On a recent occasion, Judge Alsup has correctly stated what the Federal Circuit ruled to be copyright-protected in this case (unlike in an order earlier in the build-up to the May retrial). But when I read his draft jury instructions on fair use for the upcoming Android-Java copyright retrial, I couldn't believe my eyes because he basically portrayed the "fair use" determination as if copyright was anti-innovative and "fair use" was the way and the light. I'm now even more of a Judge Alsup skeptic than before, and depending on how this case continues, "skeptic" may soon be a gross understatement.
Oracle has just filed a document that makes it very clear that it deems those "fair use" jury instructions to be fundamentally flawed (to put it diplomatically) and between the lines it indicates that Judge Alsup only has two choices: he can either rephrase his instructions so as to be consistent with the Federal Circuit opinion (and mandate) or he can have another appeal, with a high likelihood of him ending up being the loser of the appeal once again. And if another one of his key decisions had to be overruled in this case, it could become a major embarrassment.
When judges ask for "critique" of a draft jury instruction, they expect and get extremely respectful responses. Oracle's response in this case is not disrespectful, but it voices such a fundamental disagreement with the judge that it's clear there's no love lost between them (this post continues below the document):
I'm now just going to quote, and comment on, some passages of Oracle's filing that show just how much the Java copyright holder disagrees with the judge:
"The Court's instructions do not accurately and evenhandedly state the law on fair use."
COMMENT: I don't want to read too much into that, still I can't help but interpret "not ... evenhandedly" as a way of saying "Your Honor, you want Google to get away with what it's done and short of saying so, you couldn't have made it any more obvious than with those proposed jury instructions."
"Taken as a whole, the effect of the Court's proposed instructions would be to eliminate the exclusive right to prepare derivative works (or to authorize others to do so)."
COMMENT: Just like Judge Alsup's non-copyrightability ruling threatened to "vitiate" (that term showed up in the amicus brief of a former U.S. copyright chief) software copyright, Oracle now claims that Judge Alsup's misportrayal of "fair use" law would effectively mean that anyone who creates a derivative work is highly likely to benefit from the fair use exception. Oracle's lawyers' use of "to eliminate" is typical hyperbole and I wouldn't go that far. It's not like those jury instructions would make it absolutely impossible or even highly unlikely for Oracle to prevail in a jury trial, but Oracle would indeed face an uphill battle in a situation in which, also in light of the Federal Circuit opinion, it should normally be on the winning track.
"If the instructions are given in the proposed form, they would violate the Federal Circuit's mandate and constitute reversible error."
COMMENT: This announcement of an appeal sounds so strong that I wouldn't even be surprised if Oracle tried to avoid a jury trial based on unacceptable jury instructions and take this to the appeals court as soon as possible. If I were in Oracle's shoes, I would certainly see no point in going into a second trial where the court's jury instructions on "fair use" are a huge issue. Maybe Judge Alsup thinks that this may up the pressure on Oracle to settle but that won't happen. It just won't happen unless Google makes Oracle an offer that is too good to refuse. What's going to happen is that Oracle will, if necessary, litigate for a few more years, or even many more years.
"The [introductory] instruction is too narrow and one-sided in favor of Google in characterizing copyright as protecting against 'plagiarism' and fair use as progress ('development of new ideas that build on earlier ones'). "
COMMENT: Here, Oracle comments on the most outrageous part of various problematic parts of the proposed jury instructions. You may wonder why I haven't published Judge Alsup's proposed instructions but that's because I don't think anyone would do the world a favor by publishing them: potential confusion of whomever may read them clearly outweighs any potential benefits.
"The Court's statement of the 'policy' of fair use [...] is not accurate, contravenes the legislative history, and is unsupported. Copyright protection (not just fair use) 'promotes' progress."
COMMENT: How can you critize a judge any more harshly than by saying (more diplomatically than how I'm now going to paraphrase it) that he's wrong on the law (this reminds me of a Federal Circuit judge wondering about just how much Judge Alsup got confused last time around), he's disrespecting lawmakers, and he's writing up things that are baseless?
"The instruction on commercial use should direct a finding in Oracle's favor that Google's use is 'purely' or 'entirely' commercial. The Federal Circuit found that Google copied 'for what were purely commercial purposes.' [...] Counsel for Google admitted at oral argument that Google's purpose was 'entirely commercial.'"
COMMENT: I expected Oracle to demand that the jury instructions, beyond merely stating the law and the Federal Circuit decision on copyrightability, contain some clear findings. It's one of the (many) things I missed when I read those draft instructions.
"The Court's proposed definition of transformative use is incorrect. It is inaccurate to instruct that '[a] new use is transformative if it is productive ….'"
COMMENT: In my observation Judge Alsup's draft instructions describe "fair use" in a way that would make the "fair use" exception almost seem to be a rule on an equal footing with copyright itself as far as software is concerned.
"It is also incorrect and confusing to refer to transformative use as any use 'adding value.' [...] It is not about 'added value.' A 'distinct' purpose is critical."
COMMENT: Oracle is right on this one: just think of a case like Campbell, where a parody of a music song also changed the music style. The "distinct" purpose is a reasonably high hurdle, and Judge Alsup's proposed instructions make it appear a much lower one than it actually is.
"Additionally, 'little more than plagiarism' [...] is not the test for what is not transformative. Transformation requires 'real, substantial' modification of the original work [...]"
COMMENT: I already disagreed at the time of the 2012 trial with how Judge Alsup described the concept of transformation to the jury, and things have only gotten worse since then...
"[R]eferences to SSO [...] must be accompanied by reference to the declaring code, otherwise the instruction misleadingly suggests that declaring code is not protected when the Federal Circuit 'conclude[d]' that both 'are entitled to copyright protection,' [...], and all agree Google copied the declaring code and the SSO."
COMMENT: On this one, let me refer you once again to the posting I already linked to at the start of this post. The Federal Circuit indeed held both the declaring code and the SSO copyrightable, and Judge Alsup has on at least one recent occasion stated this correctly, so the jury instructions should also make it absolutely clear (as opposed to confusing jurors).
"[S]pecific reference to a 'computer program' as functional biases the instruction. Finally, as per the Federal Circuit's finding, the jury should beinstructed that 'it is undisputed here that the declaring code and the structure and organization of the API packages are both creative and original.'"
COMMENT: As I wrote above, the proposed jury instructions suggest that software is always, no matter how creative or original, a second-class citizen in the realm of copyright law.
"It is incomplete to tell the jury it must 'decide how much weight to give each … factor.” [...] 'The Supreme Court has said that this [fourth] factor 'is 'undoubtedly the single most important element of fair use.’'"
COMMENT: The fourth factor is the effect of the infringement on the market for the infringed product (and authorized derivative products of the infringed product)
"Oracle respectfully notes that 5 pages are insufficient to raise all of its objections to these proposed instructions. Oracle hereby preserves all its objections, which include any deviations from Oracle's already proposed instructions, [...] and any additional objections by way of Oracle's proposed instructions and jury instruction briefing as per the Court's Standing Order."
COMMENT: By contrast, Google only raised three pseudo-objections to the proposed instructions and had enough space to discuss each of them in excruciating detail.
It's disappointing that there is now a real risk of the retrial being made pointless. I have little hope that Judge Alsup will make major changes to his proposed instructions. I guess he'll do something, but I can't imagine that it would be anything but insufficient. And depending on how insufficient it is, the appeals court may get involved with this case again rather soon...
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