Image by Robert Scoble
After its stinging defeat last year, Oracle Corp. is relying on heavy-hitting appellate lawyers at Orrick, Herrington & Sutcliffe and Kirkland & Ellis to take the company's copyright fight with Google Inc. to the U.S. Court of Appeals for the Federal Circuit.
In an 89-page brief filed Monday, Oracle asked the appeals court to revive claims that Google infringed its copyrights by incorporating parts of the Java programming language into the Android mobile operating system. After a much-hyped San Francisco jury trial, U.S. District Judge William Alsup dismissed Oracle's copyright claims in June 2012, ruling that the parts of Java at issue — known as "application programming interfaces," or APIs — aren't eligible for copyright protection.
Oracle tapped Orrick's E. Joshua Rosenkranz to lead the appeal along with a Kirkland team led by Dale Cendali. The company was represented at trial by David Boies of Boies, Schiller & Flexner and Michael Jacobs of Morrison & Foerster. So far, according to the Federal Circuit docket, Google is sticking with Robert Van Nest of Keker & Van Nest, who successfully fended off Oracle's claims at trial.
Google cloned 37 Java APIs when it built Android, taking the position that the copying amounted to legally protected "fair use." Oracle, which got the rights to Java when it acquired Sun Microsystems Inc., claimed that Google needed a license, and brought suit in August 2011. Oracle also accused Google of infringing related patents. Oracle initially asked for up to $6 billion. Alsup balked at that number and threw out Oracle's expert report. By the time the trial kicked off, Oracle was seeking roughly $1 billion.
After a long and complex trial, Oracle got nothing. The jury found last May that Google didn't infringe the two Oracle patents at issue. After being instructed to presume that the APIs are copyrightable, the jury agreed with Oracle that Google infringed. It deadlocked on Google's fair use defense, however, capping Oracle's potential damages at $300,000. After hearing the evidence at trial, Alsup ruled that the APIs aren't eligible for copyright protection, so Oracle walked away with nothing but a lot of legal bills.
In Monday's brief, Oracle's new lawyers at Orrick and Kirkland focused on Alsup's post-verdict ruling. They argued that since copyright laws protect a "Chinese menu or even a jingle," they ought to protect a programming language like Java that's "vastly more original, creative, and labor-intensive." To drive the point home, the brief opens with a three-paragraph hypothetical involving a writer named "Ann Droid" who gets rich selling a knock-off versions of J.K. Rowling's Harry Potter bestsellers. In the hypothetical, Ms. Droid copies Rowling's chapter titles and topic sentences, and then paraphrases the rest of the original.
According to Orrick, Ms. Droid would obviously fail if she raised the following defense to copyright infringement: "But I wrote most of the words from scratch. Besides, this was a fair use, because I copied only the portions necessary to tap into the Harry Potter fan base."
Google's reply is due in May, hopefully with an equally creative retort to the "Ann Droid" exchange. Rosenkranz declined to comment. Van Nest wasn't immediately available for comment.
Correction: An earlier version of this story included an erroneous reference to Facebook in a passage related to Oracle. We regret the error.
