The privately held Oracle America Inc., has been fighting an industry-changing copyright infringement case against Google Inc. since 2010 — the same year of the BP Oil Spill, the year Apple unveiled the iPad and the New Orleans Saints won the Super Bowl. It’s been awhile.

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The Redwood City, Calif.-based network computing infrastructure solutions and software company, an arm of American multinational computer tech giant Oracle Corp., is hoping for a new outcome in its case this year and has asked the United States Court of Appeals for the Federal Circuit to either reverse a lower court’s judgment that favored Google’s fair use defense, or at the very least to order a new trial. The court heard oral arguments in December 2017 regarding Oracle’s case and the three-judge panel is expected to issue an opinion during 2018.

“The fair use ruling here was an aberration,” Oracle’s attorneys write in the appeal filed Aug. 4, 2017. “Google attempts to defend it with a topsy-turvy vision of fair use that contorts established doctrine beyond recognition.”

In simple terms, fair use is a legal federal law doctrine that allows limited use of copyrighted materials without first having to get permission from the copyright owner, the end goal being to balance the interests of copyright holders with those of the public.

But the copyright playing field gets trampled on by all sorts of competing factors, so to speak.

In this case, Google used bits of code copied from Java (an Oracle-owned programming language) in the Google Android and claimed the action constituted fair use of Oracle’s copyright. The bits of code are key to the case. They’re known as application programming interfaces, or APIs, which are the technology that permits different computer programs to communicate with each other. And Oracle says Google had no business using its APIs the way it did.

“Google repeatedly asserts that its use was fair because Java was ‘free and open for everyone to use.’ But that is just a play on words: ‘open’ means Oracle offered an open-source license and ‘free’ means that app developers could use the APIs without paying, but only upon agreeing to a license,” according to Oracle’s appeal.

But neither Sun Microsystems — the Java technology patent holder that Oracle Corp. bought in 2010 and renamed Oracle America — “nor Oracle ever allowed a commercial enterprise to release a competing commercial platform for free, much less without a license,” according to the appeal.

Oracle would like the three circuit court judges to see its appeal of the May 2016 decision in the second trial overseen by Judge William H. Alsup in the U.S. District Court for the Northern District of California from its perspective and rule in its favor. There are others schooled in the intricacies of intellectual property (IP) and copyright law who also think Oracle has a strong case this go around.

In fact, they think Google’s winning streak could be over.

Oracle supporters

Oracle, among other claims in its appeal, has accused Google of unnecessarily copying 11,330 lines of Oracle code, subsequently harming its commercial market and essentially robbing it of billions of dollars in profits.

Thirteen IP scholars joined in writing an amicus brief that supports, even foreshadowed, Oracle America’s argument in its current appeal.

“The fair use defense should not excuse the infringement in this case, where Google copied thousands of lines of Oracle’s code verbatim to use for the same purpose in competing products,” the 13 impartial scholars concluded in their Feb. 17, 2017 amicus brief.

The amicus brief was filed by Antigone Peyton of Cloudigy Law PLLC, counsel for the Amici Intellectual Property Scholars, who are identified as scholars who teach and research copyright law, among other areas of law, and/or who have served in the highest positions of authority with respect to the development and administration of copyright law in the United States. The only stake they have in the outcome of the Oracle case against Google, according to their brief, is “their interest in ensuring that copyright law develops in a manner that respects its Constitutional and statutory basis and ensures that creativity and innovation continue to flourish.”

Toward that end, Fordham University School of Law Professor Hugh Hansen, one of the 13 IP scholars, said during an interview this week that he thinks “Oracle has a decent chance of getting a reversal based on commercial competition.”

“That’s where I think there are possibilities. I don’t claim I know this case from the inside, but from the outside, that’s where I see a possible reversal,” Hansen told Financial Regulation News. “This case is certainly not a lost cause.”

Hansen, director of the Fordham Intellectual Property Law Institute and world renowned as an expert on international IP law, said that Judge Alsup “misrepresented the economic effect” that Google’s actions had on the market for Oracle, so the jury wasn’t properly informed when it agreed to the internet company’s fair use defense.

The 13 scholars basically ask in their brief: did Google’s use of Oracle’s code damage Oracle’s market prospects?

“Here, Google created a product that competed with Oracle’s copyrighted work, which caused a decrease in Oracle’s licensing market and also prevented Oracle from participating in developing markets,” according to the brief. “Accordingly, [this] factor should weigh against a finding of fair use.”

Oracle agrees that it has suffered commercial market harm by Google’s use of its Java APIs in a competing platform in the same markets in which Oracle licenses the Java platform, and in markets in which Oracle may license it in the future, according to Oracle’s appeal.

The creativity argument

Software coding is a highly creative field, the 13 scholars also pointed out in their brief, noting that technology’s exponential growth is a direct result of such creativity.

“Expanding the fair use defense to excuse appropriation of software code for commercial gain will harm both creators and the public, as creators will have less incentive to develop new software,” they wrote.

Therefore, according to the 13 scholars, copyright incentivizes new creative works and the public won’t be well-served by policy that slows down the creative advancement of software, nor by applying fair use “that will gut copyright protection for other creative works by excusing a purely commercial copying of a creative work that harms the market for the original or its derivatives,” according to their brief.

Oracle agrees and has argued that software developers would have less control over new uses of their copyrighted works if its appeal fails.

Writing software code, like all other literary works, is highly inventive and it’s legally unfair to copy an original work and then put it to the exact same commercial use at the expense of the original writer, according to Oracle’s appeal.

“Copyright simply prohibits a plagiarist from copying the same code and organization” of that code, according to Oracle’s filing.

For example, an author who copies more than 11,000 topic sentences from a novel and paraphrases everything else to tell an identical story isn’t fairly using the original content, Oracle claims, nor should a filmmaker be permitted to use a fair use defense to copyright infringement after adapting an 11,000-line short story into a feature film. “As in each of these situations, wholesale copying of thousands of lines of code embodying the entire structure and sequence of a work put to the same use in a competing work is not fair use,” according to Oracle’s appeal.

Another of the 13 scholars further explained the importance of that argument to Financial Regulation News this week.

“I am not aware of any case that has found fair use under similar circumstances,” Sandra Aistars, clinical professor of law at the George Mason University (GMU) Antonin Scalia Law School, wrote in an email.

“To do so under these circumstances could have broad negative implications for businesses in the creative industries, including the software industry,” said Aistars, who is also senior scholar and director of copyright research and policy at the GMU law school’s Center for the Protection of Intellectual Property.

So with Oracle on offense again, what’s the next step in this ongoing battle?

“I would expect a decision within the next 6 months or so” on Oracle’s appeal from the circuit court judges, Aistars wrote in an email. After that, she said she expects one of the parties will likely seek review from the U.S. Supreme Court.