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A jury’s lack of detail in its fair use verdict over Google Inc.'s copying of portions of Oracle America Inc.'s Java programming language troubled judges hearing oral arguments Dec. 7 in Oracle’s appeal.
Judge S. Jay Plager of the U.S. Court of Appeals for the Federal Circuit, one of three judges hearing the appeal, described the jury verdict as a “black box,” because the jury was not asked by the U.S. District Court for the Northern District of California to detail its view of the factors leading it to reach its fair use conclusion. He asked Oracle’s counsel how the court could unpack such a verdict short of ordering another trial.
Oracle’s lawyer, E. Joshua Rosenkranz of Orrick, Herrington & Sutcliffe LLP, New York, conceded that Oracle didn’t insist on a more detailed jury form, but said that there were other reasons the trial court should be overturned. In particular, he pointed to the court limiting the jury to consider only smartphones and tablet computers, and not other devices that were being brought into the Android operating system.
In 2016, a jury verdict from the California federal district court said that Google’s copying, which made it easier for programmers to create applications for the Android system, was allowed under the doctrine of fair use, which creates exceptions to copyright protection for things such as criticism and commentary.
One consideration for fair use is whether the copier’s use interferes with a market that the copyright owner is in. This question was inadequately considered at trial, Rosenkranz said. Not only were some devices taken out of consideration, but, he said, Oracle had in the past tried to move Java into the mobile space, and was still trying to license it to other companies for mobile devices. Google’s copying interfered with those efforts.
Google’s counsel, Daryl L. Joseffer of King & Spalding LLP, Washington, faced questioning from Judge Richard G. Taranto regarding why Google’s use of portions of Java to create Android shouldn’t be treated like the movie “Rear Window,” which was found to infringe rights in a novel even though 80 percent of the material was new.
The situations weren’t comparable, Joseffer said, because Java wasn’t suited to be “used in a mobile environment.”
“If it wasn’t suitable, you wouldn’t have taken it,” Judge Kathleen M. O’Malley responded.
The Federal Circuit could issue a ruling on the case within the next four to six months. However, the exchanges between the judges and the parties’ lawyers show the outcome could very well send the case back to the jury for the third time in seven years.
Oracle has argued in its briefs that allowing Google’s copying will represent a shrinking of the rights that software creators have in their copyrighted works. Google has argued that the kind of limited copying it has done is critical for technology developers to be able to create products that are interoperable with technology products already on the market.
Google copied the code to make it easier for software developers already skilled in Java programming to make applications for Android smartphones. Oracle, which owns Java as a result of acquiring Sun Microsystems Inc. in 2010, is seeking $9 billion in damages for copyright infringement.
The case is Oracle America Inc. v. Google Inc., Fed. Cir., No. 17-1118, argued 12/7/17 .
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