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Procedural implications of Google obtaining certiorari for its appeal of Oracle’s Java-Android copyright victory

Last January (2019) I wrote that I wanted Google to be granted certiorari (Supreme Court review) of Oracle’s copyright win(s) in the Federal Circuit, but I also made it clear I wnated affirmance (no surprise to anyone who knows what I wrote about the case in previous years). The first wish has come true: on November 15, Google’s petition for writ of certiorari was indeed granted.

I’m not going to reiterate positions on the merits that I’m tired of repeating. A while ago I stopped doing that, and instead I just wish to talk about procedures.

Google’s cert petition had two parts: copyrightability and “fair use.” The Supreme Court could also have granted the petition with respect to only one of them, especially since copyrightability was already raised years ago (but at an interlocutory stage) and that petition was denied. But the top U.S. court will look into both questions, which makes sense given the importance of the issues.

If Google prevails on copyrightability, the case is over. I can’t imagine that a conservative Supreme Court majority would disagree with Oracle on the standard for copyright protection, for the reasons I stated on many past occasions. But if it happened, Oracle would have no case.

Assuming that Oracle defends its copyrightability win, the case will then hinge on “fair use.” Here, Oracle needs affirmance of a judgment as a matter of law (JMOL) that the Federal Circuit found Judge Alsup in San Francisco should have entered (but didn’t, as he did hardly anything throughout the years that didn’t disadvantage Oracle).

Google’s “fair use” opportunity is that U.S. courts generally afford immense deference to jury verdicts. The standard for JMOL is very high. I still believe, as my longstanding readers know, that JMOL was perfectly warranted here. If the Supreme Court views it the same way, after affirming copyrightability, then the case will go back to the trial court for a determination of remedies. In that context, it may just be about damages. Oracle could seek an injunction, but Google has meanwhile changed its open-source licensing strategy for Android.

There’s also a possibility–and it’s at least the second-most likely outcome–of the Supreme Court affirming copyrightability but vacating JMOL on “fair use.” Theoretically, the court could make it sound like Google, not Oracle, would have been entitled to JMOL on “fair use”–but that’s something I absolutely can’t imagine. What might happen, however, is that the court finds the jury wasn’t entirely unreasonable. In that case, the matter would be remanded to the Federal Circuit first. Based on what the Federal Circuit found, there can be no reasonable doubt that a re-retrial on “fair use” would be ordered. The Federal Circuit would address at least some of the ways (more than Oracle could have raised even in three appeals) in which Judge Alsup’s decisions prejudiced Oracle. So the re-retrial would take place on terms more favorable to Oracle than the last two “fair use” trials in this case.

This case has been going on since August 2010. It started when this blog was only a few months old. Next April (2020), this blog will turn 10, and we’ll probably just have seen Google’s Supreme Court opening brief by then…

Orrick, Herrington & Sutcliffe’s Joshua Rosenkranz is still Oracle’s appellate counsel. Each time he defeated a Google lawyer on appeal (the first one was Robert van Nest, the trial counsel), Google fielded someone else. My bets are on Mr. Rosenkranz again because he’s incredibly effective–and the higher the court, the better for him.

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