Friday, October 26, 2012

Oracle enlists additional high-profile copyright lawyers for Google Java appeal

Three weeks ago I reported on Oracle's notice of appeal of the final ruling of the United States District Court for the Northern District of California in the Java-Android intellectual property dispute. As I explained then, it would take Oracle two steps (prevailing on copyrightability and defeating the "fair use" defense) to win the copyright part of the case. Unlike Samsung in the Apple case from the same district, Oracle does not need to have a jury verdict reversed on the copyright side. Copyrightability was decided by the judge, and "fair use" was not decided by anyone (as opposed to Google having prevailed on it, as it did only in the world of spin).

Simply put, the hurdle that Oracle's appeal faces is not a function of the amount of damages Oracle was awarded and the ones it was once seeking (with any six-billion figure having been due to Google's misleading representation of Oracle's position in a filing). This case is pretty much an all-or-nothing case, not a million-dollar or billion-dollar bargaining exercise where you may meet in the middle. It's about injunctive relief more than anything else, a fact that has not changed on appeal. In the end, Oracle itself waived its damages claims for the purpose of the initial district court proceedings). The chances of Oracle's appeal hinge on the logic of the case and the decisions that have worked out in its favor, such as an API copyright infringement finding by the jury that the appeals court, or the district court on remand, could easily supplement with a judgment as a matter of law on the "fair use" issue. If Oracle had been awarded, say, 500 million dollars, its case would obviously appear stronger to the outside, but if it had to overcome, in its pursuit of injunctive relief, more hurdles (and/or higher ones) than the two I just mentioned (neither of which his high as far as the standard of review is concerned), its appeal would actually face a steeper challenge, as counterintuitive as it may seem.

The Federal Circuit case number is 13-1021. Google also appealed, and there's a second case number (13-1022), but both appeals are proceeding now as a unified cross-appeal.

Not much has happened so far, but over the last couple of days, several interesting appearances of lawyers on Oracle's behalf were entered. I rarely report on lawyer appointments (I would usually refer people to American Lawyer Media, which operates, but if such appointments provide indications as to the importance of a matter or the likely strategy, then I occasionally comment on them as well. I reported on David Boies' short-lived representation of Barnes & Noble against Microsoft and John Quinn's appearance on Samsung's behalf (almost four months before the California trial at which he had a key role). In the Oracle v. Google case, the appointments that were made these days confirm that the focus will be on copyright, even though Oracle's team also has a fair amount of patent expertise. And it's absolutely clear that Oracle is as determined as ever to prevent Google from further implementing its "embrace, extend, extinguish" strategy for Java.

Michael Jacobs (who defended Linux against SCO and was one of the leaders of Apple's winning team in the Samsung trial) and his Morrison & Foerster team are now going to work together with colleagues from Kirkland & Ellis and Orrick Herrington & Sutcliffe, two firms that, like MoFo, do a lot of work for Apple, these days especially in connection with Android (such as certain disputes with HTC).

The leader of Kirkland's Copyright, Trademark and Internet Practice Group, Dale Cendali, is an adjunct professor at Harvard Law School, teaching copyright and trademark litigation and has argued copyright matters all the way up to the Supreme Court. Diana Torres from Kirkland's L.A. office has also handled various high-stakes copyright cases, some but not all of them involving the entertainment industry, a sector in which copyright issues are litigated more frequently than in any other. Among other clients, Mrs. Torres represented the Motion Picture Association of America as an amicus curiae in an appeal relating to Napster.

Four lawyers from Orrick also bring a combination of appellate and IP expertise to the table. Let me quote just one sentence about Joshua Rosenkranz from his web profile:

The American Lawyer named Mr. Rosenkranz "Litigator of the Year" in its January 2012 edition, dubbing him "the Defibrillator" based on his streak of appellate wins for companies that "appeared to be at death's door."

Just to be clear, Oracle's case is not "at death's door" for the reasons I explained further above. But there are a few commentators out there who suggested so, including Linus Torvalds, who (as usual) did not really explain his reasoning. And this "Debrillator" is now going to work hard to prove them wrong. He is, by the way, also trying to salvage an Apple touchscreen patent.

Orrick's Mark Davies co-leads the team appealing the ITC's decision against Apple's complaint against Motorola. His appellate cases also include some copyright matters. Interestingly, one of them involved copyright of short phrases, which is related to one of many aspects of the API copyrightability issue, and copyright registration (on which Google based some of its arguments).

Two other Orrick lawyers, Gabriel Ramsey and Annette Hurst, are IP generalists with a lot of copyright expertise. Mrs. Hurst previously dealt with "fair use" issues in an appellate proceeding.

The issues of API copyrightability and "fair use" are important ones not only to Oracle and Google but to the industry at large. This case still has the potential to make history, and the Federal Circuit will without a doubt be fully aware of the importance of this matter from an intellectual property point of view. This will be one of the most interesting Federal Circuit proceedings in 2013.

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