Sean Fowler May 27, 2016, 10:41am

SAN FRANCISCO – As two Silicon Valley tech giants prepare to face off in court, experts are saying that it's nearly impossible to predict who will come out on top.

"Fair use is inherently unpredictable, because a jury gets to decide what it thinks is 'fair,'" Professor Tyler T. Ochoa of the Santa Clara University of Law's High Tech Law Institute told the Northern California Record. "Unless there is a precedent that looks very similar, it's always hard to predict how a given fair use case will turn out."

The tech giants in question are Google and Oracle, who have been locked in a copyright battle since 2010. Oracle says that Google used part of Oracle's Java programming language to develop its Android mobile phone operating system without getting a license from the company. Oracle is not just seeking financial damages, but a court order that would be "reasonably tailored" to the case and end Google's alleged infringement of Oracle's copyright, likely requiring a complete rewrite of the hardware.

"If Oracle wins, it will encourage software copyright owners to use copyright as a tool to sue or threaten competitors," Ochoa said. "The Federal Circuit's decision in this case gave software copyrights a broad scope, much broader than had been permitted in the previous 20 years or so."

The Federal Circuit's decision refers to a 2012 hearing where the code in question was determined to be copyrightable, and thus there could be a hearing on whether Google violated that copyright. It was a ruling Ochoa disagreed with, signing his name with 40 other academic professionals who believed that the code should not be copyrightable, urging the Supreme Court to take the case on.

"I would expect all of us would side with Google in saying that the use of the structure, sequence, and organization (and declaring code) of the 37 Java API packages should be considered to be a fair use," Ochoa said. "Indeed, it should not have been considered copyrightable in the first place."

The Supreme Court declined to hear the case, leaving the federal ruling in place and allowing a trial that has been called "the World Series of Intellectual Property" by one judge to continue. Oracle founder Larry Ellison is expected to testify, as is Safra Catz, who became the company's new co-chief executive officer in the interlude between cases. For Google, CEO Larry Page is expected to testify, as well as the now-called Alphabet Inc. Chairman Eric Schmidt.

If Google wins the case, little is expected to change, as copyright is already rather limited in scope and doesn't need to become narrower. Ochoa, however, says an Oracle victory could have massive impacts on the software business world, as it would open the door to other companies filing lawsuits under similar circumstances, or even use the threat in negotiations.

"What an Oracle victory in this case would do is open up the possibility of copyright claims for the structure, sequence, and organization of software more generally," Ochoa said.

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