Federal Circuit Questions Google Win in Oracle Copyright Fight

, The Litigation Daily

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Scott Graham writes for The Recorder, an American Lawyer affiliate.

WASHINGTON — The World Series of IP cases is headed for extra innings.

A Federal Circuit panel appeared Wednesday to strongly disagree with a San Francisco federal judge's ruling last year that basic elements of the Java programming language cannot be copyrighted. That would hand a big win to Oracle, which accuses Google of stealing the so-called declaring code from its Java application program interface and riding it to spectacular success with its Android mobile operating system.

U.S. District Judge William Alsup ruled that Google had limited its copying to the "command structure" of the API, and that part cannot be copyrighted. But Federal Circuit Judge Kathleen O'Malley suggested the theory was unworkable, saying it would let Google copy reams of computer code from competitors such as Apple and Microsoft. "You could take all their declaring code," she told Google attorney Robert Van Nest of San Francisco's Keker & Van Nest.

"If they've got a program like Java … " Van Nest began.

"What do you mean, 'like Java'?" O'Malley shot back. "This would apply to every possible computer program out there."

O'Malley and Judges S. Jay Plager and Richard Taranto repeatedly characterized Alsup's ruling as puzzling and internally inconsistent. Specifically, the three suggested the San Francisco judge had mistakenly analyzed copyrightability under two Ninth Circuit cases—Sega Enterprises v. Accolade and Sony v. Connectix—that were focused more on fair use.

"Come on, Sega and Sony don't say what you want them to say," O'Malley told Van Nest. "I'm going to turn to fair use [later], and when we do that you cite Sega and Sony all you want."

Google's best hope Wednesday after 90 minutes of argument appeared to be remand to Alsup's court for a decision on the fair use defense. O'Malley, Plager and Taranto all sounded skeptical of fair use, but hesitant to rule for Oracle as a matter of law.

Oracle sued Google in 2010, less than a year after acquiring the rights to Java via its acquisition of Sun Microsystems. Google had tried to negotiate a license so that programmers already familiar with Java source code, naming conventions and organization could write applications for the Android mobile operating system. After negotiations failed, Google copied the names and functions of 37 Java API packages but developed its own code to implement the instructions set forth by the packages.

Oracle originally claimed the case was worth $6 billion, but lowered its demand to the hundreds of millions after its patent claims fizzled. A jury ruled that Google infringed Oracle's copyright while deadlocking on fair use.

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