Wednesday, August 12, 2020

A decade of justice delayed: on this day ten years ago, Oracle sued Google over patents and copyrighted works

Ten years--or 3653 days--ago, a wholly-owned subsidiary of Oracle Corporation named Oracle America, which until earlier that year was known as Sun Microsystems, filed a patent and copyright infringement complaint against Google in the Northern District of California (click on the image to enlarge; this post continues below the image):


It was the first smartphone IP dispute (of many) this blog commented on in detail. Initially it looked like a patent case with copyright infringement being more of an afterthought, and as I had actually fought against Oracle's acquisition of Sun Microsystems the year before, I initially felt that Google was a victim of a patent shakedown. But over the years it became known that the Android development team had actually negotiated a license with Sun and decided to go ahead without one--and the focus shifted to copyright.

Back in the day, neither the parties nor their counsel nor litigation watchers like me would have believed in their wildest dreams that this case was still going to be alive a decade later.

In my opinion (though I do realize I may--but doubt that I will--have to adjust my position depending on what the Supreme Court will say), one person is primarily responsible for this disconcerting case of "justice delayed is justice denied": District Judge William H. Alsup, who (again, subject to whether the Supreme Court opinion will be within my corridor of realistic expectations) made huge mistakes, all of them in Google's favor and to Oracle's detriment. If Google had been given the choice among all of the world's judges, it would have been hard-pressed to come up with a more biased and more misguided one. Total disaster.

Meanwhile, the Supreme Court (which is no stranger to this case as it already denied cert five years ago) has scheduled the oral argument, which got pushed back by the coronavirus crisis, for October 7, 2020. This makes it a possibility that an opinion will still come down in 2020, but early 2021 appears more likely, given that two distinct questions for review will (most likely) have to be addressed.

Theoretically, the case could come to an end this year, but in order for that to happen, the Supreme Court would have to agree with Google on non-copyrightability. I'd have to take back everything I wrote about Judge Alsup above if that happened, but there's no reason to believe so--and a procedural order by the Supreme Court serves as an indication that Google will lose that argument.

Whatever the Supreme Court does to affirm the Federal Circuit, it will make it clear that API-related code is just as copyrightable as any other code, provided that the creativity threshold is met. I just hope that the Supreme Court will clarify the standard for software copyrightability in a really helpful way. If the SCOTUS is more interested in the "fair use" and jury deference part, there is a risk of the copyrightability part of the opinion being shorter than if it had been the only question raised.

The second question, "fair use," is clear-cut only in the sense that there's realistically no way the Supreme Court would agree with Google on the merits. But deference to the jury (which found for Google) is the tricky part here, especially since the Federal Circuit declined to resolve fair use as a matter of law the first time around but decided so on Oracle's second appeal from a wrong outcome in district court.

If Google loses out on both questions, the case will have to go back to the district court for a determination of remedies, and that one may again give rise to an appeal. (That would be certain to happen in that scenario, unless the parties settle.)

Even if Google prevailed on the second question, the case wouldn't be over. It would go back to the Federal Circuit, which based on how the second appellate hearing went there would presumably remand the "fair use" question to the district court as some of Judge Alsup's pretrial decisions prejudiced Oracle. In a re-retrial, a third jury might have to decide.

Absent a settlement, this litigation may easily go into 2022 or even 2023.

Even if Oracle obtained an injunction, it might be inconsequential as a result of licensing-related and/or technical changes on Google's side. In that case, the grand prize for Oracle would be a damages award, possibly in the billions of dollars. And while both companies were on an equal footing ten years ago in terms of market capitalization, Google (now part of Alphabet) is a hugely more valuable and powerful company than Oracle as we speak.

Happy Tenth Anniversary, Oracle v. Google!

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