Tuesday, November 24, 2015

Oracle v. Google: Judge Alsup, who reportedly taught himself Java, gets the law wrong again

Many people were impressed by Judge William H. Alsup's claim (according to media reports) that he had taught himself Java to better be able to judge the Oracle v. Google Android-Java case. After the Federal Circuit threw out his non-copyrightability decision as fundamentally wrong, many Judge Alsup admirers remained loyal to their hero and thought that the Federal Circuit judges just didn't understand the issues. I have said all along that the Federal Circuit showed a better understanding not only of the law but also of the underlying technical aspects than Judge Alsup. I can now show you a major error in the introductory part of a new decision by Judge Alsup that shows the Federal Circuit understood the API copyright issues at the intersection of law and technology far better than Judge Alsup.

What the Federal Circuit has decided is now law of the case, and Judge Alsup has just incorrectly described the law of the case. Here's what he wrote in a procedural order he handed down yesterday:

"The United States Court of Appeals for the Federal Circuit held that the remaining five percent infringed Oracle’s copyright in the structure, sequence, and organization of the Java Application Programming Interface, reversing a decision by this Court that had held the Java structure, sequence, and organization constituted a non-copyrightable 'method of operation' within the meaning of Section 102(b) of the Copyright Act."

Something that omits an important part in such a context is also an error. The above passage is, therefore, an incorrect summary of what the appeals court actually decided. The easiest way to see that Judge Alsup missed a key point here is to look up the "Conclusion" part at the very end of the Fed. Cir. opinion:

"For the foregoing reasons, we conclude that the declaring code and the structure, sequence, and organization of the 37 Java API packages at issue are entitled to copyright protection." (emphasis added)

There you have it. Judge Alsup refers exclusively to the structure, sequence and organization, when in reality the Federal Circuit determined that not only the SSO but also "the declaring code"--approximately 7,000 lines--was protected by copyright. That's important because the declaring code was copied literally, while you can't literally "copy" an SSO any more than you could eat a recipe.

This error regarding the law (of the case) should give the remaining die-hard Judge Alsup fans out there pause.

By the way, his focus on a percentage, when copyright law actually doesn't care about percentages if the heart of a protected work was taken and especially doesn't care about the percentage of stolen material relative to what it gets incorporated into, does nothing to dispel concerns about him being "hostile" to Oracle's case. I just quoted "hostile" from The Recorder's article on yesterday's decision.

For the context in which that statement was made, let me refer you to my previous postings on the related Oracle v. Google motion process (in reversely chronological order):

Judge Alsup denied Oracle's motion to disqualify the court-appointed expert, Dr. Kearl. I disagree with that decision and I will talk about it some more on another occasion, but before I do so, I want to see (i) what the scope of the expert's testimony will be (a footnote says a tentative order on that question will come down shortly) and (ii) whether or not Oracle is going to live with this decision or fight it.

Finally, here's the order:

15-11-23 Order Denying Oracle Motion to Disqualify Dr. Kearl by Florian Mueller

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