Thursday, May 26, 2016

Oracle v. Google: jury finds in favor of "fair use," as no reasonable, properly-instructed jury could have

Courtroom tweeters in San Francisco have just reported that the Oracle v. Google retrial jury has found in favor of Google, i.e., has determined that Android's use of the declaring code and structure, sequence and organization of 37 Java APIs is "fair use."

This is the outcome of a rigged (for emotional, not financial reasons) retrial. It's absolutely wrong. This here is a far cry from anything any appeals court ever deemed to constitute fair use.

At the outset of the trial, I had already predicted that the jury was more likely than not to find for Google. I said 55%-60%. That was based on the fact that pretrial decisions by Judge Alsup had already favored Google, and his jury instructions on the "fair use" rules were unbelievably unfair and biased. They made it sound like the hurdle for "fair use" was rather low, while it's actually just meant to be an EXCEPTION (and copyright protection is the norm).

Also, while Google was able to present all of the "evidence" and testimony that helped its defense, Oracle had been precluded from presenting the entirety of its willful-infringement evidence.

Presumably, Judge Alsup will deny Oracle's motion for judgment as a matter of law (JMOL), if his jury instructions are any indication. Then Oracle will appeal again. I predict Oracle is very likely to succeed once again on appeal.

Judge Alsup has already said he knows there will be appeals. Last time, Oracle's appeal didn't end well for him. What the circuit judges said at the appellate hearing was anything but flattering for him.

I almost forgot to mention, before going to bed (and I'll sleep well because all's well that ends well), that a jury verdict obviously has no precedential relevance of any kind. As I wrote before the trial even started: this trial wasn't going to resolve the question of unlicensed, incompatible API reimplementations either way. Several hours before the verdict I said on Twitter that trial courts are the WRONG forum to resolve overarching, big issues--and especially in this case.

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