Thursday, July 25, 2013

Google's reply brief completes briefing in Oracle's Android-Java copyright appeal

Today the public version of the fourth and final brief in the Oracle v. Google Android/Java copyright appeal became available: Google's reply brief concerning the smaller items with respect to which the district court had found it liable for infringement. These items are so insignificant that Oracle told the district court last year that it wasn't interested in collecting even one cent of damages over those items unless its appeal with respect to the declaring code of 37 Java API packages succeeds. Therefore, Google's reply brief is interesting from a procedural/tactical perspective but not so much in substantive or economic terms.

Let me show you the brief anyway (this post continues below the document):

13-07-22 Google Reply Brief in Oracle's Copyright Appeal

The most important aspect of this brief is not what it says but the fact that it was filed: briefing is now complete and the United States Court of Appeals for the Federal Circuit will soon schedule a hearing. The Federal Circuit already has three very interesting smartphone IP cases scheduled for August (Microsoft-Google cross appeal of ITC ruling on Microsoft's complaint against Motorola, Apple's appeal of Judge Koh's denial of a permanent injunction against Samsung) and September (Apple-Motorola cross-appeal of Judge Posner's ruling). These other cases are patent cases while Oracle v. Google is exclusively a copyright infringement (and copyrightability) case at this stage. I guess the Oracle v. Google hearing will take place in the fourth quarter.

Regardless of whether there's much of an economic threat to Google from the district court's findings of infringement of the nine-line rangeCheck code and a bunch of decompiled test files, Google presumably appealed for the following tactical reasons:

  • As a cross-appellant it's in a better position to cause delay at various stages of the process.

  • Smaller issues that the appeals court needs to address take attention and hearing time that Oracle would probably like to see spent on the tuly important matters.

  • Google got the last word before the hearing. That last word had to be focused on the minor items Google appealed, but filing the last brief is a potential opportunity to address general questions that have a bearing on the more important issues in the case. In that regard, the following passage from Google's reply brief is rather telling:

    "Instead of providing compelling answers to those questions, Oracle's cross- appeal brief reprises some of the most troubling aspects of Oracle's main appeal from the adverse judgment on its SSO [structure, sequence and organization] claim. As in its main appeal, Oracle brushes aside the controlling Ninth Circuit case law [...]"

I have the greatest respect for how Google defends itself against infringement allegations not only in this case but also in many others. I'm still not sure it was the right choice for Google to appeal the unfavorable parts of the district court's ruling. The eight decompiled Java files, with respect to whith District Judge Alsup overruled the jury, are clearly copyrightable and not de minimis, and copying was admitted. Relatively speaking, the nine-line rangeCheck function is a better case for a challenge, but this is so insignificant that, if I were in Google's position, I wouldn't want to bother what is probably the busiest appeals court in the entire United States with something like that.

By taking an extreme on those eight decompiled Java files, Google risks appearing as just the anti-IP organization (at least anti-third-party-IP) that it is according to Oracle's reply brief. In my commentary on Oracle's reply brief I said that Google "would have [had] to be reasonably specific as to what kinds, elements and aspects of software fall within the scope of copyrightability if the appeals court affirmed the district court's ruling", but it failed to clarify this, while it's much clearer where Oracle draws the line between copyrightable and non-copyrightable program code. By trying to deprive even those eight Java source files of protection Google really positions itself as a company promoting no-holds-barred IP infringement, and I'm not sure this was the right choice. It certainly would have been poor judgment in a political debate, where you build a majority by taking centrist positions. An appeals court is different from, say, Congress, but policy considerations will play a major role in the adjudication of this appeal.

A former U.S. copyright chief, Ralph Oman, said in his amicus brief that the district court's ruling "eviscerates" copyright protection for software. If Google succeeded in the reversal of any item with respect to which the district court had sided with Oracle, then the verb "to eviscerate" would have to be replaced with "to abolish". At the hearing Google may have to explain to the Federal Circuit how its positions can be supported without abolishing software copyright.

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