In a second go-round of its copyright lawsuit against Google, Oracle is hoping to land aÂ knockout blow. A damages report filed last weekÂ in federal court reveals that the enterprise-software giant will ask for $9.3 billion in damages.
In its lawsuit, Oracle argues thatÂ Google infringed copyrightsÂ related to Java whenÂ it used 37 Java API packages to createÂ its Android mobile operating system.
The damages it’s seeking aren’t just more than the Java API packages are worthâ€”it’s far more than Oracle paid forÂ the entirety of Sun Microsystems, whichÂ wasÂ purchased in 2009 for $5.6 billion. By way of comparison, Google parent company Alphabet earned $4.9 billion in profits last quarter, according to IDG News, which reported on the Oracle figures yesterday.
Such a resultÂ would be far and away the biggest copyright verdict ever.Â It’sÂ vastly larger than the $1.3 billion copyright verdict Oracle won against SAP in 2010, which at the timeÂ was said to be the largestÂ copyright verdict ever. (That award was later vacated by the judge overseeing the case, who called the jury’s decision “overly speculative.“)
The expert report arrives at its vast number by determiningÂ a “platform contribution,” which is based on “a weighted average analysis of what Google pays to others for the contribution of their non-Android mobile platforms in connection with generating searchÂ advertising revenue.” In the expert’s view, other mobile platforms, like Apple’s iPhone, contribute “approximately 36 percent of value to mobile advertising,” according to the report.
Using the “legal theory of commingling,” Oracle expert James Malackowski claims that Oracle shouldÂ get 100 percent of that platform contribution. “Google faced an extremely competitive landscape with a very limited window of opportunity,” he writes. “Java represented a significant portion of the market at the time, and Google overtly capitalized upon that familiarity and comfort with the very important audience of carriers and OEMs.”
GoogleÂ has its own damages expert, of course, who will presumably argue any damage award should be much lower, but Google’s suggested numbers aren’tÂ public yet.
Oracle first sued Google over copyrights and patents related to Java in 2010, and the case went to a jury trial in 2012. The juryÂ sided with Google on the patent issues and split on copyright matters.
However,Â the case ended in a total victory for Google when US District Judge William Alsup made a groundbreaking ruling that APIs weren’t copyrightable at all. He noted thatÂ 97Â percent of the source code in the API packages wasÂ different, with only aÂ three percent overlap that included things like packages, methods, and class names. “Duplication of the command structure is necessary for interoperability,” he noted.
The US Court of Appeals for the Federal Circuit saw things differently, and itÂ overruled Alsup on the API copyright issue. However,Â the higher courtÂ didn’t decide that Google infringed the copyrights. Instead, it sent the case back to Alsup toÂ decide whether Google’s use of the copyrighted APIs was a “fair use” under the law. Now another trial is approaching, set to start on May 9.
Before the firstÂ trial, Oracle submitted an expert report asking forÂ damages between $2 billion andÂ $6 billion. Alsup didn’t let those figuresÂ get anywhere near a jury, and threw out the expert report. A second Oracle expert report suggested damages from $1 billion to $2 billion, and Alsup threw that out asÂ well. A third damages report was never made public.