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Oracle Responds to Google's Appeal Brief - "There Is No 'De Minimis' Defense" ~pj

By Pamela Jones et al.

Oracle has filed its Reply [PDF] to Google's Appeal and Cross-Appeal Brief. Google's was in response to Oracle's opening appeal brief, so now the 3-section symphony of appellate briefs is complete. Next will come oral argument, and then a decision from the Federal Circuit Court of Appeals.

I haven't yet read it carefully, so we can do that together, and swing back by for my thoughts on it and a text version. But meanwhile, get a load of this from the table of contents:

I. THERE IS NO "DE MINIMIS" DEFENSE TO COPYRIGHT INFRINGEMENT................. 63

It says there is no de minimis defense in the Ninth Circuit, only fair use. Oracle admits, in footnote 12, that it didn't argue this "throughout the proceedings below" but claims the appeals court can affirm the district court's ruling that the code in question was not de minimis "on any grounds that finds support in the record." So, a new argument raised for the first time in the appeal. That's the Boies Schiller style. Speaking of which, here's what Oracle wants:

On Oracle's appeal, this Court should reverse the district court's judgment and enter judgment on liability for Oracle. On Google's cross-appeal, this Court should affirm the district court's judgment.

In short, Oracle wants everything.

Full post as published by Groklaw on July 05, 2013 (boomark / email).