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Google May Owe Billions To Oracle For Android
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Tech titans slugging it out to protect proprietary intellectual assets is a boxing bout long in the making. In this corner? Oracle “The Java” whose multi-billion dollar lawsuit against Google alleged copyright infringement for Google’s “unfair” use of it’s Java programming language. And in this corner, the reigning champion, Google “The Android”, whose previous wins include a TKO of Oracle after a jab jolting 2016 jury trial and verdict to uphold the “fair use” of certain Java programming language to design the Android operating system.  On Tuesday, after the hotly contested 2016 verdict, the United States Court of Appeals reversed the 2016 jury verdict holding that Google’s use of Java was NOT protected under the fair-use provision of copyright law and that Google has to pay up! “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform,” stated a panel of three Federal Circuit judges in yesterday’s opinion.  “This is a hugely important development in the law of copyright and fair use,” said attorney J. Michael Keyes, partner and intellectual property law expert at Dorsey & Whitney. “If it stands, there are numerous implications.”

Pretty boy and new kid on the block Google, didn’t see this left hook coming. After all, Oracle was a seasoned but slow fighter, heavy-footed in intellectual property but lacked finesse in how to apply and design new systems based on their copywritten Java coding language. Google was simply bobbing and weaving. It’s not Google’s fault if they were smart enough to slightly change the Java code and create a new operating system juggernaut that quickly became the industry standard. After all, Java was already out there being used freely by millions of people. Duh. So why should Google have to pay Oracle royalties for being more innovative than them and creating something new that made Google gazillions? If you can’t swing in the ring, get off the ropes and take a fall, right?

Not so fast my little boxing bookies. Even the sport of boxing has rules and referees, commissions and regulators all working to ensure the integrity and fairness of the sport. And in this case, the rule of law in question is the fair-use provision of the copyright law. “One of the key arguments Google made was that using the API packets for cellphones was “transformative” for purposes of fair use,” explained Keyes. “The appellate court rejected that.  What this means is that simply porting the work (even a small portion of it) to a new platform or medium doesn’t mean you are transforming the underlying work. The old adage that “the medium is the message” doesn’t necessarily fly in the context of fair use.” Keyes went on to say, “A jury’s determination of fair use is far from immunized on appeal. The Federal Circuit had no qualms about diving in, looking at the evidence, and coming to a different legal conclusion on the central issue that was at the heart of the retrial,” said Keyes.

And just like Rocky Balboa delivering a knockout punch after being pummeled on the ropes by Apollo Creed, Oracle dances in the center of the ring with the title belt while Eye Of The Tiger is playing in the background. In a statement issued on Tuesday, Oracle hailed that the “decision protects creators and consumers.” Google still dazed, “We are disappointed the court reversed the jury finding that Java is open and free for everyone,” a Google spokesman said in a statement. “We are considering our options.” Clearly in the battle of the tech titans, taking even a small amount of copywritten code can knock you out for the count!


Special thanks to J. Michael Keyes, partner, Dorsey & Whitney. Follow him on Twitter. 

About The Author
Tina Tyler
Tina Tyler is a veteran broadcast news anchor/reporter. Tyler is the founder and CEO of TINA ON TECH where she serves as producer and host of the weekly syndicated podcast TINA ON TECH and Editor-in-Chief for the TINA ON TECH website. Tyler is also a contributing writer for Tyler is a member of the Society of Professional Journalists and the National Academy of Television Arts & Sciences. Tyler is the only African American female TV host, writer, producer, and owner of technology-themed content.

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