Summits Yellow

Google/Oracle Android Java case goes back to court after judge overrules 2016 decision

David Murphy

A court case that goes to the core of the Android operating system that Google thought it had won two years ago has been revived after a US appeal court reversed the original verdict. The case dates back to 2010, when Oracle sued Google for $9bn (£6.4bn) in damages, claiming that Google had made use of 37 Java APIs in the development of the Android OS, "illegally copying core Java technology to rush into the mobile device market," according to Oracle's general counsel Dorian Daley.

Following a two-week trial and three days of deliberation in May 2016, the jury ruled that Google’s use of the APIs was within fair use. But yesterday, the US Court of Appeals for the Federal Circuit reversed the verdict, ruling that Google’s use of Oracle’s Java development platform to create the Android operating system was not protected under the fair-use provision of copyright law. The case has been referred back to a US judge in San Francisco. It will go to trial to
determine how much compensation Google owes Oracle.

J. Michael Keyes, an intellectual property and partner at the international law firm Dorsey & Whitney, described the decision as: “a hugely important development in the law of copyright and fair use.”

“If it stands, there are numerous implications,” Keyes said. “One: a jury’s determination of fair use is far from immunized on appeal. The Federal Circuit had no qualms about diving in, looking at the evidence, and coming to a different legal conclusion on the central issue that was at the heart of the retrial. This should definitely inform how trial counsel present evidence to the jury and what questions should be presented to them on the special verdict form.”

“Two: one of the key arguments Google made was that using the API packets for cellphones was ‘transformative’vfor purposes of fair use. The appellate court rejected that. What this means is that simply porting the work (even a small portion of it) to a new platform or medium doesn’t mean you are transforming the underlying work. The old adage that ‘the medium is the message’ doesn’t necessarily fly in the context of fair use.”

“And three: even copying a small amount of code (a few dozen packets) of a much larger work can’t be considered ‘too small’ to be dismissed. The Court held that no reasonable jury could have considered the copying ‘qualitatively insignificant’. That’s a pretty bold statement for an appellate court to pronounce, which means future litigants need to focus like a laser on how important the copied portion was relative to the greater whole.

“The Court pointed out that it was not holding that ‘a fair use defense could never be sustained in an action involving the copying of computer code.’ That may be right, but this Court had no qualms about assessing and reassessing evidence and arguments that were made to the jury. It’s a decision that needs to be carefully and thoughtfully considered in any case involving fair use, particularly in the context of software,” Keyes concluded.