Monday, October 26, 2020
The Supreme Court’s first batch of oral arguments this Term included Google LLC v. Oracle America, Inc., a high-profile and high-stakes ($9 billion) lawsuit about Google’s use of Java programming code to develop its Android operating system. Google prevailed after a jury trial, but the Federal Circuit reversed. Google’s Supreme Court cert petition initially presented two questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found at trial, Google’s use of Oracle’s software interface constituted fair use for purposes of copyright law. That second question, however, prompted the Court to ask its own question: what was “the appropriate standard of review” for the jury’s fair use verdict?
I’ve written a piece that examines this standard of review issue, Appellate Courts and Civil Juries, 2021 Wisconsin L. Rev. 1 (forthcoming). There’s a lot more detail in the full article, but I wanted to highlight a few points in the wake of the recent oral argument—during which there were several questions about the standard of review.
My basic argument is that Rule 50 of the Federal Rules of Civil Procedure dictates a deferential standard of review. In order to displace a jury’s verdict, it must be the case that “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” This deferential “reasonable jury” standard is not insurmountable. There may be substantive principles of copyright law that compel a judgment for Oracle on the issue of fair use. Or there may be particular aspects of the trial record that render the jury’s verdict for Google unreasonable. Rule 50 does not, however, permit an appellate court to categorically declare “fair use” to be a question of law, such that a reviewing court may impose its own ultimate conclusion about whether Google’s “use” was “fair” without any deference to the jury’s conclusion.
In this important sense, appellate review of jury verdicts is not governed by the framework the Supreme Court has developed for deciding the standard of appellate review of decisions by lower court judges. That topic has become something of a cottage industry for the Supreme Court. It seems like just about every Term the Court grants cert to resolve the standard of appellate review for particular lower court rulings—a child’s habitual residence under the Hague Convention, a creditor’s insider status under federal bankruptcy law, whether to enforce an EEOC subpoena, whether to award attorney fees in a patent case, to name a few. And in that context, the Court has indicated that de novo review might be appropriate for a particular issue if the appellate court is “better suited to resolve” that issue, or if the issue entails primarily “legal” work rather than “factual” work.
That framework simply does not apply to appellate review of jury verdicts, however. In deciding the standard of appellate review of trial judge decisions, the Supreme Court writes on a clean slate. Except for Rule 52’s command that questions of historical fact must be reviewed deferentially, there is no general rule or statute that requires a particular standard of appellate review for a trial judge’s ultimate conclusion on a particular issue. For jury verdicts, however, Rule 50’s deferential “reasonable jury” standard governs.
One possible caveat to this general approach to appellate review of jury verdicts involves constitutional issues. There are some First Amendment cases where the Supreme Court has suggested that de novo appellate review of jury verdicts may be required. During the recent oral argument, Oracle’s counsel tried to argue that de novo appellate review was justified because copyright fair use “has constitutional implications.” Chief Justice Roberts cut counsel off, however, before he could expand on this point.
I talk more about appellate review of jury verdicts regarding constitutional claims and defenses in the last section of the article, but there a few things to keep in mind regarding the Google case in particular:
First, there do not appear to be any First Amendment implications to Google’s assertion of a fair use defense in this particular case. So it’s not clear that any constitutional concerns that might apply to fair use in other kinds of cases would influence the Court’s approach here.
Second, there remains considerable uncertainty about the precise scope of and justification for de novo appellate review of jury verdicts in the constitutional context. There is certainly no blanket rule that all jury verdicts relevant to constitutional claims and defenses are subject to de novo review. So the Court would need to do more than recognize the potential relevance of fair use to constitutional concerns—it would need to address why those constitutional concerns warrant de novo appellate review, while others do not.
Third and finally, to rely on this argument in the Google case would also require the Court to confront a split in the circuits regarding whether any de novo review of constitutional issues apples asymmetrically. Some circuits hold that independent review is required only when the trial judge or jury finds speech to be unprotected by the First Amendment; but ordinary principles of deference govern appellate review when the speaker’s claim or defense is successful at trial (as would be the case when a defendant prevails on a fair use defense). Because the jury found in favor of Google on its fair use defense, deferential review would still be required under such an asymmetric approach. So if the Supreme Court does treat Google’s fair use defense as triggering the distinct approach it has suggested for some constitutional issues, it would necessarily need to decide whether that approach applies asymmetrically.
It will be interesting to see how large a role this procedural issue plays in the Supreme Court’s ultimate decision in Google v. Oracle. It could be that the case hinges entirely on substantive principles of intellectual property law, which of course are well beyond the scope of this article.