Google Seeks En Banc Review of Copyright Fight With Oracle
The company wants the full Federal Circuit to review two rulings: one in 2014 holding Java APIs copyrightable, and another this year throwing out a fair use jury verdict.
May 30, 2018 at 06:41 PM
2 minute read
The original version of this story was published on The Recorder
Google Inc. is asking the Federal Circuit to review en banc its copyright dispute with Oracle Corp. over Java application programming interfaces.
“This is the 'copyright lawsuit of the decade,' and if the panel's rulings are not corrected, their reverberations will be felt for decades,” Google states in a petition signed by King & Spalding partner Daryl Joseffer.
It's a step in the litigation process that Google bypassed the last time the parties were before the U.S. Court of Appeals for the Federal Circuit. Instead it went straight to the Supreme Court with a petition for certiorari, which the high court turned down after requesting the solicitor general's views.
This time Google is asking the full court to review both U.S. District Judge William Alsup of the Northern District of California's 2012 ruling that the APIs are copyrightable, and the 2016 jury verdict finding Google's use of the APIs in its Android operating system a fair use. A three-judge panel of the court threw out both results—one in 2014, the other this March—which Google calls “a devastating one-two punch at the computer software industry.”
The odds of en banc review are always slim, but the Federal Circuit has been perceived as especially unlikely to review copyright cases en banc. The theory is that, unlike patent cases, the court is simply interpreting the law of regional circuits. But Google argues that software copyright plaintiffs are increasingly adding patent infringement to their complaints to ensure Federal Circuit jurisdiction over the appeals.
“Although the panel purported to apply Ninth Circuit law, this is now a Federal Circuit problem,” Joseffer writes.
Google argues that if software copyrights are enforced too strictly, it will kill innovation in the industry. The company says it used only a small amount of Java computer code—all that was necessary to invoke basic functions and methods for operating the programming language in the context of smartphones.
“If the panel's decision is allowed to stand, it is hard to see how any adaptation of any element of computer software to a new context could ever qualify as fair use,” Joseffer writes.
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