Wednesday, October 7, 2020

Supreme Court inclined to affirm Federal Circuit's copyrightability holding in Oracle v. Google, possibly unanimously--fair use may be remanded

Judge William H. Alsup of the United States District Court for the Northern District of California may go down in history as the only U.S. judge ever to have found that code related to application programming interfaces (APIs) is not copyrightable only because it's related to APIs. Or one of only two judges, should Associate Justice Sonia Sotomayor dissent from what otherwise looks like a unanimous affirmance of the Federal Circuit's copyrightability holding. But even Justice Sotomayor is at best having second thoughts and far from being totally in the tank for Google on this part.

The points that Google's attorney, Thomas Goldstein, made on the copyrightability part were simply ridiculous (he's a fantastic lawyer--the problem is that Google has no non-copyrightability case), and in the first part, every one of the Justices asked questions that suggested a strong inclination to side with Oracle on this part.

There was pretty much a consensus that copyrightability is determined based on the situation when something is written, so the merger and method-of-operation exceptions don't apply if they're basically used as a defense to subsequent infringement (which is where fair use comes into play, but irrelevant to copyrightability). Therefore, Google has no path to victory on copyrightability. Game over in that regard.

I've been saying for about ten years--and this case just celebrated its tenth anniversary in August--that regardless of the Merger Doctrine or any other theory, API declaring code is simply code. The Supreme Court of the United States made it clear today, and will do so in writing. I already considered this outcome quite likely when I looked at a procedural order three months ago.

Words cannot express how much I look forward to the SCOTUS opinion after all of this time and absolutely unjustified attacks. Certain morons will get their comeuppance. But, to be very clear, there are some people who sided with Google on this question whom I respect a great deal. Those people know, or they can figure based on how respectfully I've interacted with them at all times, and because they didn't disparage me regardless of our disagreement on API copyrightability. By "morons" I only meant the unreasonable ones who blamed me in unacceptable ways against the backdrop of what was simply a massive legal error on the district judge's part.

Now, with respect to fair use, the problem is the standard of review because the "fair use" finding was a jury verdict.

Orrick's Joshua Rosenkranz argued that the Federal Circuit applied the "no reasonable jury could have found otherwise" standard, but that the correct standard would be de novo for the legal conclusions that a fair use determination involves.

My feeling is that the Supreme Court may find that the more deferential substantial evidence standard needs to be applied, and that in this case a majority of the justices may very well remand the case to the Federal Circuit. It's also possible that Oracle wins affirmance on "fair use" (especially since a split 4-4 decision would be sufficient for affirmance), but I doubt it. There appears to be some concern among the justices that with all the support Google got from amici curiae warning against the consequences of affirmance they somehow feel they shouldn't decide against what Google managed to present as industry practice and expectation.

Assuming that there is a remand of the "fair use" part, which I consider more likely than the other way round (though nowhere near as certain as affirmance of the copyrightability holding), the Federal Circuit would not be too likely to overrule the jury again. But it would then pick up where it left off last time, and Oracle had strong arguments (that also appeared to get traction with the appeals court) for a retrial. Judge Alsup made some pretrial decisions that unfairly disadvantaged Oracle.

I think is a clear case of unfair use, but I'm like ten times more interested in the copyrightability part, and so happy that this one is going to be clarified for good. I was the only one to openly welcome Google's petition for writ of certiorari despite hoping for affirmance. That's because I'm all about the issues, not about the parties. I wanted the copyrightability part to be resolved for good, and on a nationwide basis. A Federal Circuit decision applying Ninth Circuit law would have been of only limited value--it wouldn't have been binding on anyone, not even on the Federal Circuit itself. The highest court in the land is going to provide definitive clarification that API code is not going to be treated differently from a copyrightability point of view than other program code. It's about original creativity, stupid.

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