On March 27, the United States Court of Appeals for the Federal Circuit overruled a jury verdict that Google’s use of Oracle’s JAVA Application Programming Interface (API) was fair use under copyright law. While the jury had determined that Google’s copying of the code was protected from copyright infringement, the Federal Circuit found that Google’s copying of the API’s in its Android phone was a commercial use of copyrighted software that involved no creativity on Google’s part and interfered with Oracle’s market for licensing. The case will go back for determination of damages Google would owe Oracle unless Google appeals to the Supreme Court. During an earlier phase of the litigation, Google’s petition to the Supreme Court was denied.
This decision is an important one for the software and smart phone industries. Copyright is an unusual area for the Federal Circuit, which was created in 1982 to handle appeals of patent litigation. However, under federal jurisdiction law, the Federal Circuit can review issues raised in conjunction with patent claims. Here, Oracle had sued Google for patent and copyright infringement, but the patent claims settled leaving only the copyright issues. The Federal Circuit has handled only a handful of copyright cases and only three fair use cases. This lack of experience with copyright may move the Supreme Court to review the Google decision. But while the Federal Circuit opinion has problems, these may not be enough to create a conflict among the lower courts, an important basis for Supreme Court review. Smartphone users and manufacturers as well as coders wait along with Oracle and Google to see where this case goes next.
Shubha Ghosh, who authored this note, wrote portions of a brief in support of Google.