programming interface (API) technology in its Android mobile operating system qualifies as a transformative use under the fair use doctrine. Oracle vowed to appeal the verdict (see 1605260067). The tech sector hailed the federal jury's verdict as an important win for fair use.

There's no written opinion on the Oracle verdict as there would be if the case had been only before a judge, but “implicit in the jury's ruling is that the APIs at issue in this case are copyrightable and Oracle may find that very helpful going forward” in the appeals process, said Sentinel Worldwide CEO Steve Tepp, former U.S. Chamber of Commerce chief IP counsel. The U.S. Court of Appeals for the Federal Circuit remanded the fair use question to the San Francisco district court in a 2014 ruling that also said Oracle's APIs are copyrightable (see 1405120040). It's hard to predict how the Federal Circuit would rule on the second Oracle verdict because, although it appeared to feel that Google might have a better case to make on fair use grounds, the appeals panel appeared to be dismissive of District Judge William Alsup's view of software copyrightability, said University of Maryland IP law professor James Grimmelmann.

Oracle is likely to base an appeals challenge on Alsup's instructions to the jury on how to decide whether Google's use of the Java APIs qualified under the fair use doctrine and on the “sufficiency of Google's evidence” presented during the second trial, said Electronic Frontier Foundation Senior Staff Attorney Mitch Stoltz. If Oracle takes issue with Alsup's jury instructions, it likely will say the instructions overstated the importance of the fair use doctrine's “transformative use” factor, which stilted the jury's interpretation of the doctrine, Grimmelmann told us.

Oracle also could challenge Alsup's evidentiary rulings by arguing Alsup “kept out evidence that could influence” whether the federal jury believed Google understood that previous Java owner Sun Microsystems was claiming copyright on the APIs and insisted on licensing them, Grimmelmann said. Both an evidentiary challenge and a challenge on the jury instructions could result in a remand of the case to Alsup's court for a new jury trial, or could be found to have been “harmless” errors that didn't affect the jury's decision, Grimmelmann said. Oracle also could choose to challenge the jury decision itself, he said.

EFF and other tech sector stakeholders praised the federal jury's verdict. EFF said the decision “is an important validation of the idea that developing interoperable software need not require permission or a license.” EFF Director-Copyright Activism Parker Higgins called the verdict “bittersweet,” saying in a blog post the Federal Circuit's ruling that APIs are copyrightable still stands. “While developers of interoperable software can take some comfort in the fact that reimplementation may be fair use, a simpler and fairer solution would simply have been to recognize API labels as a system or method of operation not restricted by copyright,” Higgins said.

The jury's verdict “is great news for software developers and users," said Public Knowledge Senior Staff Attorney John Bergmayer in a news release. "Software developers always have been, and should continue to be, free to develop new products that are compatible with other pieces of software. That's how technology progresses, that's how competition works, and it's been the norm in the software industry for decades. A contrary finding would have cost the public billions and enmeshed the technology industry in yet more litigation.”

Despite a likely Oracle appeal, “this is an important win for software developers everywhere and it promotes innovation,” said Computer and Communications Industry Association President Ed Black in a news release. “The issue in this case, whether the use of [APIs] is a violation of copyright law, has major ramifications for the entire technology industry. APIs are important building blocks for all software. Allowing copyright claims to block their use by third parties would have a chilling effect across the entire software industry.”