This morning, the U.S. Court of Appeals for the Federal Circuit said 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, reversing a 2016 jury verdict resurrecting a multi-billion dollar copyright case brought by Oracle Corp against Google. The dispute is over pre-written directions known as application program interfaces, or APIs, which can work across different types of devices and provide the instructions for things like connecting to the internet or accessing certain types of files.
J. Michael Keyes is a partner at the international law firm Dorsey & Whitney. He is an intellectual property attorney with extensive trial and litigation experience in cases involving trademarks, copyrights, unfair competition and false advertising. He has tried several cases in federal courts across the United States. Recently, Keyes and his team obtained a final judgment and permanent injunction in the U.S. District Court for the Southern District of Florida on behalf of Rovio Entertainment, Ltd., the creator of Angry Birds®. Of the decision today and what it means going forward he said:
This is a hugely important development in the law of copyright and fair use. If it stands, there are numerous implications.
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 presented evidence to the jury and what questions should be presented to them on the special verdict form.
Also, of the key arguments Google made was that using the API packets for cellphones was ‘transformative’ for 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 does not mean you are transforming the underlying work. The old adage that ‘the medium is the message’ does not necessarily fly in the context of fair use.
Even copying a small amount of code (a few dozen packets) of a much larger work cannot be considered ‘too small’ to be dismissed. The Court held that no reasonable jury could have considered the copying ‘qualitatively insignificant.’ That is 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 is a decision that needs to be carefully and thoughtfully considered in any case involving fair use, particularly in the context of software.
Today, Oracle’s billion-dollar copyright lawsuit against Google over smartphone software was revived. This resulted in overturning a jury verdict that ended the case with a finding of fair use. The Federal Circuit has set the stage for a new trial over how much Google should pay in damages to Oracle over smartphone software. In the last trial, which ended in Google’s favor, Oracle said the damages could have reached $8.8 billion.
By Cherese Jackson (Virginia)
Bloomberg: Oracle Wins Revival of Billion-Dollar Case Against Google
Dorsey & Whitney Law Firm: J. Michael Keys
Quimbee: Oracle America, Inc. v. Google, Inc.
Top Image Courtesy of Dorsey & Whitney LLP– Used With Permission
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