API Copyrightability Bleak House: Unraveling and Repairing the <I>Oracle v. Google</I> Jurisdictional Mess

Abstract

Like Dickens’ tale of Jarndyce and Jarndyce, the Oracle v. Google litigation has droned on for what seems like generations in the software industry with no clear end in sight. The litigation is on an especially wasteful and perilous course due to its peculiar jurisdictional posture. As a result of patent infringement allegations lodged in the complaint, the Federal Circuit has exclusive appellate jurisdiction notwithstanding that neither party appealed the rejection of the patent causes of action. Hence, the only issues presented to the Federal Circuit were copyright issues governed by Ninth Circuit, as opposed to Federal Circuit, jurisprudence. The Federal Circuit misinterpreted Ninth Circuit (and general) copyright law, thereby steering the case into a needless fair use retrial. Congress did not provide a mechanism short of Supreme Court review for ensuring that the Federal Circuit properly interpreted regional circuit law. After tracing the history of the Oracle v. Google litigation and critiquing the Federal Circuit’s analysis, this article evaluates a range of potential reforms to the appellate jurisdictional mess presented by software intellectual property litigation and proposes several solutions to this Dickensian predicament.