Federal Circuit Reinstates Oracle's Multi-Billion Dollar Copyright Infringement Case Against Google

March.27.2018

The Federal Circuit today reinstated Oracle’s long-running lawsuit against Google for copying its prized Java technology and ordered a new trial on damages, adopting the central arguments developed by an Orrick appellate team and Oracle’s in-house legal department. A three-judge Federal Circuit panel unanimously overturned a 2016 jury verdict, rejecting Google’s argument that it was fair use for Google to copy Oracle’s Java software code into Google’s Android operating system.

“Google’s copying and use of this particular code was not fair as a matter of law,” the court wrote. “We conclude that allowing Google to commercially exploit Oracle’s work will not advance the purposes of copyright in this case …. 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.”

The decision was the second critical Federal Circuit ruling secured by Oracle and our appellate team -- led by partner Josh Rosenkranz -- in the copyright infringement litigation against Google. The Federal Circuit in 2014 found Oracle’s software code entitled to copyright protection, thus leading to a 2016 trial on whether Google’s copying of Oracle’s Java code amounted to fair use of the technology.

The Federal Circuit today found that it was not, a stunning rebuke to Google in one of the most closely-watched IP cases in the tech sector over the past decade.

"The Federal Circuit's opinion upholds fundamental principles of copyright law and makes clear that Google violated the law,” said Dorian Daley, Oracle’s Executive Vice President and General Counsel. “This decision protects creators and consumers from the unlawful abuse of their rights."

The decision was widely covered in the media, including The Wall Street Journal, Bloomberg, The American Lawyer, Law360 and Reuters.

In addition to Josh, the Orrick appellate team included partners Peter Bicks, Annette Hurst, Lisa Simpson, Andrew Silverman, Mark Davies, Kelsi Corkran, and Mel Bostwick, as well as associates Matthew Bush and Jeremy Peterman.

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E. Joshua Rosenkranz Partner, Supreme Court & Appellate, Intellectual Property

New York

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D:+1 212 506 5380
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Finance Sector
Supreme Court & Appellate
Intellectual Property
Complex Litigation & Dispute Resolution
White Collar, Investigations, Securities Litigation & Compliance
Antitrust & Competition
International Arbitration & Dispute Resolution
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E. Joshua Rosenkranz Partner

New York

Josh has been named American Lawyer's “Litigator of the Year” twice, in addition to being a finalist for 2022. In 2012, the magazine dubbed him “the Defibrillator” based on his streak of appellate wins for companies that “appeared to be at death’s door,” and in 2017 it declared, he “still deserves the moniker we once gave him.”

In 2014, The Financial Times named Josh one of the 10 most innovative lawyers in the North American legal sector for his work “demystify[ing] the technical issues” and securing a victory in the blockbuster Federal Circuit appeal, Oracle v. Google. Chambers USA has reported, “He wins accolades for his ‘brilliant analysis and judgment.’ Clients appreciate how he ‘rethinks every case from the ground up,’ and add: ‘He can take the most complicated legal or technological issue and present it in a way that seems like common sense.’” Another edition of Chambers USA added: “‘His briefs are quite simply beautiful,’” and “clients describe his courtroom presence as ‘both commanding and accessible at the same time.’ He has the ‘perfect combination of persuasiveness, intelligence, wit, and deference.’”

Josh's practice covers a wide range of subjects, including intellectual property, financial services, securities, privacy, antitrust, federal preemption, insurance law, corporate governance, criminal law, and constitutional litigation. Among his recent clients are Cisco, Credit Suisse, Cox Communications, DISH Network, Genentech, Gilead, Johnson & Johnson, JPMorgan Chase, Microsoft, Mozilla, Oracle, Sonos, and Royal Bank of Scotland.

Clients turn to Josh to win the highest stakes appeals, including appeals in cases that threaten the very survival of a business. For example:

He represented Microsoft in an international cause célèbre in the U.S. Supreme Court challenging the U.S. Government’s claim that it can serve warrants for emails stored overseas.
He represented DISH Network in one of the most high-profile patent appeals in the country, successfully overturning an injunction that threatened the company's life.
He has been lead counsel in multiple cases either defending or challenging verdicts over $1 billion.
He represented Facebook in the high-profile battle waged by the founder's Harvard classmates, the Winklevoss twins, who laid claim to the idea for Facebook, winning a ruling from the Ninth Circuit to end the lawsuit.
He won a landmark victory in a Supreme Court case that rescued the estimated $60 billion U.S. market of copyrighted goods manufactured abroad.
He represented 36 law schools in a high-profile Supreme Court case against the Department of Defense.

Josh was the founding president and CEO of the Brennan Center for Justice at New York University School of Law, one of the country’s foremost public interest firms. Over the course of eight years, he was the Brennan Center’s chief strategist on litigation and public policy advocacy. Before that, Josh founded the Office of the Appellate Defender, a public defender office specializing in criminal appeals.