On the eve of a status report requested by Judge William Alsup of the Northern District of California in the Oracle v. Google remand proceedings, Oracle has shown once again that, as I've been saying for a long time and many media reports still misstate, the Android-Java copyright case is about much more than $1 billion. It's about more in strategic terms, but as Oracle's letter shows, without stating a new damages claim yet, it's also about more in mere financial terms.
Almost five years after the original complaint in August 2010 and the first amended complaint in October 2010, and more than three years after the 2012 mistrial, Oracle wants to ensure that what has happened since will play a role in the further proceedings. The alternative would be for Oracle to bring a follow-up complaint later, but that one would not only be less efficient: it would also disadvantage Oracle because it would not be allowed to counter Google's "fair use" claims with new facts that show Android's conceded and unauthorized use of Oracle's valid Java API-related copyrights has massive economic scale and major strategic implications for the entire high-tech sector:
"The Amended Complaint was filed on October 27, 2010. [...] Since then, Google has released six major versions of Android encompassing at least forty total releases. In the last three years, Android has come to permeate the fabric of our society: it is in 80% of smartphones, in tablets, in televisions, on wearables, and even in cars. Google continues to infringe Oracle’s copyrights with these new versions. Android now has a billion users; Google reaps untold profits from these users through a variety of means. At the same time that Android has become truly ubiquitous, the Java platform has suffered more than ever. And, meanwhile, Google itself has adopted an express anti-fragmentation strategy, implicitly conceding what Sun and later Oracle long contended were necessary aspects of maintaining a vibrant development platform.
The record of the first trial does not reflect any of these developments in the market, including Google's dramatically enhanced market position in search engine advertising and the overall financial results from its continuing and expanded infringement."
The last part--financial results--comes a few days after Google's stock experienced a major surge, making it the world's second-most valuable company (only Apple's market capitalization exceeds that of Google.)
But there's something in Oracle's letter--formally it's a request for permission to (then) request permission to (finally) file a supplemental complaint--that may have even more important implications for the adjudication of Google's "fair use" defense than those mind-blowing numbers: Oracle's reference to Google's "express anti-fragmentation strategy." Fragmentation of Java through Android has been a key point of Oracle's case all along.
One question I'm asking myself now is whether this letter is an early sign of Oracle bringing a new motion for judgment as a matter of law (JMOL) on Google's "fair use" defense, in which case the next jury could focus entirely on damages (not liability). The United States Court of Appeals for the Federal Circuit declined to resolve this matter based on the record from the 2012 trial, but it provided some guidance that largely favors Oracle, especially (though not only) with a view to Google's claim that Android's use of the copyright Java material is of a "transformative" nature. That guidance, coupled with additional facts relating to the economic scale of the infringement and Google's own concern about fragmentation, could serve as the basis for a stronger JMOL case than last time.
Another observation: this letter to the court was filed by Orrick Herrington & Sutcliffe's Annette Hurst, a San Francisco-based IP lawyer whose firm became involved with Oracle v. Google only at the appellate stage. She has received various awards and other forms of recognition over the years. Last year, for example, the International Financial Law Review awarded her the Best in Copyright honor at the America's Women in Business Law Awards, and she has been named as one of the top California litigators on several occasions.
The fact that Mrs. Hurst wrote this letter to the court suggests to me that she is Oracle's lead counsel on remand. New York-based appellate lawyer Joshua Rosenkranz, also an Orrick partner, was Oracle's lead counsel before the Federal Circuit and the Supreme Court. Morrison & Foerster, one of the top Silicon Valley firms, does remain involved as far as I can see.
Mrs. Hurst's letter mentions that the parties disagreed on the scope of the supplemental complaint Oracle seeks to bring. It's not clear yet what the disagreement relates to and whether there is anything the parties can agree on, but we will know soon. The parties still have until midnight California time on Thursday to file their status reports.
Finally, here's the letter:
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