One month and one week after the appellate opinion was handed down in the Oracle v. Google Android-Java copyright case (initial reaction to ruling, follow-up, and detailed refresher Q&A, the United States Court of Appeals for the Federal Circuit has just issued a formal mandate to the trial court, the United States District Court for the Northern District of California, remanding the high-profile lawsuit for a determination on fair use and (if Oracle prevails) remedies. Here's the document (this post continues further below):
In most of the Federal Circuit cases I watched, the deadline for a petition for rehearing appeared to be one month after the ruling, though in at least one case it appeared to be 45 days. In any event, the standard two-week deadline does not appear to apply in these kinds of cases. It appears that Google has elected not to file a petition for a rehearing. According to Rule 41 of the Federal Rules of Appellate Procedure, the appeals court's "mandate must issue 7 days after the time to file a petition for rehearing expires". The opinion came down on May 9. One month for a rehearing petition means the related deadline was June 9 -- and now we're seven days past that presumed deadline.
It's possible but still not certain that proceedings will resume in district court in the very short term. Maybe Google has realized that it can't prevail on copyrightability and will now focus on fair use, its sole remaining defense (I explained earlier this year why I don't see a "fair use" case here, though I now tend to agree with Google on fair use in the Google Books context), and exhaust all appeals in connection with fair use. That would make sense. But it could also be that Google files a petition for writ of certiorari with the Supreme Court of the United States. The deadline for that one is 90 days after entry of judgment. There has been speculation about the possibility of such a petition. I don't think the Federal Circuit's API copyrightability holding is "certworthy" because the Federal Circuit definitely got it right and just upheld longstanding principles of U.S. copyrightability rules that don't warrant another high-level review because they're crystal clear, but Google will obviously do what it believes is best for Google. I hope for both Google and Oracle that they can soon agree on a license deal, but until they have an agreement in place, they'll keep fighting in court, possibly all the way up to the Supreme Court.
Depending on how quickly things resume in district court, we may see a Google motion for a stay in the near term. I'll continue to watch the relevant dockets and will blog about further developments. At that stage or even before I may address some of what has been said and written about the Federal Circuit opinion since my last blog posts about this case. I continue to believe that the Federal Circuit opinion is excellent news for software developers (who need reasonably strong IP protection), while affirmance of the district court ruling would have weakened copyright protection for software to a very worrying extent (despite Judge Alsup's efforts to present his non-copyrightability ruling as a narrow decision).
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