Late on Wednesday by local time, Oracle and Google made a handful of filings, all of which relate to how the jury will be instructed with respect to the copyright questions it will get to decide next week.
Both parties commented on a draft verdict form. Oracle wants each of the API packages to be treated as a "work as a whole" for infringement purposes, while Google argues that Oracle can claim rights only in the entirety of what Sun once registered with the Copyright Office (and furthermore disputes that certain legal theories proposed by Oracle in this context should be applied here). In a sweeping motion for judgment as a matter of law, Google tries to eliminate large parts of Oracle's copyright claims, such as the assertion that Google programs incorporating the APIs are derivative works and all infringement allegations concerning Android's documentation for developers.
On some of these items I'll comment at a later stage. Based on the reports (including live Twitter coverage) I've seen, I doubt, at least for now, that Judge Alsup is going to throw out large parts of the copyright issues instead of putting them before the jury.
The most interesting issue addressed in those midnight filings is Google's objection to Judge Alsup's plan to tell the jury that that Oracle's copyrights extend to the structure, sequence and organization of the asserted Java APIs, while actually postponing his judgment as a matter of law until a later point. This is what the judge told Google:
"I've already said that I'm going to instruct the jury, subject to a motion under Rule 50 [motion for judgment as a matter of law, i.e., a decision by the judge himself] later at the end of the case. I'm going to instruct the jury that the copyrights extend to the Structure, Sequence, and Organization.
Now, I'm reserving on that ultimately. I see both arguments on that point, but we ought to get the verdict on that. If you were to win on fair use, for example, then the judge doesn't have to decide those hard questions."
Besides what Google quotes, Judge Alsup also indicated that he'd like to organize this trial in a way that any appeal can't realistically lead to a new jury trial. He'd like to get to a point where this is all about legal questions that judges rule on without involving juries.
Furthermore, it's obvious that if the judge postpones those "hard questions", there's at least a chance that the parties settle before he has to rule on them.
But the problem with this course of action is that the party losing the jury verdict might later attribute the outcome to the way the jury was instructed. And if an appeals court agreed, there would have to be a new jury trial, at least on a subset of the issues.
Google wants the jury to be told that it should rule on infringement, fair use and Google's equitable defenses based on the "assumption" of copyrightability, but doesn't want the jury to think that Google lost its non-copyrightability argument. Since this "would explicitly tell the jury that a fundamental premise of Google's defense case is wrong (rather than simply undecided)", which would "leave the jury wondering what Google and its witnesses have been talking about for the past two weeks" and, especially, "prejudice the jury against Google on the issues the jury will actually decide".
But the other way to look at it is whether Oracle would be prejudiced. And the way to look at that possibility is that if the judge rules against copyrightability, the whole API copyright issue works out in Google's favor, but if he rules in favor of copyrightability, he would, in retrospect, simply have told the jury the truth -- even if prematurely, or one might say: presciently. Maybe Judge Alsup already knows he will rule in Oracle's favor but keeps his cards close to his chest just in order to postpone the decision for the reasons stated further above. That may appear very speculative, and I'm not saying that it is the case (or that it's likely the case), but it would be totally plausible. At the very least it's clear that there's enough of a possibility that copyrightability will be decided in Oracle's favor since the judge wouldn't otherwise waste court resources and the jury's time. Also, he denied, almost entirely, a Google motion for summary judgment on Oracle's copyright claims last summer.
In the scenario of Oracle being right on copyrightability, there would, however, be very significant prejudice for Oracle if the jury decided on infringement, fair use and Google's equitable defenses based on considerably uncertainty over whether the material at issue is even protected at all. If that prejudice was outcome-determinative, Oracle would never know how the judge would have decided on copyrightability -- because in that case, he'll say that the finder of fact determined there was no infringement, rendering moot any questions of copyrightability. The only way Oracle could get a decision on copyrightability in that scenario would be a judicial decision overruling the jury, or a new jury trial with a different outcome.
The prejudice to Oracle in the scenario in which it is right on copyrightability is clear and substantial, while the prejudice to Google in a scenario in which it is right on non-copyrightability is zero in connection with the copyright part of the case -- and it would be at least difficult to argue that the jury instructions on the copyright part of the case will affect the outcome of the patent phase. I guess that's the way the judge looked at it -- otherwise he'd certainly prefer to tell the jury it should just come from the assumption of copyrightability.
In addition to these considerations, the parties probably also take into consideration what they believe the likelihood of different outcomes is. Jury verdicts are never very predictable, but the parties have now had eight trial days and may have an idea of how some members of the jury might view the issues (for example, based on the questions they asked). Based on the evidence that has been shown, I think it's pretty clear that the primary issue on the copyright part is copyrightability. There can be no reasonable doubt about the use of the relevant material; fragmentation and the scope and scale of what Google uses (Oracle, by the way, asks the judge to instruct the jury to look at this qualitatively rather than quantitatively); and Google's equitable defenses are largely based on what Jonathan Schwartz wrote, but there's a mountain of evidence to the contrary and Oracle presented some very powerful evidence this week: an article by CNET's Stephen Shankland from November 2007 according to which a very senior Sun executive publicly expressed concern over fragmentation shortly after Android was launched and its incompatibility with Java became known.
I'm not saying I know how the jury will decide, since nobody knows, but Google faces quite a challenge. Assuming, for the sake of the argument, that Google loses the verdict, there will be headlines that portray Google as an infringer, and pressure on Google to settle this case will grow. Those PR and settlement-related considerations may well be the true motives behind Google's far-fetched and unconvincing theory of prejudice with a view to the jury verdict. (Again, if the stuff indeed turns out to be copyrighted, there's no problem with telling it to the jury now anyway, and if the opposite turns out to be true, the jury verdict on infringement and the related defenses won't matter.)
Given that Oracle would undoubtedly face a risk of "hard" prejudice (prejudice in connection with the jury verdict) while Google's prejudice is at best "soft" (relating to perception, reputation and settlement negotiations), I think there are really only two choices. Either the court rules on copyrightability upfront (and then tells the jury what the outcome was) or it proceeds as it intends and tells the jury that the material is copyrighted. I may also see a third way if someone comes up with an idea I haven't thought of, but Google's proposal is not a viable third way, no matter how much one may understand Google's interest in avoiding negative publicity.
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