Monday, June 29, 2015

Oracle v. Google Android-Java copyright case goes back to San Fran: Supreme Court denies Google petition

The copyrightability of code relating to Application Programming Interfaces (APIs) may elicit more heat than light from a small but vocal group of people. The Supreme Court of the United States, however, has not concluded that there is anything quite so special about the subject that Google's petition for writ of certiorari (request for Supreme Court review) in Oracle's Android-Java copyright case should be granted. At its Thursday conference, the court denied the petition, as just reported by Reuters court reporter Dan Levine on Twitter. And as he accurately noted, this is a "huge victory" for Oracle.

The order list is now available online. On page 11 you can find this entry:


The petition for a writ of certiorari is denied. Justice Alito took no part in the consideration or decision of this petition.

This means Google failed to persuade at least four justices that the Federal Circuit decision needed a review.

In January, the Supreme Court had asked the U.S. government to express its views, and it responded last month, finding Google's petition flawed and meritless.

Since the court doesn't explain its decisions on cert petitions, everyone is free to speculate, but speculation won't really matter. I fully expect the camp that opposes the copyrightability of API-related declaring code to engage in spin doctoring. They'll argue that the Federal Circuit decision won't have weight because that appeals court was only in charge because patents used to be at issue in this case, but it had to apply Ninth Circuit copyright law and, as that camp claims, got it all wrong. They'll say the decision won't be influential at all. I'll let them say this, though I may comment on the precedential relevance of the Federal Circuit decision at some other point, also in light of Cisco's decision to purposely bring a copyrightability case with certain parallels in a way that the Ninth Circuit would have appellate jurisdiction, though Cisco could just have brought a combined patent and copyright omplaint (as opposed to two separate complaints) in order to give the Federal Circuit jurisdiction.

Statistics are not speculation. Only about 1 in 100 cert petitions succeeds. But Google had apparently hoped that a well-orchestrated amicus brief campaign (see 1, 2, 3, 4) would persuade the top U.S. court to hear the case. Those amicus briefs were more than counterbalanced by the U.S. government's submission.

Google brought its cert petition at a stage at which it could also have awaited the outcome in district court before asking the top U.S. court to revive the non-copyrightability defense. But Google presumably knows that its "fair use" defense, which is the only liability-related question left to address on remand, is not really strong. While the Federal Circuit declined to resolve this question in its entirety and deferred to the district court for factual findings, it still provided some guidance that helps Oracle.

Some "evidence" that most likely influenced the jury at the first (spring 2012) trial in connection with fair use was legally only relevant to Google's equitable defenses, but those equitable defenses failed in district court (I'm not sure this interesting fact was mentioned anywhere other than on this blog) and Google didn't even try to revive them on appeal. As a result, some confusing evidence will be kept out of the further process.

Now that the Supreme Court has denied Google's petition and appellate attorney Joshua Rosenkranz (of Orrick Herrington Sutcliffe) has once again shown why he was dubbed the "Defibrillator" (for bringing cases back to life that appeared to have been lost), the sizable litigation caravan that had gone from California to Washington DC for the appellate proceedings--where an amazing reversal of fortunes occurred, with Oracle now having the upper hand--can finally head back all the way to the West. There, "fair use" will be the topic du jour. And, provided that Oracle wins (which I've always believed it will), remedies. This means injunctive relief more than anything else. The strategic implications are not described accurately by portraying this as a billion-dollar case.

On this occasion I do wish to say a few things about fair use. About a year ago I explained why I ultimately concluded that Google Books probably should fall under the "fair use" exception, but Android should not. What is really the idea of "fair use"? At a philosophical level, it's all about whether, on balance, an unauthorized use of copyrighted material does more good than harm. Part of this consideration is whether a derived work is "transformative" in the sense of really creating something new of a kind that couldn't exist without building on the original material.

Depending on the specifics of a case, there can be a pretty strong argument for "fair use" or at least a reasonable argument, but there are also cases where it's more than a stretch to raise this defense.

A 1990s rap parody of a famous 1960s song is undoubtedly transformative, even in two ways: it's a parody, and it's a different music genre. The original author may not like to be subject to parody, but has to accept this like any other form of free speech. His heirs may not like it, or they may more likely seek leverage to cash in on the parody, but that doesn't make the parody illegal. The parody won't reduce demand for the original song; if anything, it gets an additional audience interested in the original. So this is a rather strong case for fair use, even though the fact that this is a form of commercial exploitation was held against it.

In my post on Google Books I stated that I was initially uncomfortable with the idea of this constituting "fair use," but the more I thought about it, the more I felt that the related decision was good policy. I have found information on Google Books that was useful and without which I might have had to buy a book (not necessarily the book shown on Google Books, but more likely another book on the same subject) to obtain it. So there is an argument for some negative effects, but I can see why on balance, also considering the public interest, Google Books does more good than harm. It's a close call, though.

In the Android-Java case, the part of the 2012 jury instructions that I took most issue with was the one that explained "transformative use" to the jury in a way that I thought was too broad. Copying select parts of a copyrighted work and then building new stuff around it should not be deemed "transformative." If someone stole someone else's car and drove it to a garage where there's 500 other cars, and let's assume he's even the legitimate owner of the other 500 cars, it's still theft and not "transformative." Also, mobile Java existed before Android, and was displaced by Android. This leads us to the commercial implications. It's all about Google making money and Oracle, as the rightful acquirer of the company that gave the world Java, losing out. The remand proceedings are now an opportunity to right this wrong.

On remand, Google will still try to make an "interoperability" or "compatibility" argument, but how credible is that one? The U.S. Department of Justice wrote in its submission to the Supreme Court:

"The Android platform uses the Java programming language, but [Google] purposely designed Android not to be compatible with the Java platform or interoperable with Java programs."

I'm sure I'm not the only one to find it hard to see an interoperability-based "fair use" case here in light of the above.

Finally, apart from expressing, as always, my hope that the parties will now settle, let me point you to my May 2014 refresher Q&A after the Federal Circuit ruling. Since the Supreme Court declined to even consider overruling the Federal Circuit, that Q&A outlines the current situation and explains various key facts about the dispute.

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