The Supreme Court will hear Google v. Oracle in the first week of the fall term. The case asks whether Google made “fair use” in copying Java computer code for development of its Android operating system. The parties submitted their merits briefs earlier this year, but since then the Court has asked them to file additional briefing on whether the appeals court used the proper standard of review to overturn a jury verdict in favor of Google.
In 2010, Oracle sued Google for copyright infringement. Oracle claims Google’s illegal use of its Java software code cost it $9 billion.
After trial, a jury concluded that Google’s use of the copied Java APIs was “fair” and therefore immune from copyright infringement and damages. The Court of Appeals for the Federal Circuit ruled “fair use” is a legal question for a judge to decide based on factual conclusions of the jury. Thus, it reviewed de novo the jury’s conclusion that Google’s use was fair, and ultimately ruled against Google. The Federal Circuit ruling wiped out Google’s defense to copyright infringement. Google appealed the infringement and fair use holdings to the Supreme Court.
Request for Supplemental Briefing
The Court requested that Google and Oracle file supplemental briefs addressing (1) the standard of review for determining whether trial evidence was sufficient to support the jury’s fair use verdict (in favor of Google) and (2) any impact of the Seventh Amendment on that standard.
The Seventh Amendment says that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” The phrase “rules of the common law” refers to legal rules that existed in 1791 England. Dimick v. Schiedt, 293 U.S. 474, 487 (1935).
Oracle’s Supplemental Arguments
In its supplemental brief, Oracle argues the Federal Circuit correctly applied a de novo standard of review. Generally, a court is limited to factual determinations of the jury. However, a court is allowed to review de novo (with a “fresh look”) how the law is applied to the jury-determined facts. Fair use is primarily a legal question because the analysis requires legal judgment to balance the competing policies of rewarding innovation, protecting the author’s property rights and furthering the constitutional mandate of “promoting progress of science and useful arts.”
Oracle notes that fair use also implicates First Amendment concerns. For example, parody, satire, news reporting, criticism, education, research, and other core applications of fair use are part of copyright’s “built-in First Amendment accommodations.” Therefore, de novo review is appropriate when reviewing a fair use jury verdict because judges, not juries, are best suited to protect the stability and development of First Amendment protections.
Oracle also argues that whether fair use is reviewed de novo or not makes no difference in this case. A party is always entitled to judgment as a matter of law, despite a contrary jury verdict, if the jury verdict is clearly erroneous. In this case it was unreasonable for the jury to hold that Google’s reuse of Oracle’s software for a platform that directly competes with Java was fair. Therefore, no reasonable jury would have legally sufficient evidentiary basis to conclude that Google’s use of the Java APIs was fair.
Oracle argues that the Seventh Amendment’s prohibition on re-examining facts does not prevent courts “from determining whether governing rules of federal law have been properly applied to the facts.” New York Times Co. v. Sullivan, 376 U.S. 254, 284-85 (1964). Furthermore, no Seventh Amendment right applies in this case because fair use was not a recognizable defense in 1791, and no comparable defense was tried by juries at that time.
Google’s Supplemental Arguments
In its supplemental brief, Google argues that the Federal Circuit erroneously overruled the jury verdict. The Supreme Court recently reaffirmed that fair use is a “notoriously fact sensitive” issue that “often cannot be resolved without a trial.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1513 (2020). The trial in this case lasted two-and-a-half weeks. The jury heard testimony from seventeen live witnesses, deposition testimony of a dozen witnesses and was presented with about 200 trial exhibits.
A jury verdict may only be overturned if a “rational trier of fact” could not have reached the jury’s conclusion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-151 (2000). The district court properly rejected Oracle’s post-verdict motions and correctly concluded that a reasonable jury, after weighing all the evidence and applying the court’s instructions, could find that Google’s use was fair. Because fair use is such a fact intensive inquiry, it is hard to see how the Federal Circuit could rule de novo on fair use while remaining true to the jury’s factual conclusions.
Finally, Google argues that under the Seventh Amendment, it has a constitutional right to a jury trial on fair use. Google argues that early English cases demonstrate that juries decided questions of copyright liability, including early precursors of what would later evolve into the fair use defense.