Appellate courts don't like overturning jury verdicts. Until this week, none is known to have overturned a jury verdict of fair use in a copyright infringement case.

But Orrick, Herrington & Sutcliffe partner E. Joshua Rosenkranz had two things going for him when he asked the U.S. Court of Appeals for the Federal Circuit to throw out Google's fair use jury verdict in its mega-high-stakes dispute with Oracle Corp.

The first was a previous trip to the Federal Circuit, in which the court critiqued Google's fair use case and laid out a roadmap for deciding it. The second was a powerful story from “the mouth of the plagiarist itself,” Rosenkranz says, referring to emails among Google executives discussing their plans to copy portions of the Java application program interface.

“They knew, in the words of their executives, that all of the alternatives suck,” Rosenkranz says. “How often do you get to use that word in an appellate brief?”

The strategy worked. The Federal Circuit threw out the verdict and sent Oracle America v. Google back to San Francisco federal court for a third trial, this time on damages. The court's opinion has been cheered by content creators and panned by some copyright scholars. But most important from the perspective of Rosenkranz and client Oracle Corp., it's breathed new life into a case they believe is worth many, many billions of dollars.

For that Rosenkranz is our Litigator of the Week.

Oracle sued Google eight years ago, restarting a broader debate over software copyrights that dates back at least to the 1970s. (The case just earned an entire special issue of the Harvard Journal of Law and Technology.) Oracle accuses Google of copying the declaring code in 37 Java APIs developed by Sun Microsystems. Oracle acquired Sun in 2009.

Google was on a mission to launch the Android operating system and compete with the Apple iPhone. When negotiations for a license to the Java APIs broke down, Google copied what it describes as “a minuscule percentage” of the code, only the amount needed to enable programmers to write Android applications in the familiar Java language.

The jury hung on fair use at a 2012 trial, but U.S. District Judge William Alsup ruled that the declaring code at issue wasn't copyrightable.

Oracle brought in Rosenkranz and Orrick for the appeal. They persuaded the Federal Circuit to reverse on copyrightability, and almost won on fair use as a matter of law. Oracle's fair use argument “is not without force,” Judge Kathleen O'Malley wrote at the time. “On many of these points, Google does not debate Oracle's characterization of its conduct, nor could it on the record evidence.”

Although Oracle and Orrick lost the retrial, Rosenkranz says they made the points they needed for the second appeal: that Google's use of the Java code was not transformative, and that it trampled on Oracle's opportunity to compete in the massive smartphone market.

“We buttoned up all the loose ends that the court gave us to button up,” Rosenkranz says. Google, on the other hand, “went back and made the same arguments with the same evidence”—despite O'Malley's warning that it was overstating its fair use case.

Rosenkranz credited his Orrick colleagues on the trial and appellate team, and Oracle's engaged in-house attorneys, who contributed to two five-hour moot courts ahead of the arguments. “I need to understand where they were coming from as a business matter,” he said. “I need to hear the emotion and put it in my own words.”

Dale Cendali and Josh Simmons of Kirkland & Ellis were co-counsel.

There's already talk of Google petitioning to the Supreme Court on copyrightability, fair use or both. The last time around, the high court requested the solicitor general's views before deciding not to take the case.

If Google asks for cert, “We'll say to the Supreme Court what the solicitor general said the first time around,” Rosenkranz said. “There's nothing seismic about applying basic copyright principles to computer code, as the Copyright Act dictates.”