Ninth Circuit Report

• Publication year: 2020
• Author: Anne-Marie Dao

Ninth Circuit Report

Anne-Marie Dao

Troutman Sanders LLP

Happy Spring! As an update to the last issue of the Ninth Circuit Report (in which the Supreme Court is considering the issue of whether, under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), willful infringement is a prerequisite for an award of an infringer's profits for a violation of Section 43(a), 15 U.S.C. § 1125(a)), respondents and petitioner have filed their final briefs, and the case was argued on January 14, 2020. We'll update once the Supreme Court weighs in on the case.

This Ninth Circuit Report will discuss a case you've all likely heard about-the Google. v. Oracle case.

WHAT IS THIS CASE ABOUT?

We don't have enough room to go through all the procedural history of the case-which began in 2010 and involves multiple lower court opinions, many jury trials, and Oracle estimating its damages at over $9 billion. After all, this case is described as the "copyright lawsuit of the decade."¹ In Google's petition for writ of certiorari, it describes the case as presenting "two exceptionally important questions concerning the copyrightability and fair use of software interfaces-lines of computer code that are necessary to allow developers to operate prewritten libraries of code used to perform particular tasks."² The two questions presented by Google are:

1. Whether copyright protection extends to a software interface.
2. Whether, as the jury found, petitioner's use of a software interface in the context of creating a new computer program constitutes fair use."³

GOOGLE

This case is between two technology giants-Google, and Oracle. The background of the dispute (as described by Google in its petition for writ of certiorari) is as follows:

Sun Microsystems originally developed the Java platform, which includes the free Java programming language. The software interfaces at issue are part of the Java language's application programming interface (API). Sun encouraged developers to learn the Java language by touting the ability to use software interfaces-also known as "the Java API declarations"-to access preexisting libraries of code used to perform particular tasks. The interfaces thereby facilitated development of programs in the Java language.
Google used some of the Java API declarations to build Android, a revolutionary platform for modern mobile devices such as smart-phones and tablets. Google incorporated those declarations to allow developers to write applications for Android using the Java language. Sun originally applauded Google for using the Java language. But after Oracle acquired Sun, it sued Google for copyright infringement.⁴

The United States District Court for the Northern District of California granted Google's motion for...