The Federal Circuit's Judicial Hypocrisy In Overturning Jury Concerning Java API Fair Use Question

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 fine 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 "transformativ