“The parties are directed to file supplemental letter briefs addressing the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard. The briefs, not to exceed 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, August 7, 2020.”
The “second question presented” is Google’s appeal of the Federal Circuit’s 2018 decision reversing a trial jury’s fair use finding in favor of Google. The “standard of review” is a reference to the “de novo” standard used by the Federal Circuit in the opinion under review. The Seventh Amendment is the constitutional right to a jury trial (“the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States …”).
The Court gave the parties a long time to write those ten pages – three months. (Oracle’s Brief, Google’s Brief). Now that August 7, 2020 has come and gone, and the letter briefs have been filed, where does the issue stand?.
For brief background let me describe the events that led to this point.
After the Federal Circuit reversed the trial court on the copyrightability of the Java API declaring code there was a jury trial on Google’s fair use defense. The jury entered a general verdict in favor of Google. Oracle filed a motion for judgment as a matter of law before the case went to the jury, and renewed it following the verdict. The trial judge denied that motion, upholding the verdict.
Oracle appealed and in 2018 the Federal Circuit reversed, holding that Google’s fair use defense had failed as a matter of law. The Federal Circuit reviewed the verdict “de novo” – weighing the facts itself and giving no deference to the legal conclusion the jury had reached based its evaluation of those facts.
That decision (along with the Federal Circuit’s 2014 decision on copyrightability) is now before the Supreme Court.
As it turns out, the issue Oracle and Google focus on in their August 7th briefs is a legal technicality. The technicality arises from the Supreme Court’s conclusion, in a 1985 copyright case, that fair use is a “mixed” question of fact and law. However, mixed questions are not all alike, and may depend on whether a case involves primarily legal or factual work. Which predominates in this case – law or facts? Is Google right that factual issues predominate, in which case the Federal Circuit applied the incorrect standard of review? Is Oracle right that de novo review was appropriate here and that, more broadly, every fair case should be decided by judges alone?
Google argues that the Federal Circuit failed to give appropriate deference to the jury verdict and the trial judge’s post-trial decision in its favor. Google asserts that the correct legal standard, which the trial judge held favored upholding the verdict, is whether a “rational trier of fact” could have reached the jury’s conclusion. Under this standard, Google argues, the jury verdict for Google should be upheld.
On the mixed fact/law issue, Google argues that in this case factual questions predominated, and therefore the appeals court should have deferred to the jury and trial judge. To drive its point home Google provides this list of factual questions that were presented to the jury:
- “the significance of the common practice of reusing software interfaces;
- the extent to which Oracle made the declarations available to use without a license;
- whether or how Java SE was used in smartphones or was suited for that environment;
- how functional the declarations are, and thus removed from the core of copyright;
- how quantitatively or qualitatively significant the reused declarations were in comparison to the whole of the copyrighted work;
- how much Sun Microsystems (the original creator of Java SE) supported Google’s reuse;
- the degree of market harm, if any, suffered by Oracle;
- how transformative Google’s reuse of the declarations in a smartphone was;
- whether Google reused more than necessary to achieve an innovative purpose;
- whether Android competed with Java SE in the market for any derivative product;
- what were the reasonably likely future derivative markets for Java SE;
- whether the amount of creativity Android unleashed justified the reuse; and
- which of the four statutory factors or other unenumerated factors was more or less important in view of all other evidence in the record.”
Google asks the Court to find that when a jury renders a general verdict on disputed facts such as these a reviewing court must view the evidence in the light most favorable to the verdict, not perform its own de novo weighing of the evidence.
Oracle argues that fair use is a primarily legal, not factual, question properly determined de novo:
The ultimate determination whether a defendant’s copying qualifies as fair use entails primarily legal work because that analysis involves legal judgments balancing the competing policies embodied in the Copyright Act of rewarding innovation, protecting the author’s property rights, encouraging progress of science and arts, and safeguarding constitutional free expression. It is the job of a judge, not a lay jury, to calibrate these interests … Because fair use entails primarily legal work, it receives de novo review.
Based on this argument Oracle asks the Supreme Court to go one step further and hold that there is no right to a jury trial on copyright fair use, an issue the Court has never before directly addressed.
And, in case the Court doesn’t accept this argument, Oracle argues that in this particular case the balance of facts and law is mostly legal, and therefore the appeals court was right to review the jury verdict de novo.
WHAT WILL THE SUPREME COURT DO?
First, it’s unlikely that the Court will decide the broad issue of whether fair use should be tried by judge or jury. There’s no need to address such an important issue in this case, particularly when that issue hasn’t been briefed in depth and neither party raised it as a question on appeal.
However, there is a good chance the Court will decide that under the facts of this specific case the fair use determination was primarily factual, and therefore the Federal Circuit was wrong to review the case de novo – the jury verdict should have been reviewed under the “deferential” standard.
One incentive for the Court to decide the case in this manner is that it allows the Court to avoid the thorny Java API “copyrightability” issue, which is difficult both technically and legally. Deciding the case on fair use grounds avoids that issue. Deciding that the Federal Circuit failed to give proper deference to the fair use jury verdict for Google resolves the case on the narrowest possible grounds.
I’ll go out on a limb and predict that the Court will reverse the Federal Circuit based on its erroneous application of the de novo standard. I’ll also predict that rather than send the case back to the Federal Circuit for a third hearing it will uphold the verdict in favor of Google and end this marathon litigation once and for all.
Oral argument is schedule for October 7th, so stay tuned. In the meantime, the key legal documents in this case can be found on my Oracle v. Google Resource Page here.