from the so-ridiculous dept
Yesterday we went through the details of the truly awful appeals court decision by the Court of Appeals for the Federal Circuit (CAFC) concerning whether or not Google copying a few pieces of the Java API for Android was fair use. As we mentioned, there were a whole bunch of oddities both in the procedural history of the case, but especially in the CAFC's decision here that has left a ton of legal experts scratching their heads. What becomes quite clear is that the CAFC panel decided long ago that Google infringed, and it's not going to let the law or even consistency get in its way. As you'll recall, the same three panel set of judges (Judges Kathleen O'Malley, Jay Plager, and Richard Taranto) made a terrible, nonsensical, technically ignorant ruling four years ago, saying that APIs are covered by copyright and then sent the case back to the lower court to hold a new trial on fair use.
As we noted in yesterday's post, what's really incredible is that part of the reasoning in the CAFC opinion from four years ago is "this is an issue that a jury should hear to determine if it's fair use." And the ruling yesterday said "no reasonable jury could possibly find fair use" (after the jury here did find fair use). Which raises the question of why the fuck did the CAFC send the case back in the first place? To waste everyone's time? To pad the wages of the very very expensive lawyers employed by Oracle and Google? To waste Judge Alsup's time?
Carolyn Homer, a lawyer who recently left a "biglaw" firm where she did copyright and free speech law for a public interest free speech law job, put together a fantastic chart comparing the 2014 CAFC ruling in this case and the 2018 ruling, highlighting where they appear to disagree with one another.
In case you can't see that, I'll recreate it for you in text, because it highlights just how far these three judges bent over backwards to get the result they wanted, even if it involved totally reversing themselves from four years ago.
CAFC in Oracle v. Google, 2014
Fair use is a mixed question of law and fact.
CAFC in Oracle v. Google, 2018
The Supreme Court has said that fair use is a mixed question of law and fact... [but] whether hte use at issue is ultimately a fair one is something we [r]eview de novo.... Despite this case law, all aspects of Google's fair use defense went ot the jury with neither party arguing it should not.
CAFC in Oracle v. Google, 2014
On balance, we find that due respect for the limit of our appellate function requires that we remand the fair use question for a new trial.
CAFC in Oracle v. Google, 2018
The jury returned a verdict in favor of Google on its fair use defense.... All jury findings relating to fair use ... must, under governing Supreme Court and Ninth Circuit case law, be viewed as advisory only.
So this is the key. Juries are supposed to resolve questions of fact. Judges are supposed to resolve questions of law. The line between the two can get blurry, but here CAFC is playing a tricky two step game. In 2014, it argued that because fair use has a component of "fact" in it, it's an issue for the jury to decide, and thus made it clear that a new trial was necessary on fair use because of "the limit of our appellate function" (to make determinations on matters of fact). But here, once the jury came back with a result that the same judges disliked, it miraculously started arguing that, well, really, we can review the jury's decision because we can and because juries are "advisory only." That alone is a fairly striking claim, given that the courts are supposed to be pretty careful about only overturning juries on matters of law, not facts.
This clearly is the same three judge panel completely moving the goalposts from their earlier decision in the same case because they don't like the outcome.
CAFC in Oracle v. Google, 2014
We cannot say that there are no material facts in dispute on the question of whether Google's use is "transformative," even under a correct reading of the law.
CAFC in Oracle v. Google, 2018
Google's use of the API packages is not transformative as a matter of law...
Got that? In 2014 the court is saying, this is a factual issue that a jury needs to decide. In 2018, after its upset with what the jury decided, suddenly it's a matter of law that CAFC can miraculously decide and overturn the jury.
CAFC in Oracle v. Google, 2014
[R]easonable jurors might find that [the functional aspects of an API] are relevant to Google's fair use defense under the second and third factors of the inquiry.
CAFC in Oracle v. Google, 2018
Although it is clear that the 37 API packages at issue involved some level of creativity--and no reasonable jury could disagree with that conclusion--reasonable jurors could have concluded that functional considerations were both substantial and important.... The Ninth Circuit has recognized, however, that this second factor "typically has not been terribly significant in the overall fair use balancing."
Another fun one. In 2014, the court pointed out that perhaps the 2nd factor (the nature of the work -- in this case, the fact that it's an API that is functional rather than expressive) could weigh heavily on the fair use analysis. In 2018 when the jury did exactly what the CAFC suggested it might, but which the CAFC obviously hoped it would not, it suddenly poo-poos the idea that the 2nd factor really matters at all.
CAFC in Oracle v. Google, 2014
[T]h[e]se core packages ... may be necessary for anyone to copy if they are to write programs in the Java language. And, it may be that others of the packages were similarly essential components of any Java language-based program. So far, that type of filtration analysis has not occurred.
CAFC in Oracle v. Google, 2018
Even assuming the jury accepted Google's argument that it copied only a small portion of Java, no reasonable jury could conclude that what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.
Once again, four years ago, these same three judges, looking at the same issue said that the question of what was necessary or essential was one for the jury to decide. Four years later, when the jury decided exactly that question in a result CAFC doesn't like, suddenly it changes its tune to say that "no reasonable jury" could have ruled the way that CAFC itself said a reasonable jury could rule the last time it looked at this case.
CAFC in Oracle v. Google, 2014
Because there are material facts in dispute on this [market impact] factor as well, remand is necessary...
CAFC in Oracle v. Google, 2018
The district court concluded that he jury "could reasonably have found that use of the declaring lines of code (including their SSO) in Android caused no harm to the market for the copyrighted works, which were for desktop and laptop computers." ... [But we find] no reasonable jury could have concluded that there was no market harm to Oracle from Google's copying.
This one is even more blatant. Four years ago this very same panel, looking at this very same case, said a jury had to decide whether the market impact of the copying was fair use or not. Then, four years later, after the jury did just what CAFC said it must (but where it came out with a result that CAFC doesn't like) suddenly, CAFC insists that no reasonable jury could have possibly ruled this way.
CAFC in Oracle v. Google, 2014
On remand, the district court should revisit and revise its jury instructions on fair use consistent with this opinion so as to provide the jury with a clear and appropriate picture of the fair use defense.
CAFC in Oracle v. Google, 2018
[W]e conclude that Google's use of the 37 Java API packages was not fair use as a matter of law. We therefore reverse the district court's decisions denying Oracle's motions for JMOL and remand for a trial on damages.
Again, in 2014, the same three judge panel was insistent that the jury and only the jury could decide what counted as fair use. And now, suddenly, magically, after the jury just did that, CAFC has decided it's not an issue of fact after all, and CAFC can just snap its fingers so that it's a matter of law, and overrule the jury.
What... the... fuck? Appeals courts sometimes will make dumb rulings, but it's quite astounding at just how much these three judges have telegraphed their position here when you compare the 2014 ruling with the 2018 ruling-- they wouldn't touch the fair use analysis four years ago, insisting that a jury had to do it -- and then just stomped all over the jury claiming that no reasonable jury could rule the way they said a reasonable jury had to rule just four years ago.
The same three judges. The same case.
If various appeals fail and this case does go back for a jury trial on damages, and the jury comes back with a super low damages amount like $1, that four years from now we'll be discussing a CAFC ruling about how "no reasonable jury" could do such a thing?
Hopefully, either CAFC will agree to rehear this case en banc and the other CAFC judges will realize just how bad this ruling is, or perhaps the Supreme Court will actually be persuaded to listen this time. The rumor mill has said that the Supreme Court was interested last time around, but after the Solicitor General told them not to (which, we're told, was hotly disputed within the White House) it passed. But nearly all of the players are different this time around. Of course, Oracle and its CEO have a very close relationship with the current administration, so it's possible that could create pressure on the Solicitor General to support Oracle's position.
Either way, the comparison between these two rulings isn't just judicial hypocrisy, it's judicial corruption. That's not in the sense that anyone was paid off (and, seriously, stop suggesting that -- it's not what's happening). It's corruption in the form of a panel of judges clearly wanting a particular result, and willing to do things they're not supposed to do to get that result.
Filed Under: apis, cafc, copyright, deference, fair use, federal circuit, juries
Companies: google, oracle
