Oracle accepts $0 in damages from Google, moves toward appeal

The usual arguments for someone to settle a legal case are avoiding the costs of litigation, and a potentially ruinous award.

From Google's perspective, though, these may not be operating the way they usually do. Google, and particularly Android, are getting patent suits from all quarters, and have to think about the cost of all that litigation, not just this case. So, they might view the best outcome in this case as the one which is most likely to deter the next guy. Quietly settling for a low nine-figure sum is unlikely to achieve that; quiet settlements for that amount risk them having patent trolls lined up out the door from Mountain View to Gilroy. And after Oracle came in initially demanding billion-dollar damages up front plus a share of ongoing Android revenues, even that might not be enough for Oracle to "save face". (Edit: yes, I'm aware this is no longer strictly a patent case, but that's how it started, patents were an issue at trial, and once it goes to court, both parties are always throwing whatever they have at the wall.)

Also, at this point, the prospects of a large award against Google are (one hopes!) minimal --- they could only come after a reversal on appeal. And, in addition to Alsup's trial court ruling, they can count on a flood of amicus briefs pointing out (correctly, IMHO) how reversal would be calamitous for the industry. So, that's a gamble Google might want to take. And Oracle has no choice.

So, a settlement might be in the interest of the larger community, but I'm not sure either party would likely see it in their own private interest.

The ruling that the APIs were not copyrightable was directly tied to the details of the specific APIs in this case. Among other things, this is because existing Ninth Circuit caselaw was unfavorable to an absolute bar on API copyrights, so Judge Alsup couldn't easily rule on the law independently of the case in front of him. To make an analogy, he could have found a phone number or address uncopyrightable as a general rule, but to decide if a copied portion of a book is copyrightable he has to look at what's in it (both the portion and the book as a whole).

Appeals courts aren't supposed to overturn factual findings unless they are "clearly erroneous". Judge Alsup was careful with his findings and he has experience with programming that the selected appeals-court judges are unlikely to have. While it is theoretically possible they'd second-guess his factual findings, it would be a very big stretch. And if you take his factual findings as-is, it becomes pretty hard to challenge his legal interpretation of those facts (especially since none of the coverage I've read suggests that his legal reasoning was unusual or controversial).

It isn't impossible for Oracle to win on appeal, but their changes are slim. Beyond that, if they win on appeal all they get is a do-over on the API copyright question (and it is unclear what the parameters of that do-over would be). Given that we know that the jury deadlocked at 9-3 in favor of Google on fair use (and was 11-1 in Google's favor earlier in the deliberations), even if Oracle got their do-over the odds are against them winning anything meaningful from it.

Sites like Groklaw (who understand legal language far better than me) were praising the judge for how well he constructed his ruling to withstand appeals. There are no obvious gaping holes in his logic, and so I am sure Oracle's legal team will have to write a pretty clever appeal brief in order to be granted one.

Really? Is that how legal retainers work at this level? On the kind of cases I work on, cost is always a factor in the decision whether to appeal. But they are not remotely like this case.

If they are on retainer there is still a cost. An opportunity cost -- if their team is doing this, then it is potentially not doing something else, maybe more useful and productive.